Secretary of State for the Home Department v Paul Mubiana Mubu

Res judicata does not apply to immigration appeals. A prior unappealed immigration determination is nevertheless the starting point when the same factual issue arises between the same parties in a later appeal.

The Devaseelan guidelines apply whether the earlier finding favoured the appellant or the Secretary of State. The later tribunal should ordinarily treat the issue as settled where the later case relies on materially the same facts and evidence. It may depart only for a good reason, which will be rare where the relevant evidence could reasonably have been adduced at the first hearing.

Accordingly, a party cannot circumvent an earlier determination by making a fresh immigration decision founded on evidence it failed, without good reason, to place before the first tribunal.

The respondents were Zimbabwean nationals whose leave had originally been granted on the first respondent's asserted United Kingdom ancestry. In an earlier appeal, Judge Tipping accepted that he was the grandson of a British citizen and allowed the family’s appeals. The Secretary of State implemented that determination by granting further leave.

When the first respondent later applied for indefinite leave to remain, the Secretary of State refused the applications, again disputing the ancestry evidence and relying on further registry correspondence and material concerning the hospital stated on a birth certificate. Judge Andonian allowed the resulting appeals, treating Judge Tipping’s finding as determinative.

The Secretary of State appealed. The central issue was whether the earlier factual finding was barred from re-litigation by res judicata, or instead fell to be addressed under the Devaseelan guidelines.

1. The Secretary of State’s appeal was allowed to the extent that the First-tier Tribunal’s decision was set aside for legal error. Judge Andonian had treated the earlier finding as determinative without considering the applicable Devaseelan guidance. The Upper Tribunal remade the decision and allowed each respondent’s immigration appeal.

2. The principles of res judicata, including cause of action estoppel, do not apply in immigration appeals. Although the principle can apply in public law where the statutory scheme does not exclude it, immigration appellate jurisdiction is an exception. In any event, the later appeals challenged different decisions from those challenged before Judge Tipping. The earlier successful appeals had merged in, and been extinguished by, the earlier determinations; they did not create a cause of action against the Secretary of State in the later appeals.

3. The correct approach was that in Devaseelan v Secretary of State for the Home Department, [2002] UKIAT 00702. The first determination is always the starting point. Its findings are not formally binding, but should normally settle the relevant issues between the parties unless there is a good reason to depart from them. The approach applies equally to findings favourable to the Secretary of State and to findings favourable to an appellant.

4. The Secretary of State had twice obtained adjournments in the earlier proceedings to investigate the same birth certificates. The key registry letter pre-dated Judge Tipping’s hearing, and the other new material could also have been obtained and produced then with reasonable diligence. The later evidence added no material basis for reopening the issue. Judge Tipping’s finding as to the relationship with the United Kingdom-born grandfather therefore remained the proper factual starting point and settled that issue.

5. The Secretary of State raised no other objection under the Immigration Rules. The refusals were accordingly not in accordance with the Rules, and the respondents’ appeals were allowed.

• Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State’s appeal from Judge Andonian’s First-tier Tribunal determination was allowed for error of law. The decision was set aside and remade by allowing the respondents’ immigration appeals.

• First-tier Tribunal: Judge Andonian allowed the respondents’ appeals in a combined determination promulgated on 21 January 2011, treating Judge Tipping’s earlier ancestry finding as determinative.

• Asylum and Immigration Tribunal: Judge Tipping allowed the earlier appeals in a determination promulgated on 1 July 2008, referenced IA/01712/2008, finding that the first respondent satisfied the ancestry requirements of the Immigration Rules.