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

When an appellate tribunal considers fresh evidence in an asylum appeal, it must assess the evidence’s apparent credibility and potential significance together with the explanation for its late production. The failure to produce evidence at first instance may carry considerable weight, particularly where the appellant was represented, but it cannot automatically be treated as a preliminary and decisive issue. The tribunal must conduct the required overall balancing exercise. Only conduct amounting to an abuse of procedure or an affront to the administration of justice may justify refusing the evidence without considering its potential merits. On judicial review, remission is appropriate unless there is no real prospect that a properly directed tribunal could reach a different conclusion.

The appellant, an Iranian citizen claiming asylum on the basis of alleged persecution after abandoning Islam and becoming involved with Jehovah’s Witnesses, appealed unsuccessfully before a special adjudicator. He then sought leave to appeal to the Immigration Appeal Tribunal relying on fresh documentary evidence and proposed witnesses. The evidence had not been produced before the special adjudicator, allegedly because of advice from the Immigration Advisory Service.

The Tribunal granted leave on a limited basis and directed that the allegation against the former representatives be dealt with as a preliminary issue. It refused to admit the fresh evidence and dismissed the appeal. Scott Baker J refused judicial review. The central issue before the Court of Appeal was whether the Tribunal had lawfully exercised its discretion when refusing the fresh evidence without addressing its apparent credibility and possible impact.

1. Appeal allowed and matter remitted. The Tribunal was required to reconsider the application to adduce fresh evidence and then redetermine the appeal in light of its decision on admissibility.
2. The approach stated by Latham J in R v Immigration Appeal Tribunal ex parte Aziz [1999] INLR 355 governed the exercise of discretion. The evidence had to be apparently credible and capable of affecting the ultimate decision. Its late production and the explanation for non-production were relevant, but the Tribunal had to balance all relevant considerations.
3. The Tribunal was entitled to treat finality in litigation and the absence of a satisfactory explanation as important factors. It was also entitled to scrutinise evidence which could have been produced before the special adjudicator, particularly where the appellant had legal representation. Those considerations could often justify exclusion, but could not be placed in a separate compartment and treated as automatically decisive.
4. The Tribunal’s power to determine a matter as a preliminary issue under rule 23(4)(c) did not permit it to disregard the general law governing fresh evidence. Rule 27(3)(a) conferred a discretion to receive or decline further evidence, not a power to require the appellant first to establish misconduct by former representatives.
5. The conduct alleged in this case was unsatisfactory and might affect the appellant’s general credibility, but it did not amount to such an abuse of procedure that the Tribunal could refuse the evidence without considering its credibility, relevance and weight. The Court could not conclude that a properly directed Tribunal had no real prospect of reaching a different conclusion.
6. The Court therefore allowed the appeal, remitted the matter to the Immigration Appeal Tribunal, ordered costs to follow the event and directed a legal aid assessment.

• Court of Appeal (Civil Division): allowed the appeal against the refusal of judicial review and remitted the matter to the Immigration Appeal Tribunal.
• High Court, Administrative Court: Scott Baker J refused judicial review on 17 October 2000.
• Immigration Appeal Tribunal: refused to admit the fresh evidence and dismissed the appeal from the special adjudicator.
• Special adjudicator: rejected the appellant’s account and dismissed his asylum appeal.