The Secretary of State for the Home Department v Shamen Chomanga

An unappealed immigration judge’s findings bind both parties. The Secretary of State cannot make a further adverse decision on the same issue by relying on evidence which was available, but not produced, in the earlier appeal. The proper course is to challenge the earlier determination through the available procedure.

A fresh decision may be possible where genuinely fresh evidence was unavailable at the hearing, the law or circumstances have changed, new events have occurred, or subsequent evidence of fraud arises. An earlier judge’s obiter indication that a further decision might be made cannot enlarge the Secretary of State’s legal powers.

The Secretary of State appealed against Immigration Judge Callender Smith’s decision allowing Ms Chomanga’s appeal against the cancellation of her leave to remain, on immigration and article 8 grounds.

An earlier appeal before Immigration Judge Ross had also succeeded. The Secretary of State had alleged that documents supporting Ms Chomanga’s United Kingdom ancestry claim were false, but had not produced supporting evidence or attended that hearing. The Secretary of State later made a further cancellation decision based on the same Central Registry material.

The central issue was whether the Secretary of State could revisit the allegation of false documents after the earlier, unchallenged determination.

1. Appeal dismissed. The procedural failure which meant that the respondent’s documents were not linked to the file before Immigration Judge Callender Smith was immaterial. Even if they had been before him, the immigration appeal would inevitably have succeeded.
2. The Upper Tribunal followed Secretary of State for the Home Department v TB (Jamaica) [2008] EWCA 977. The unappealed determination of Immigration Judge Ross bound the parties. It resolved, against the Secretary of State, the allegation that Ms Chomanga had obtained leave by submitting false documents.
3. The Secretary of State had had the opportunity to produce the Central Registry evidence at the earlier hearing. Making a fresh adverse decision on precisely that evidence was, in substance, an attempt to circumvent the earlier determination. It was therefore unlawful.
4. None of the recognised qualifications to finality applied. There was no relevant fresh evidence unavailable at the earlier hearing, change in law, change in circumstances, or new event. Nor was this a case of subsequent evidence of fraud. The earlier judge’s suggestion that the Secretary of State could curtail leave again was obiter and could not authorise a course unavailable in law.
5. As the falsity issue had already been resolved, the article 8 assessment did not omit a relevant consideration. The decision allowing the appeal on immigration and human rights grounds stood.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the Secretary of State’s appeal and upheld the decision allowing the appeal on immigration and human rights grounds.
• First-tier Tribunal: Immigration Judge Callender Smith allowed Ms Chomanga’s appeal against cancellation of her leave to remain.
• Earlier immigration appeal: Immigration Judge Ross had allowed an appeal against an earlier curtailment decision after the Secretary of State failed to prove that the ancestry documents were false.