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

An appellate tribunal must decide whether the decision under appeal discloses an error of law on the material properly before it. Its specialist knowledge may be used, but it does not generally require the tribunal to investigate new country evidence which was neither pleaded nor placed before it. The duty to consider an unpleaded point arises where the point emerges clearly from the material before the tribunal, demonstrates an error in the decision appealed from, and is likely to affect the result. Later changes in conditions which could not show that the original decision was erroneous should ordinarily be raised through a fresh challenge to any removal decision, supported by up-to-date evidence.

The claimant, an Ivorian national, challenged the Immigration Appeal Tribunal’s refusal of permission to appeal from an adjudicator’s dismissal of her asylum and human-rights appeals. The adjudicator had assessed the evidence available at the hearing in August 2002. A coup and subsequent civil disturbances in Côte d’Ivoire emerged around the time the adjudicator’s decision was published, but were not pleaded in the grounds seeking permission and were not supported by evidence before the Tribunal.

The Tribunal nevertheless referred to the current situation and stated that removal would doubtless await an improvement. The central issue was whether that knowledge imposed a duty on the Tribunal to investigate and consider the changed circumstances when deciding whether the adjudicator’s determination disclosed an error of law.

1. Application dismissed. The adjudicator’s determination disclosed no error of law on the evidence and material before her. Permission to appeal was refused.
2. The appeal process forms part of the overall decision-making process on an asylum application. The Immigration Appeal Tribunal may use its accumulated knowledge and expertise in dealing with particular cases. That enables speedy disposal of immigration appeals, but does not convert the permission stage into a general reconsideration of current conditions.
3. The authorities, including Ravichandran [1996] Imm AR 97, ex parte Robinson [1997] 4 All ER 210, and Naing and Eyaz (unreported, 21 March 2000), establish a limited duty notwithstanding rule 18(6) of the Immigration and Asylum (Procedure) Rules 2000. Where an unpleaded point emerges clearly from material before the Tribunal, indicates that the decision under appeal contains an error, and is likely to affect the result, the Tribunal must take it into account.
4. That duty did not arise here. The coup occurred after the adjudicator had heard the case, and the changed country conditions were neither pleaded nor evidenced before the Tribunal. The new material therefore could not be admitted to demonstrate that the adjudicator’s earlier decision was wrong. Requiring the Tribunal to consider it would distort the appeal process.
5. Haile [2002] INLR 283 was exceptional. It concerned the admission of evidence showing that an adjudicator had made a mistake about important facts. It did not require admission of later evidence merely because circumstances had changed after the adjudicator’s decision.
6. The claimant could make a fresh application for judicial review of any decision to remove her, relying on current evidence concerning conditions in Côte d’Ivoire and the risks on return. That alternative route preserved the United Kingdom’s obligations under the Refugee Convention and the European Convention. The application was dismissed, permission to appeal was declined, and the usual costs order was made in view of public funding.

• Immigration Appeal Tribunal: refused permission to appeal from the adjudicator’s dismissal of the asylum and human-rights appeals.
• High Court (Administrative Court): dismissed the application for judicial review of that refusal and declined permission to appeal.