Bashir v Secretary of State for the Home Department

Under rule 21 of the Immigration and Asylum Appeals (Procedure) Rules 2003, a party seeking to rely before an immigration tribunal on evidence not placed before the adjudicator must file written notice identifying the evidence and explaining its non-production. The burden lies on the appellant. The tribunal need not consider the material otherwise. Admission despite non-compliance remains possible in exceptional circumstances, particularly where the appellant is unrepresented and the evidence clearly relates to the grounds of appeal. A tribunal should explain how it treats such material, but failure to do so is not material where the evidence could not affect the outcome.

The appellant appealed against the Immigration Appeal Tribunal’s dismissal of his asylum appeal. The adjudicator had rejected his account as lacking credibility. An earlier tribunal decision was set aside by consent, and the matter was remitted after a supplementary bundle had not been considered. On the remitted appeal, the appellant’s solicitor referred orally to the bundle, but no written notice was filed under rule 21 of the Immigration and Asylum Appeals (Procedure) Rules 2003. The tribunal dismissed the appeal without addressing the material. The central issue was whether that omission rendered the decision unfair or required the appeal to be remitted.

1. The appeal was dismissed unanimously. Lord Justice Dyson gave the judgment, with Lord Justices Jonathan Parker and Kennedy agreeing. The appellant’s costs were subject to detailed assessment.
2. The transitional effect of rule 61 of the Immigration and Asylum Appeals (Procedure) Rules 2003 meant that rule 21 governed the admission of evidence not placed before the adjudicator. Its language was clear. The appellant had to file written notice identifying the nature of the evidence and explaining why it had not been submitted earlier. The burden was placed fairly and squarely on the appellant, and the tribunal had no obligation to consider fresh material in other circumstances.
3. The previous regime under the Immigration and Asylum Appeals (Procedure) Rules 2000 had given the tribunal a wider discretion to consider fresh evidence. Rule 21 represented a significant shift and imposed stricter requirements. The solicitor’s oral submissions did not amount to the required written notice and did not explain the evidence’s absence from the adjudicator’s hearing.
4. In exceptional circumstances, the tribunal could admit fresh evidence despite non-compliance. Such circumstances were more likely where the appellant was acting in person and where there was a clear link between the evidence and the grounds of appeal. Neither feature existed here. The appellant was represented, and the grounds made no reference to the supplementary material.
5. Dyson LJ considered that the tribunal should have explained precisely how it had treated the new material and should preferably have indicated its position during the hearing. That procedural criticism did not make the decision unfair. The Court examined the material and concluded that it could not have affected the adjudicator’s decision. Some documents were unexplained, inconsistent with the earlier evidence, vague, or equivocal. The credibility findings therefore remained safe, and remittal was unnecessary.

• Court of Appeal (Civil Division): On 19 May 2004, dismissed the appeal from the Immigration Appeal Tribunal’s decision of 23 September 2003.
• Immigration Appeal Tribunal: On 23 September 2003, dismissed the appeal after rehearing following remittal.
• Adjudicator: On 14 December 2001, dismissed the appeal against refusal of asylum.
• An earlier tribunal dismissal had been challenged in the Court of Appeal. By consent order dated 22 January 2003, that appeal was allowed and the matter remitted for rehearing.