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It is against the Adjudicator's decision to allow the appeal without considering the merits that the Secretary of State now appeals.
It is apparent that the form of words in paragraph 1 of the Rule is infelicitous and it has since been amended.
The position here is that the Adjudicator allowed the appeal without considering the merits, with the effect of granting the Claimant asylum. As we have said, we do not think that that was an appropriate application of Rule 33. Mr Bazini asked us to say that the application of the Rule by the Adjudicator was not unlawful or an obviously inappropriate exercise of his discretion. We disagree. The use of Rule 33 in order to grant asylum to an individual who has never established on the merits that he is or may be entitled to asylum would, in our view, always be an abuse of Rule 33.
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