Koroma, R (on the application of) v Immigration Appeal Tribunal

An adjudicator deciding an immigration appeal must determine the case on the evidence adduced by the parties. The adjudicator has no obligation to investigate independently whether further relevant material is available. An adjudicator may consult additional material, but must give the parties an opportunity to address it before relying on it. A factual conclusion supported by the evidence before the adjudicator is not an error of law merely because further evidence might have been obtained. Fresh evidence on an appeal limited to an error of law is admissible only where it is relevant to demonstrating such an error, subject to the exceptional mistake-of-fact jurisdiction.

The claimant challenged the Immigration Appeal Tribunal’s decision of 9 August 2004. The Tribunal had allowed the Secretary of State’s appeal, quashed an adjudicator’s decision of 22 September 2003 and remitted the asylum appeal for rehearing.

The adjudicator had accepted the claimant’s account of persecution in Sierra Leone and concluded that returning her and her child would breach Article 3. The Tribunal held that the adjudicator should have consulted the publicly available 2003 CIPU report, after giving notice and an opportunity for representations. The central issue was whether failure to obtain and consider that report constituted an error of law.

1. The appeal was allowed. The Tribunal’s decision was set aside, the adjudicator’s decision was restored, and the Secretary of State was ordered to pay the claimant’s costs, subject to detailed assessment.

2. The adjudicator was entitled to decide the Article 3 issue on the evidential material placed before him. There was sufficient evidence to support his factual conclusion. His failure to obtain the 2003 CIPU report did not itself constitute an error of law.

3. Immigration adjudicators are subject to the ordinary adversarial principles applicable to judges generally. They are not obliged to investigate whether further evidence exists or to obtain material which might assist their decision. If an adjudicator chooses to obtain and rely on further material, fairness requires disclosure of that material and an opportunity for the parties to comment on it.

4. Applying the principles adopted in MA, fresh evidence on an appeal confined to an error of law must be relevant to showing that the adjudicator made an error of law which probably had an important influence on the result. The 2003 CIPU report did not satisfy that requirement. It could have supported a different factual conclusion, but it did not demonstrate an error of law in the adjudicator’s decision.

5. The exceptional mistake-of-fact jurisdiction identified in E did not assist the claimant. Although the absence of the report could fall within the concept of a mistake as to the availability of evidence, the claimant or her advisers were responsible for the omission. The ordinary Ladd v Marshall principles therefore applied.

• High Court (Administrative Court): Allowed the appeal, set aside the Immigration Appeal Tribunal’s decision and restored the adjudicator’s decision.
• Immigration Appeal Tribunal: On 9 August 2004, allowed the Secretary of State’s appeal, quashed the adjudicator’s decision of 22 September 2003 and remitted the matter for determination by another adjudicator.