E v Secretary of State for Home Department

A tribunal’s material mistake about an existing, established and objectively verifiable fact may cause unfairness amounting to an error of law. Ordinarily, the appellant must not be responsible for the mistake.

Fresh evidence tendered on an appeal limited to questions of law remains subject to the Ladd v Marshall principles. Those principles are the starting point, although exceptional circumstances and the wider interests of justice may justify departure from them.

When considering permission to appeal, the Immigration Appeal Tribunal had an unqualified discretion under rule 30(2)(c) of the Immigration and Asylum Appeals (Procedure) Rules 2003 to set aside its determination and direct a rehearing. Finality remained important, and reopening would normally require a risk of serious injustice.

These joined appeals concerned two unsuccessful asylum applicants. E was an Egyptian national who feared detention and torture because of his alleged association with the Muslim Brotherhood. R was an Afghan national who feared persecution as a convert from Islam to Christianity.

In each case, relevant country information emerged after the Immigration Appeal Tribunal hearing but before its delayed determination was promulgated. The appellants relied on that information when seeking permission to appeal. The Tribunal refused to consider it because it had not been before the Tribunal at the hearing.

The central issues were whether a material mistake of fact could constitute an error of law, when fresh evidence could be admitted to establish such a mistake, and whether the Tribunal could set aside its determination and direct a rehearing when considering an application for permission to appeal.

1. The appeals were allowed and both matters remitted to the Immigration Appeal Tribunal. The Tribunal had erred in treating the new evidence as automatically excluded. It should have considered whether the evidence justified exercising its discretion to set aside its determinations and direct rehearings.

2. A mistake of fact giving rise to objective unfairness is a separate ground of challenge on an appeal limited to a question of law, at least where the parties share an interest in achieving the correct result. Ordinarily: the mistake must concern an existing fact, including the availability of evidence; the fact must be established and objectively verifiable; the appellant or the appellant’s advisers must not be responsible for the mistake; and the mistake must have played a material, though not necessarily decisive, part in the tribunal’s reasoning.

3. The Court of Appeal’s discretion to receive fresh evidence remained governed by the principles in Ladd v Marshall [1954] 1 WLR 1489. The evidence should ordinarily have been unavailable despite reasonable diligence, capable of an important influence on the result, and apparently credible. Those principles remained the starting point in public law and asylum appeals, but exceptional circumstances and the wider interests of justice could justify departure. The duty of anxious scrutiny did not enlarge the statutory jurisdiction of an appeal confined to questions of law.

4. The Tribunal remained seized of an appeal until its determination was formally communicated to the parties. It could therefore receive further evidence before promulgation. After promulgation, rule 30(2)(c) of the Immigration and Asylum Appeals (Procedure) Rules 2003 empowered it, when considering a point-of-law permission application, to set aside its determination and direct a rehearing. The power did not depend on an arguable error of law in the original determination.

5. The rehearing discretion was nevertheless constrained by finality. In the absence of an apparent error of law, reopening would normally require a risk of serious injustice arising from something which went wrong at the hearing or from important evidence which had been overlooked. The Tribunal should be guided by the Ladd v Marshall principles, subject to exceptional circumstances.

6. The new country reports concerning Egypt were credible and cast doubt on the Tribunal’s understanding of the treatment of Muslim Brotherhood members, although their likely effect on E’s individual risk was uncertain. The country material concerning Afghan apostates was also credible and potentially significant. The expert evidence tendered for R appeared to fail the reasonable-diligence requirement. Whether the admissible material would probably have influenced either result was for the Tribunal to determine.

• Court of Appeal (Civil Division): In E v Secretary of State for Home Department [2004] EWCA Civ 49, the court allowed both appeals because the Immigration Appeal Tribunal had wrongly failed to consider its discretion to direct rehearings. Both matters were remitted.

• Immigration Appeal Tribunal: The Tribunal dismissed both asylum appeals. When subsequently asked for permission to appeal, it refused to consider the new evidence because that material had not been before it at the respective hearings.

• Adjudicators: The adjudicators dismissed E’s and R’s asylum appeals. The Tribunal upheld those determinations.