Ucar, R (on the application of) v Immigration Appeal Tribunal & Anor

Under rule 18(11) of the Immigration and Asylum Appeals (Procedure) Rules 2000, the Immigration Appeal Tribunal is not generally required to consider evidence omitted before the adjudicator unless there was a good reason for the omission. That provision does not, however, prevent the Tribunal from considering such evidence. Section 77(3) of the Immigration and Asylum Act 1999 permits the Tribunal to take account of relevant evidence. Where fresh evidence is capable of undermining material findings and could affect the prospect of success on appeal, the Tribunal must consider it when deciding an application for leave to appeal. The appropriate remedy for failing to do so is to quash the refusal and remit the application for reconsideration.

The claimant, a Turkish national, claimed asylum on the basis of his Kurdish ethnicity, alleged support for HADEP and the PKK, and alleged arrest and torture. An adjudicator rejected his account and dismissed his appeal. After that decision, the claimant obtained a report from Mr McDowall, an expert on Middle Eastern affairs, addressing the political conditions in Turkey and matters bearing on the adjudicator’s credibility findings.

The report was referred to in the grounds of appeal to the Immigration Appeal Tribunal, but the Tribunal’s refusal of leave did not address it. Permission for judicial review was initially refused, then renewed. The central issue was whether the Tribunal had erred by failing to consider the report when determining whether leave to appeal should be granted.

1. The claim succeeded. The Tribunal’s refusal of leave to appeal was quashed. The application for leave was remitted to a different Tribunal member for reconsideration in the light of Mr McDowall’s report.
2. Rule 18(11) of the Immigration and Asylum Appeals (Procedure) Rules 2000 provides that the Tribunal need not consider evidence not submitted to the adjudicator unless there were good reasons for the omission. Its language does not prohibit consideration of fresh evidence where no good reason has been shown.
3. Section 77(3) of the Immigration and Asylum Act 1999 confirms that, in an asylum appeal, the Tribunal may take into account evidence which it considers relevant. The process is not intended to give parties a general opportunity to cure representative neglect, but the Tribunal retains a discretion to consider fresh material in appropriate cases.
4. The report should at least have been examined to determine whether it was capable of undermining the adjudicator’s reasons for rejecting the claimant’s credibility. The report contradicted or materially weakened three of the four credibility findings, including the conclusions concerning the claimant’s local HADEP activity, his release by the authorities and the alleged arrest connected with Nevroz leafleting. Its treatment of the alleged torture and absence of scarring was more limited.
5. Applying the approach illustrated by R v The Immigration Appeal Tribunal ex parte Aziz [1999] INLR 355, credible and sufficiently cogent evidence capable of affecting the decision should not readily be excluded from consideration at the leave stage. It was possible that the Tribunal might still refuse leave after considering the report, but that outcome was not inevitable.
6. Permission to appeal was refused by the High Court, with the defendant left to seek permission from the Court of Appeal. The claimant was awarded costs, subject to detailed assessment and the filing of the relevant certificate.

• Adjudicator: dismissed the claimant’s asylum appeal.
• Immigration Appeal Tribunal: refused leave to appeal.
• High Court (Administrative Court): quashed the Tribunal’s refusal and remitted the leave application for reconsideration. Permission to appeal was refused.