Lusala, R (on the application of) v Secretary of State for the Home Department

An appeal on a point of law cannot succeed because material relevant to the claim was unavailable to the tribunal when it made its decision. New evidence or changed country information must ordinarily be put to the Secretary of State, rather than introduced for the first time on appeal. A very limited exception exists for a clear mistake of fact in the tribunal’s decision, but that exception requires circumstances materially different from the ordinary disagreement about evidence or the arrival of later material.

The appellant, a national of the Democratic Republic of Congo, claimed asylum and human-rights protection on grounds including Hutu ethnicity and objection to military service. The adjudicator rejected the claim on 30 August 2002. The Immigration Appeal Tribunal refused the appeal in a determination notified on 9 June 2003.

Before the Court of Appeal, the appellant relied on country information, including a UNHCR report discussed in M(DR Congo) v SSHD (UKIAT00071), decided after the tribunal had dealt with his case. He argued that the tribunal should have considered that material or that the case should be remitted for it to do so. The central issue was whether the later material disclosed an error of law in the tribunal’s decision.

1. Appeal dismissed. The tribunal could not be in error of law for failing to consider material which was not before it at any stage when it was seized of the case. An appeal to the Court of Appeal remains an appeal on a point of law arising from the tribunal’s decision.
2. The court considered the earlier approach in Polat v SSHD [2003] EWCA Civ 1059, where the Secretary of State had conceded that, in exceptional circumstances, failure to take account of a report submitted during the permission process was an error of law warranting a rehearing. That concession did not assist here because the UNHCR material was not available to the tribunal when it considered the case.
3. As made clear in E and R v Secretary of State [2004] EWCA Civ 49, the ordinary remedy where relevant new material emerges is to place it before the Secretary of State. The only relevant exception identified was a clear mistake of fact in the tribunal’s decision. That exception is narrowly confined, and the facts fell nowhere near it.
4. The court declined to assess the substantive relevance of the country material because the matter might require further consideration by the Secretary of State. Permission to appeal was refused. A public funding order was made in respect of the appellant’s costs.

• Immigration Appeal Tribunal: refused the appeal in a determination notified on 9 June 2003.
• Adjudicator: rejected the asylum and human-rights claim on 30 August 2002.
• Court of Appeal (Civil Division): dismissed the appeal and refused permission to appeal.