Azkhosravi, R (on the application of) v Immigration Appeal Tribunal

Permission to appeal should be granted where it is reasonably arguable that an appellate tribunal, when deciding whether to admit fresh evidence in an asylum appeal, failed to consider material aspects of the Ladd v Marshall considerations. These include the apparent credibility of the proposed evidence and its likely importance to the outcome. The tribunal must also examine why the evidence was not produced earlier, particularly where competent representation was involved. The Court of Appeal gave permission without expressing a view on the merits of the proposed appeal.

The claimant, an Iranian asylum seeker who claimed to be a Jehovah’s Witness, was disbelieved by a special adjudicator. The Immigration Appeal Tribunal granted limited permission to appeal to consider fresh evidence, but refused to admit it after finding that the explanation for its earlier absence was unsatisfactory and that misleading assertions had been made.

Scott Baker J refused judicial review, holding that the Tribunal had acted lawfully and fairly. Laws LJ refused permission on paper. The issue before May LJ was whether it was reasonably arguable that the Tribunal had failed to consider the proposed evidence’s apparent credibility and likely importance, as well as the circumstances in which it had not previously been produced.

1. Permission granted. The application for permission to appeal was allowed. The Court expressed no view on the likelihood of the appeal succeeding.
2. In considering whether fresh evidence should be admitted in an asylum appeal, the appellate tribunal must have regard to the material considerations identified in Ladd v Marshall, including whether the evidence appears credible and whether it could have an important influence on the result. The requirement concerning reasonable diligence may have less force in asylum appeals, although it remains relevant.
3. The circumstances in which evidence was not produced before the special adjudicator require careful examination. Where there was apparently competent representation, those circumstances may be closely connected with the credibility of the proposed evidence.
4. It was reasonably arguable that the Immigration Appeal Tribunal had concentrated on the unsatisfactory explanation for the evidence’s absence and had not explicitly considered its apparent credibility or importance. The determination, the permission document and the chairman’s affidavit contained no clear indication that those matters had been weighed.
5. The order granting permission was made with detailed assessment of the applicant’s costs if the matter did not proceed.

• Court of Appeal (Civil Division): Permission to appeal from the Administrative Court was granted. The Court did not determine the substantive appeal.
• Administrative Court: Scott Baker J refused judicial review of the Immigration Appeal Tribunal’s decision.
• Immigration Appeal Tribunal: Refused to admit the fresh evidence and dismissed the appeal on the basis that the explanation for its earlier omission was unsatisfactory.
• Special adjudicator: Dismissed the asylum appeal after rejecting material parts of the claimant’s evidence.