Montes & Anor v Secretary Of State For Home Department

On an asylum appeal limited to questions of law, a mistake of fact becomes a distinct ground of challenge only where it concerns an existing fact or available evidence that is established, uncontentious and objectively verifiable; the appellant is not responsible for the mistake; and the mistake materially affected the decision. The jurisdiction must remain closely confined so that errors of fact are not converted into errors of law.

Fresh evidence is governed by the Ladd v Marshall principles, flexibly applied in public law. Departure is reserved for exceptional circumstances where the interests of justice require it. The same approach governs an application to an Immigration Appeal Tribunal to set aside its determination and order a rehearing under rule 30(2)(c) of the Immigration and Asylum Appeals (Procedure) Rules 2003.

A Colombian husband and wife appealed against the dismissal of their asylum claims. The Secretary of State had refused the claims, the Adjudicator dismissed their appeals on 21 October 2002, and the Immigration Appeal Tribunal dismissed their further appeals on 20 August 2003. The appellants appealed to the Court of Appeal with permission from Buxton LJ.

The appellants relied on new documents concerning later threats, the kidnapping of the president of a neighbourhood association, and alleged FARC interest in the association. They challenged both the Tribunal’s determination and its failure, on 10 September 2003, to set that determination aside and direct a rehearing under rule 30(2)(c) of the Immigration and Asylum Appeals (Procedure) Rules 2003. The central issues were whether the new material established a material mistake of fact amounting to an error of law, and whether it should be admitted or justify reopening the appeal.

1. Appeals dismissed. The court dismissed both the appeal against the Immigration Appeal Tribunal’s determination of 20 August 2003 and the appeal against its failure to set aside that determination under rule 30(2)(c) of the Immigration and Asylum Appeals (Procedure) Rules 2003. There was no order as to costs.
2. Lord Justice Dyson, giving the principal judgment, applied the closely circumscribed approach stated in E and R v Secretary of State for the Home Department. A mistake of fact, including a mistake about the availability of evidence, can found an appeal on a point of law where:
   • there was a mistake as to an existing fact or evidence;
   • the fact or evidence was established, in the sense of being uncontentious and objectively verifiable;
   • the appellant or advisers were not responsible for the mistake; and
   • the mistake played a material, though not necessarily decisive, part in the reasoning.
   The new documents did not satisfy that test. They showed, at most, limited evidence about FARC’s interest in the neighbourhood association in 2003, rather than establishing that the assessment of events in 2001 was mistaken.
3. The newspaper article was not sufficiently reliable to meet the requirement of uncontentious and objectively verifiable evidence. The appellants’ failure to explain why relevant material had not been obtained earlier also counted against admission of the evidence.
4. Fresh evidence remained subject to the Ladd v Marshall principles in public law. The evidence must not reasonably have been obtainable for the earlier hearing, would probably have materially influenced the result, and must be apparently credible. The principles are a starting point, with departure possible only in exceptional circumstances. No such circumstances existed.
5. The power under rule 30(2)(c) was discretionary. It was not a duty, and interference by the Court of Appeal required the Tribunal’s decision to be plainly wrong. In the absence of an apparent error of law, reopening would require a risk of serious injustice caused by something going wrong at the hearing or important evidence being overlooked. Applying the same fresh-evidence principles, any application would have failed; the appellants’ failure to apply could not improve their position.

Lord Justice May and Lord Justice Potts agreed with Lord Justice Dyson.

• Court of Appeal (Civil Division): dismissed the appeals against the Immigration Appeal Tribunal’s determination of 20 August 2003 and its failure on 10 September 2003 to set aside that determination under rule 30(2)(c) of the Immigration and Asylum Appeals (Procedure) Rules 2003.
• Immigration Appeal Tribunal: dismissed the appellants’ appeals on 20 August 2003.
• Adjudicator: dismissed the appeals against the Secretary of State’s refusal of the asylum claims on 21 October 2002.