R v Secretary of State for the Home Department

On remission of an immigration appeal after an error of law, the appellate tribunal must conduct an adequate and genuinely fresh fact-finding exercise where the earlier analysis was defective. The rehearing should normally be before a differently constituted tribunal, with the appellant given an opportunity to give evidence. Previous findings should not influence the tribunal’s own findings and conclusions.

The court declined to prohibit the tribunal from reading earlier determinations. The tribunal does not apply res judicata or estoppel, but procedural questions concerning the use of earlier material are ordinarily for the tribunal, applying its expertise and the circumstances of the case.

The appellant, a Pakistani citizen, claimed asylum on arrival in the United Kingdom. His asylum and human-rights appeals were dismissed by an adjudicator. The Immigration Appeal Tribunal later found errors of law in the adjudicator’s treatment of the evidence, but held that they were immaterial and allowed the adjudicator’s decision to stand.

On the appellant’s application for permission to appeal, permission was granted. The Secretary of State accepted that the tribunal’s decision could not stand and that the matter should be remitted to a differently constituted tribunal. The dispute concerned whether remission should require a complete rehearing, whether it should be limited to future risk on the appellant’s factual case taken at its highest, and whether the tribunal should be prevented from reading earlier determinations.

1. Appeal allowed. The tribunal had identified an error of law in the adjudicator’s consideration of the evidence but had not itself adequately analysed the evidence or the limitations in the adjudicator’s approach. That was itself an error of law.
2. The matter was remitted to a differently constituted tribunal for a full fact-finding exercise. The appellant was to have an opportunity to give evidence. The tribunal was to approach the evidence afresh, make its own findings of fact and draw its own conclusions, uninfluenced by findings previously made.
3. The court declined to direct the tribunal not to read the earlier determinations. The earlier adjudicator’s decision remained in force, although that did not prevent a full reconsideration of the evidence. The principle preserved by Djebbar v Secretary of State [2004] EWCA Civ 804 was that each new application must be decided independently on its individual merits. Res judicata and estoppel did not apply.
4. The practical consequences of excluding earlier determinations, while allowing access to other material and later oral evidence, were substantial. The tribunal should therefore decide the procedural question, after first considering this court’s judgment and, if appropriate, hearing the appellant’s submission on the point. The conduct of the hearing was otherwise left to the tribunal, applying its expertise, including on procedural issues.
5. The transitional point under Rule 62 of the Asylum and Immigration Tribunal Procedure Rules 2005 was not material to the issue. The permission granted was sufficiently broad to enable consideration of the issue addressed by the tribunal.
6. Lord Justice Rix and Lord Justice Dyson agreed with Lord Justice Pill.

• Court of Appeal (Civil Division) — Permission to appeal granted and appeal allowed. The Immigration Appeal Tribunal’s decision was set aside and the matter was to be remitted to a differently constituted tribunal.
• Immigration Appeal Tribunal — On 15 June 2005, it found an error of law in the adjudicator’s determination but held that the error was not material, leaving the decision standing on asylum and human-rights grounds.
• Adjudicator — The appellant’s appeals on asylum and human-rights grounds were dismissed. The determination was dated 25 March 2004.