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Effect of a determination on non parties

Written by
Colin Yeo
Date of Publication:
20 December 2010

The High Court recently had reason to consider the extent to which courts and tribunals are able to bind non-parties with a determination or judgment. The case is R (on the application of PM) v Hertfordshire County Council [2010] EWHC 2056 (Admin) (04 August 2010) and it makes interesting reading for anyone dealing with tribunal cases like NA & Others (Cambridge College of Learning) Pakistan [2009] UKAIT 00031.

Mr Justice Hickinbottom held, in short, that a tribunal determination is not binding on any person or body who was not party to the determination. The context was a disputed age assessment. Immigration Judge Lingard somehow, rather surprisingly some might think, found that an appellant who was assessed by the local social services department to be a child was nevertheless not a child. That social services department then considered itself to be found by this finding, following the Supreme Court judgment in R (A) v London Borough of Croydon; R (M) v London Borough of Lambeth [2009] UKSC 8.

The court held that this was the wrong approach and that the tribunal finding was not binding on the social services department. Indeed, it was even a mistake to consider the determination to be relevant evidence to take into account. Only new evidence submitted to the tribunal not previously seen by social services or the reasoning process of the tribunal judge should be taken into account.

Country Guideline cases, in which the tribunal makes a factual determination which is considered more or less binding on other parties, received the imprimatur of the Court of Appeal. Not so other attempts, like NA, to issue factually binding determinations. This case very much throws doubt on the approach most Immigration Judges have been taking to Cambridge College of Learning cases.