Haile v Immigration Appeal Tribunal

Fresh evidence on judicial review is not governed inflexibly by the principles applicable to ordinary civil appeals. Finality remains important, but the court may depart from those principles where the wider interests of justice require it.

In an asylum case, relief may therefore be granted despite a failure to discover evidence with reasonable diligence where the evidence exposes a significant factual mistake in the tribunal’s reasoning, creates a profound sense of injustice and may have affected the result. The presence of other reasons supporting the decision does not cure the mistake if the court cannot confidently conclude that it made no ultimate difference.

An Ethiopian national appealed against Mackay J’s dismissal of his judicial review application. The application challenged the Immigration Appeal Tribunal’s refusal of leave to appeal from a third special adjudicator’s rejection of his asylum claim.

After the High Court judgment, evidence established that the special adjudicator had misheard or misnoted the appellant’s identification of a political party. The resulting mistake supplied one of six reasons for rejecting his credibility. The Court of Appeal granted permission solely to determine the effect of that fresh evidence and whether the wider interests of justice justified reopening the decision.

1. Appeal allowed unanimously. Lord Justice Simon Brown delivered the leading judgment. Lord Justice Mummery and Lord Justice Longmore agreed.

2. The special adjudicator had mistakenly recorded that the appellant identified the captain’s party as EPRF rather than EPRP. The adjudicator then relied on that supposed answer to infer an incompatibility between the captain’s political affiliation and his alleged association with COEDF. The sixth reason for rejecting the appellant’s credibility was therefore wholly false.

3. The mistake supplied only one of six credibility reasons, and the evidence could and should have been discovered earlier. Nevertheless, the error created a profound sense of injustice. The court could not confidently conclude that it made no ultimate difference to the outcome.

4. The principles in Ladd v Marshall concerning reasonable diligence, probable influence on the result and apparent credibility remain relevant when the court exercises its discretion under Civil Procedure Rules 52.11(2). They do not apply inflexibly in public law proceedings. The policy favouring finality is subject to the court’s discretion to depart from it where the wider interests of justice require.

5. Al-Mehdawi did not prevent the court from considering the wider interests of justice. The present proceedings concerned asylum rather than student leave, and aspects of that authority might require reconsideration following R v Criminal Injuries Compensation Board, ex parte A.

6. The wider interests of justice required the fresh evidence to be admitted. Mackay J’s order was set aside, solely because of that evidence, and the Immigration Appeal Tribunal’s refusal of leave to appeal was quashed on the same basis. The appellant’s prospects on a further adjudication remained poor, but that did not justify leaving the defective decision in place.

1. Court of Appeal (Civil Division): The appeal was allowed unanimously. Fresh evidence was admitted, Mackay J’s order was set aside and the Immigration Appeal Tribunal’s refusal of leave was quashed.
2. Administrative Court: Mackay J dismissed the application for judicial review on 26 January 2001.
3. Immigration Appeal Tribunal: On 28 March 2000 the tribunal refused leave to appeal from the third special adjudicator’s determination.
4. Special adjudicator: On 24 February 2000 the appellant’s third asylum appeal was dismissed on credibility grounds.