U v Secretary of State for the Home Department

An appellate immigration tribunal may scrutinise factual evidence to decide whether an admitted error of law was material, including the possible weight of evidence wrongly excluded. It is not confined to asking whether the evidence might have supported a different result. Where, on the evidence accepted in the claimant’s favour, no reasonable tribunal could conclude that Article 8 required immigration action to be withheld, the error is immaterial. A late fairness challenge may be considered in an immigration case, but it requires material unfairness affecting the outcome. Strong family ties and disruption on removal do not, without more, outweigh immigration control.

The claimant arrived from Kosovo in 1998 and claimed asylum. The refusal decision was not served until 2001, and an adjudicator dismissed the asylum and Article 8 claims in 2003. The adjudicator had refused to hear further oral evidence from the claimant and his brother about their family relationship.

On reconsideration, the Asylum and Immigration Tribunal accepted the written evidence and accepted that the adjudicator should have heard the additional evidence, but held that the error was immaterial. The claimant appealed. The original grounds included the so-called Shala point concerning delay, but that ground was abandoned. The issues before the Court of Appeal were whether the tribunal had unlawfully assessed the evidence and whether it had acted unfairly by considering the possibility of family visits to Kosovo.

1. Appeal dismissed. The Court of Appeal held that the original grounds were unsustainable. The later fairness arguments were considered but also failed.
2. The tribunal was entitled to examine the factual evidence when deciding whether the adjudicator’s admitted failure to receive oral evidence was a material error of law. The broad submission based on Miftari v Secretary of State for the Home Department [2005] EWCA Civ 481 was misplaced. That case contained an obiter analysis of the former tribunal’s limited jurisdiction, and its wider approach had been disapproved by R (Iran). Read together, the authorities did not prevent examination of evidence for the limited purpose of deciding materiality. The procedural regime had also changed to reconsideration under article 5(2) of the commencement order.
3. The fairness complaint about the possibility of visits to Kosovo had not been raised in the grounds of appeal or the required procedural statement. The Court nevertheless considered it because this was an immigration case. The point was an additional and modest consideration. The tribunal had accepted the claimant’s evidence, had addressed the family circumstances in detail, and could not be said to have materially changed its view because of the possibility of visits.
4. The tribunal’s conclusion on materiality was not merely a statement of its own preference. It concluded that no reasonable tribunal could find that Article 8 proportionality required immigration action to be withheld. Strong emotional ties and disruption to family life were balanced against the claimant’s ability to live and work in Kosovo and the possibility of family visits. There was therefore no material error of law or unfairness.

• Court of Appeal (Civil Division) [2006] EWCA Civ 938: dismissed the appeal. Auld LJ and Richards LJ agreed with the judgment of Buxton LJ.
• Asylum and Immigration Tribunal: on reconsideration, it accepted that the adjudicator should have heard further Article 8 evidence but held that the error was not material and dismissed the appeal.
• Adjudicator: dismissed the asylum and Article 8 claims and refused further oral evidence concerning the claimant’s relationship with his brother and his family.