Kaydanyuk v Secretary of State for the Home Department

An appeal on a point of law cannot become a reconsideration of an Immigration Appeal Tribunal’s determination merely because the appellant’s condition worsens afterwards. A mistake-of-fact challenge requires an existing fact, including the availability of evidence, which is established, uncontentious and objectively verifiable. The appellant or advisers must not be responsible for the mistake, and it must materially influence the Tribunal’s reasoning. A later deterioration in depression or suicide risk is a new development, not a mistake about an existing fact. The appropriate route is a fresh application to the Secretary of State. A refusal may be challenged by judicial review on public-law grounds.

The appellant, a Ukrainian national, had his asylum and human-rights appeal dismissed by an Adjudicator and then by the Immigration Appeal Tribunal on 11 June 2004. After the Tribunal’s decision, his depression and suicide risk deteriorated substantially. He argued that the later medical evidence demonstrated a mistake of fact causing unfairness and therefore a legal error under section 103(1) of the Nationality Immigration and Asylum Act 2002. He also relied on Articles 3 and 8 of the European Convention on Human Rights and Fundamental Freedoms. The central issue was whether later developments in health and suicide risk could establish an error of law in the Tribunal’s earlier determination.

Appeal dismissed unanimously. Maurice Kay LJ delivered the judgment, with Jonathan Parker LJ and Brooke LJ agreeing.

1. An appeal from the Immigration Appeal Tribunal to the Court of Appeal under section 103(1) of the Nationality Immigration and Asylum Act 2002 lies only on a point of law. The appellant accepted that the Tribunal’s determination was unimpeachable on the material before it.
2. The court applied the approach in E and R v Secretary of State for the Home Department, [2004] EWCA Civ 49; [2004] QB 1044. A mistake of fact causing unfairness is a separate head of challenge in an appropriate statutory context, including asylum law. The requirements are an existing factual mistake, established and objectively verifiable evidence, no responsibility for the mistake on the part of the appellant or advisers, and material influence on the Tribunal’s reasoning. The approach derived from R v Criminal Injuries Compensation Board, ex parte A, [1999] 2 AC 330.
3. The first requirement was not met. The Tribunal had Dr Winton’s report of 4 May 2004, considered it, and reached a correct view of the evidence then available. The fact that the suicide risk increased after, and partly as a result of, the Tribunal’s determination did not show that the Tribunal had been mistaken about an existing fact.
4. The court’s examples included a later diagnosis of serious illness and a later deterioration in country conditions. Such developments do not establish an error of law in the earlier determination. If the later material could otherwise establish a mistake, it would have been material because the Tribunal would have approached suicide risk differently. The court nevertheless based its conclusion on the failure to establish an existing factual mistake. It also noted some force in the argument that opinions about mental state and future risk might not be uncontentious and objectively verifiable.
5. The proper remedy was a fresh application to the Secretary of State. A refusal of that application would be susceptible to judicial review on public-law grounds. The appeal was dismissed.

1. Court of Appeal (Civil Division): On 4 April 2006, dismissed the appeal from the Immigration Appeal Tribunal.
2. Immigration Appeal Tribunal: Dismissed the appellant’s appeal on asylum and human-rights grounds on 11 June 2004.
3. Adjudicator: Dismissed the appeal on asylum and human-rights grounds on 15 September 2003.
4. Secretary of State for the Home Department: Refused the asylum application on 24 April 2003.