Verde v Secretary of State for the Home Department

A mistake of fact causing unfairness can constitute a separate ground of challenge on an appeal on a point of law in asylum proceedings where the parties share an interest in a correct result. The mistake may concern the existence or availability of evidence, rather than the truth of the underlying allegation. The evidence must concern an existing fact, be uncontentious and objectively verifiable, be outside the appellant’s responsibility, and have played a material part in the tribunal’s reasoning. On a remittal appeal, the court need not determine the truth of the new material or apply the strict proof required to set aside a judgment for fraud. It may remit for a de novo rehearing, leaving the tribunal to assess the complete evidence.

The respondent claimed asylum after arriving from Belgium, fearing return to Angola. An adjudicator accepted his account of involvement with an armed organisation and torture, but rejected his Refugee Convention claim under Article 1(F) and dealt unclearly with his Article 3 claim.

The Immigration Appeal Tribunal accepted the factual account and allowed the appeal under Article 3. Portugal later requested the respondent’s extradition and supplied material alleging that he had been in Portugal during the period when he claimed to have been detained in Angola. The Secretary of State sought a remittal based on that fresh material. The central issues were delay, whether the material justified reopening the appeal, and whether fraud had to be proved by strict evidence before remittal.

Appeal allowed. Lord Justice Buxton gave the substantive judgment. Lord Justice Scott Baker agreed, and Lord Justice Potter stated the formal order.

1. The earlier permission decision had squarely addressed whether the appeal should fail in limine, so that threshold question could not be reopened. Although prompt applications remained important, the seriousness of the allegations and their possible effect on the tribunal’s decision justified exercising the court’s discretion to hear the appeal.
2. In an asylum appeal, a mistake of fact causing unfairness is a separate head of challenge where the parties share an interest in achieving the correct result. The requirements identified in E and R v Secretary of State for the Home Department [2004] QB 1044 include an existing factual mistake, including a mistake about the availability of evidence; evidence which is uncontentious and objectively verifiable; absence of responsibility on the part of the appellant or advisers; and materiality to the tribunal’s reasoning. The court applied the observation in Khan v Secretary of State [2003] EWCA Civ 530 that fresh material should be admitted where it appears to show that the tribunal’s factual basis was wrong through no fault of its own.
3. The existence of the Portuguese allegations was uncontentious and objectively verifiable, even though their truth remained for the tribunal to determine. The material showed that the tribunal had proceeded without knowledge of relevant Portuguese investigations. Fairness therefore required the full facts and allegations to be considered.
4. This was an appeal based on fresh evidence, not an original action to set aside a judgment for fraud. The strict proof required in proceedings of the latter kind, illustrated by Asur Saribal v Secretary of State for the Home Department [2002] EWHC 1542 (Admin), R v Ashford, Kent, Justices, Ex parte Richley (No 2) [1956] 1 QB 167 and Jonesco v Beard [1930] AC 298, was therefore unnecessary.
5. The matter was remitted to the Immigration Appeal Tribunal for reconsideration de novo. The tribunal was to consider any further material relating to events in Portugal, bear in mind the evidence already heard, and remain unconstrained by its original decision. The court added, obiter, that the extradition proceedings should not be delayed by the remittal, since they concerned Portugal rather than the country of feared persecution, Angola.

The respondent’s public funding certificate was referred for detailed assessment.

• Court of Appeal (Civil Division) — On 6 December 2004, the appeal was allowed and the human rights application was remitted to the Immigration Appeal Tribunal for reconsideration de novo in light of the new evidence: [2004] EWCA Civ 1726.
• Immigration Appeal Tribunal — In December 2002, the Tribunal allowed the respondent’s appeal under Article 3, accepting that return to Angola carried a real risk of torture or other inhuman treatment.
• Adjudicator — The respondent was found credible, but the Refugee Convention claim was rejected under Article 1(F); the Article 3 issue was dealt with in terms the Court of Appeal considered unclear.