Zafarani Rajan Kalidas v The Secretary of State for the Hoe Department

Where parties have agreed facts or made material factual concessions at a Case Management Review, the substantive tribunal should be clearly informed of their scope and of the issues remaining for decision. A judge will ordinarily proceed on factual concessions. If exceptional developments justify revisiting them, the judge must alert the representatives promptly and give them a fair opportunity to question, adduce evidence and make submissions on the point.

Failure to preserve or clarify an agreed factual basis may render the hearing unfair, particularly where the tribunal instead determines credibility issues which the parties reasonably understood were no longer live. Case-management documents, evidence and submissions should be directed to the remaining live issues.

Zafarani Rajan Kalidas, a Tanzanian national, appealed against the refusal of her asylum claim. At a Case Management Review, the respondent accepted that her father had threatened her. The remaining issues were sufficiency of protection in Tanzania and internal relocation.

At the substantive First-tier Tribunal hearing, the agreement was not clearly reduced to writing or drawn to the hearing judge’s attention. The judge made extensive adverse credibility findings and treated protection and relocation as hypothetical alternatives. Permission to appeal was granted on the ground that the First-tier Tribunal had failed to take account of the agreement reached at the Case Management Review.

The central issue was whether the handling of the factual concession and the consequent credibility assessment had produced an unfair hearing.

1. Appeal allowed. The First-tier Tribunal determination was set aside because the cumulative procedural failures produced unfairness. The appeal was remitted for a fresh hearing.
2. The Case Management Review note recorded that the respondent accepted the father’s threat and that only sufficiency of protection and internal relocation remained. However, neither party produced a clear written record of the agreement, nor was its scope adequately drawn to the substantive hearing judge’s attention. That created uncertainty over where the concession ended and what remained disputed.
3. A tribunal judge is not conclusively bound by a factual agreement or concession. Ordinarily, however, judges do not look behind factual concessions except in exceptional circumstances. Where the concession is partial or unclear, or the evidence develops so that its extent or correctness may need reconsideration, the judge must immediately alert the representatives. They must then have a fair opportunity to ask questions, lead evidence and make submissions; an adjournment may be required.
4. The hearing judge’s warning concerning a purported letter from the appellant’s father did not sufficiently notify the representatives that the wider factual agreement and credibility were being reopened. The extensive credibility findings therefore addressed matters the parties reasonably understood had been accepted, while the genuinely live protection and relocation issues received only brief treatment. That unfairness was not cured by the alternative findings.
5. Under Tribunals, Courts and Enforcement Act 2007, section 12(2)(b)(i), the case was remitted to a differently constituted First-tier Tribunal. The fresh decision was to address sufficiency of protection and internal relocation, taking the parties’ agreed joint minute as its starting point.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeal, set aside the First-tier Tribunal determination and remitted the case for a fresh hearing.
• First-tier Tribunal: By a determination dated 14 February 2012, dismissed the asylum appeal after making adverse credibility findings and addressing sufficiency of protection and internal relocation in the alternative.