Khan v Secretary of State for the Home Department

An appellate court may admit apparently credible fresh evidence where it shows that the factual basis on which an immigration tribunal proceeded was simply wrong. If the new material undermines the tribunal’s decisive finding, the appeal may be allowed and the matter remitted for reconsideration. The opposing party must first have a proper opportunity to investigate the evidence and decide whether to maintain its opposition.

A stateless Bihari appealed from the Immigration Appeal Tribunal’s dismissal of his asylum and human rights appeal. The Tribunal had found insufficient evidence that he would be detained if returned to Bangladesh and had therefore declined to determine whether detention conditions would contravene article 3 of the European Convention on Human Rights.

Fresh translations of Bangladeshi court documents were produced shortly before the Court of Appeal hearing. They appeared to show that the appellant had been convicted in his absence and sentenced to ten years’ imprisonment with labour. The central issue became whether the court should admit that evidence and remit the case because it undermined the factual basis of the Tribunal’s decision.

1. Appeal allowed unanimously and matter remitted. May LJ held that the court should admit the apparently credible fresh evidence. Although its precise jurisdictional basis did not require determination, justice plainly required the material to be considered. The Secretary of State had received it only recently and retained the opportunity to investigate its credibility: paras [25]–[28].
2. The translated documents appeared to show that a Bangladeshi court had convicted the appellant in his absence and sentenced him to ten years’ imprisonment with labour and a fine. Taken at face value, that evidence supported the assumption that he would be arrested and required to serve the sentence if returned. It therefore undermined the factual basis of the Tribunal’s conclusion that he was unlikely to be detained: paras [25]–[27].
3. The Court of Appeal could not determine whether the appellant would serve his sentence in the category of prison previously considered by the Tribunal. The Secretary of State first had to consider the new evidence and decide whether opposition to the appeal before the Tribunal should continue. If opposition continued, the Tribunal had to reconsider the case using material that included the fresh evidence: para [27].
4. Carnwath LJ agreed. Whatever the precise limits of the court’s power to receive new evidence in such a case, it should do so where material appeared to establish that the Tribunal’s factual basis was, through no fault of its own, simply wrong: paras [29]–[30]. Ward LJ agreed with both judgments. The appeal was allowed, the matter was remitted to the Immigration Appeal Tribunal, and a detailed public funding assessment of the appellant’s costs was ordered: para [31].

1. Court of Appeal (Civil Division): The appeal was allowed unanimously and the matter was remitted to the Immigration Appeal Tribunal for reconsideration in light of the fresh evidence: [2003] EWCA Civ 530.
2. Immigration Appeal Tribunal: The Tribunal dismissed the appeal in a determination dated 15 August 2002. It was not satisfied that the appellant was likely to be detained on return to Bangladesh.
3. Special adjudicator: The adjudicator dismissed the asylum and human rights appeal in a determination promulgated on 15 February 2002.