Shaheen v Secretary of State for the Home Department

An appellate court with jurisdiction confined to errors of law should intervene for a mistake of fact only where the mistake concerns an existing fact or evidence, is established as uncontentious and objectively verifiable, was not caused by the party relying on it, and materially affected the decision. A disputed witness account or later evidence strengthening one side of a factual dispute cannot reopen the merits through an appeal on law. Finality is especially important where factual appellate jurisdiction has been removed. A separate route may exist where sufficiently cogent evidence shows that a decision was procured by fraud, but the wider relationship between factual error, newly discovered facts and fraud was left for future consideration.

Mrs Shaheen, a Pakistani national, said that her husband had seriously abused her in Pakistan and that the Pakistani authorities would not protect her. The adjudicator accepted her account, rejected internal relocation, allowed her appeal against the refusal of asylum and made a favourable human rights finding.

After the adjudicator’s hearing, the Secretary of State obtained evidence from Mrs Shaheen’s husband suggesting that the couple had remained in the United Kingdom during the alleged period of abuse. The Immigration Appeal Tribunal refused to admit that evidence and dismissed the Secretary of State’s appeal. The Secretary of State appealed, arguing that the Tribunal had applied the wrong approach to mistake of fact and materiality, and sought to rely on further hospital records.

Brooke LJ gave the leading judgment, with Sedley LJ and Jonathan Parker LJ agreeing. The appeal was dismissed because the Immigration Appeal Tribunal had committed no error of law.

1. Appellate jurisdiction. The Tribunal had no jurisdiction to allow an appeal on an error of law which had not been raised in the grounds of appeal. This was established by B v SSHD [2005] EWCA Civ 61, Miftari v SSHD [2005] EWCA Civ 481 and R (Iran) v SSHD [2005] EWCA Civ 982.
2. Mistake of fact. The ordinary requirements identified in E and R v SSHD [2004] EWCA Civ 49 were that there was a mistake about an existing fact or the availability of evidence; the fact or evidence was uncontentious and objectively verifiable; the party relying on the mistake was not responsible for it; and the mistake materially affected the reasoning. The requirements were not intended to constitute a precise code.
3. Contested evidence. A distinction had to be drawn between a fact demonstrated beyond peradventure to be wrong and a disputed factual issue supported by new evidence. The present case fell into the latter category. Mrs Shaheen and her brother consistently disputed the husband’s account, so the alleged location of the parties was not uncontentious and objectively verifiable. The hospital evidence merely strengthened one side of the dispute and could not rescue an appeal argued on a legally defective basis. The Tribunal’s separate view on materiality was wrong, but that did not affect the outcome.
4. Further observations. The court was not required to decide whether to admit the hospital evidence. Finality in litigation required caution against reopening factual appeals indirectly. If sufficiently cogent evidence established fraud, the Secretary of State could take appropriate steps concerning the decision; a mere hospital letter was unlikely to meet that standard in the face of Mrs Shaheen’s denials. Brooke LJ expressed reservations about Cabo Verde v SSHD [2004] EWCA Civ 1726 and its treatment in R (Iran), but stated that his proposed framework was non-binding and for future debate.

• Court of Appeal (Civil Division): In [2005] EWCA Civ 1294, dismissed the Secretary of State’s appeal and held that the Immigration Appeal Tribunal had made no error of law.
• Immigration Appeal Tribunal: On 22 November 2004, dismissed the Secretary of State’s appeal from the adjudicator and refused to admit the further evidence.
• Adjudicator: On 17 November 2003, allowed Mrs Shaheen’s appeal against the refusal of asylum and made a favourable human rights finding.