TN (Bangladesh) v Secretary of State for the Home Department

Where an immigration appeal has been derailed by an established error of fact attributable to the Secretary of State, the appellate decision may be quashed even if the appellant’s evidence was incomplete. Fresh evidence may exceptionally be admitted in the interests of justice where it is unchallenged and decisive, despite being obtainable earlier. The decisive question may be whether the evidence can properly be considered when the appellant comes before the tribunal, rather than merely whether it accompanied the original application. The matter should then be reconsidered in light of the appellant’s current circumstances and the applicable Immigration Rules.

The appellant, a Bangladeshi student, appealed against Senior Immigration Judge Gill’s decision concerning his application for further leave to remain as a student. The decision proceeded on the mistaken assumption that he had relied on an enrolment at Regal Academic College of London, although that reference had been inserted erroneously by the Secretary of State. The judge also treated evidence of enrolment at Abbey College London as absent and viewed the appellant’s movements between colleges adversely.

The appellant sought permission to appeal and admission of letters confirming enrolment at Abbey before the Secretary of State’s refusal. The central issues were whether the tribunal decision was vitiated by material error of law and whether the fresh evidence should be admitted.

1. Appeal allowed. Permission to appeal was granted and the fresh evidence was admitted.
2. Senior Immigration Judge Gill’s determination was vitiated throughout by the Secretary of State’s established error concerning Regal Academic College. Regal was irrelevant to the appellant’s application, yet its absence from the Register was treated as sufficient to dispose of the appeal. The same error distorted the assessment of credibility by creating a false sequence of movements between institutions.
3. The appellant’s failure to state expressly that he knew nothing about Regal did not materially contribute to the error. Responsibility lay with the Secretary of State.
4. The ordinary approach in Ladd v Marshall [1954] 1 WLR 1489 required consideration of reasonable diligence, likely importance and apparent credibility. The evidence was unchallenged and decisive. Although it could have been produced earlier, this was a rare and exceptional case in which the interests of justice required admission. The concern for finality in litigation did not outweigh the evidence’s decisive character and the Secretary of State’s contribution to the confusion.
5. The appellant’s representatives’ failure to obtain the evidence earlier did not prevent the court from addressing the Secretary of State’s own error. The approach in E and R v SSHD [2004] EWCA Civ 49 was not determinative because the established mistake was attributable to the Secretary of State.
6. For the purposes of Rules 62 and 60, the relevant question was ultimately whether evidence of enrolment could be provided when the appellant came before the tribunal, rather than only whether it accompanied the original application. The matter was to return to the Secretary of State for a fresh decision, taking account of the appellant’s current circumstances and any renewed ability to satisfy the student requirements.

• Court of Appeal (Civil Division): The appeal from Senior Immigration Judge Gill’s decision was allowed. Permission to appeal was granted, fresh evidence was admitted, and the matter was to return to the Secretary of State for a fresh decision.
• Asylum and Immigration Tribunal: Senior Immigration Judge Gill’s decision of 10 September 2008 reversed Immigration Judge McDade’s decision and left the Secretary of State’s refusal standing.
• Asylum and Immigration Tribunal: Immigration Judge McDade had allowed the appeal and directed reconsideration by the Secretary of State, but had proceeded on the mistaken assumption concerning Regal.