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Grounds of appeal in one stop appeals


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Do not be fooled by the first judgment in AS (Afghanistan) v Secretary of State for the Home Department [2009] EWCA Civ 1076 by Lady Justice Arden. She holds that the appeal should be dismissed, but is out-voted by the rest of the bench, Lord Justice Moore-Bick and Lord Justice Sullivan.

The judgment concerns the nature of appeals and the convoluted link between rights of appeal and grounds of appeal created unnecessarily in the 2002 Act at sections 82 and 84. By a majority, the Court holds that as long as there is a right of appeal then any ground of appeal can be argued, no matter what the nature of the decision appealed against. For example, if a decision is made to deport an individual, that person can appeal on all available grounds, including race relations, EEA law, refugee grounds and so on.

I was surprised and slightly alarmed to read in Arden LJ’s judgment that there was even an argument that this was not the legal position. I always assumed that it was and have blithely assured immigration judges and instructing solicitors of this on several occasions in the past.

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The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.


14 Responses

  1. First there was Lady Scotland’s blunder of employing an illegal immigrant.
    Then there was Ms Arfon-Jones (Deputy President of the tribunal) unsure of the Metock implications.
    Now there’s LJ Arden, unsure about basic legal principles, “right of appeal” & “grounds of appeal”.

    How is it that these women, near the top of their profession, got promoted to their senior positions?
    The argument that it was ability is looking decidedly wobbly.

    1. Don’t be so ridiculous, Mr T. There are plenty of men with whose judgment you would also disagree, but I don’t see you singling them out. This blog is no place for that kind of misogyny.

    2. FM

      Yes indeed, the incompetent judge I got was male, and he made 7 major mistakes in his adjudication.

      I was trying to be topical.

  2. That’s what you get when you let women out of the kitchen Mr T. Male judges would never make such mistakes…..

  3. FM what happens in a case like this? I ask because i’ve seen references to Chikwamba quoting the various Law Lords’ opinions. As LJ Arden has given what looks like an incorrect position could her parts be relied upon if someone used this case to argue in court?

    1. Minority judgments do not form part of the ratio decidendi of the judgment of the court, which is the important bit that binds later judges. However, they can sometimes later be seen to be influential or far-sighted. It wasn’t that her position was incorrect. She disagreed with the majority and was outvoted.

    2. How about when a judge agrees with the decision and the main body of the determination written by his colleague, but adds a few remarks himself? Can such remarks be relied upon in future cases?

    3. I feel I’m repeating myself here and this isn’t a great place to deliver basic law lectures. Such comments will not be the ratio decidendi, i.e. the core, binding element of a judgment, but may be influential. I’m sorry if my answer is fuzzy, but this is not a straightforward question to answer.

  4. Hi Fm,
    Just need you to clarify this point, is an immigration appeal judge allow or permitted to be satisfy with grounds of an appeal put before him only to dismiss such appeal on another ground of which he came up with and not that of the home office, or shall I say he was satisfy with the appeal but refuse the appeal on another ground which he (appeal judge) later came up with) and not the home office.

    1. That’s not an easy question, I’m afraid. The answer should be ‘no’ but is really ‘maybe, subject to fair procedure’. If notice is given and the person has an opportunity to present evidence about the new issues then it is something an immigration judge can do. Unfortunately, it is not uncommon for new issues to be raised at a hearing without notice and then to become the basis of the determination.

    2. Thanks alot Fm,
      A reconsideration was granted on this issue and a notice for the reconsideration date given,however, I believe an immigration appeal judge should not be bias and only deal with the real appeal issue put before him/her without coming up with their own reason for refusal.They are in my opinion (not a solicitor) should be neutral in an appeal case, they should only deal with the subject matter and not to act as an extention of the OH.

      If such continue then people will loose faith in the whole appeal process, as one will believe that the appeal judge (AIT)and HO are one and the same, if what the judge came up with was part of the inicial reason for refusal by HO then evidence will have being put forward at the first appeal process without the need for urther appeal.

      Is there any forum you could take up this issue with the appropriate authority? I shall appreciate this alot as it will bein the interest of all.

      Many thanls once again

  5. i agree: i always thought that this position was clear! (although have been looked at blankly by IJs).