SH (Afghanistan) v Secretary of State for the Home Department

Whether a tribunal’s procedure was fair is a question of law. The sole test is what fairness demanded, not whether the procedural decision was irrational, perverse or reasonably open to the tribunal.

A party must ordinarily have an opportunity to answer adverse expert material with contrary evidence. A determination reached through an unfair procedure must be set aside unless the appellate tribunal is satisfied that the result would inevitably have been the same. That exception is rare and differs from asking whether the same result was merely reasonably likely.

Fast-track procedural requirements cannot justify refusing a necessary adjournment. The tribunal must remove an appeal from the fast-track process where that is required for its just determination.

The appellant, an Afghan asylum seeker, claimed to be a child. The Secretary of State disputed his age and relied on a local authority assessment and evidence that he had previously sought a student visa using a different identity and an adult date of birth.

The First-tier Tribunal refused an unopposed adjournment sought to obtain an independent age assessment and dismissed the asylum appeal. The Upper Tribunal upheld that refusal as neither irrational, perverse nor unfair. It also considered the subsequently obtained assessment and decided that the First-tier Tribunal was reasonably likely to have reached the same result.

The appellant appealed on the grounds that both tribunals had applied the wrong legal tests. The central questions were whether the refusal of an adjournment was unfair and, if so, whether the procedural error required a rehearing.

1. Appeal dismissed. The First-tier Tribunal and Upper Tribunal had both erred in law, but this was one of the rare cases in which their procedural errors made no difference. Moses LJ delivered the judgment, with which Patten and Ward LJJ agreed.

2. The First-tier Tribunal acted unfairly and unlawfully by refusing an adjournment. The Secretary of State relied upon expert evidence concerning age, while the appellant had arranged to obtain countervailing expert evidence. Fairness required a reasonable opportunity to produce it. The restrictions in rules 28 and 30 of the Asylum and Immigration Tribunal (Fast-Track Procedure) Rules 2005 did not justify refusal, because rule 28(d) contemplated removing a case from the fast-track procedure when it could not otherwise be justly determined.

3. The Upper Tribunal applied the wrong standard when it asked whether the refusal was properly open to the First-tier Tribunal or was Wednesbury unreasonable or perverse. Procedural fairness is a question of law for the court or tribunal. The sole question was what fairness demanded, including whether the appellant should have been permitted to answer adverse material with contrary evidence.

4. The Upper Tribunal also applied the wrong test when it asked whether the First-tier Tribunal was reasonably likely to have reached the same decision. A determination reached through an unfair procedure must be set aside unless the appellate tribunal is satisfied that a rehearing would be pointless because the result would inevitably be the same.

5. Age was a question for the tribunal’s ultimate determination. Age assessment was not an exact science and required consideration of background, family history, culture, appearance and credibility. Although all available expert assessments placed the appellant below 18, their conclusions had to be evaluated with the other evidence.

6. The evidence arising from the earlier passport, student-visa application, related appeal and claimed elder brother was overwhelming. There was no rational explanation for the appellant repeatedly presenting himself as an adult when, on his account, he would have been only 13. Remittal to the First-tier Tribunal would therefore have been pointless.

1. Court of Appeal (Civil Division): By [2011] EWCA Civ 1284, dismissed the appeal. It held that both tribunals had erred in law but that the result would inevitably have been the same, making remittal pointless.

2. Upper Tribunal (Immigration and Asylum Chamber): Senior Immigration Judge King dismissed the further appeal on 26 October 2010. He upheld the refusal of an adjournment and considered that the new age-assessment report was not reasonably likely to have changed the result.

3. First-tier Tribunal (Immigration and Asylum Chamber): Immigration Judge Froom refused an adjournment sought to obtain an independent age assessment and dismissed the asylum appeal on 8 October 2010.