ML (Nigeria) v Secretary of State for the Home Department

Material factual errors in a tribunal determination constitute errors of law where they affect the conclusion. Any doubt about materiality should be resolved in favour of the person alleging the error.

Every asylum claimant is entitled to a fair hearing, however weak the claim may appear. The tribunal must conscientiously consider the arguments and evidence both for and against the claimant. Its determination must demonstrate the anxious scrutiny required by the special human context.

Where egregious errors undermine confidence that this process occurred, the decision cannot ordinarily be preserved on the ground that the same outcome was inevitable. Such a case would be extremely rare.

The appellant, a Nigerian citizen with a previous false asylum claim and an adverse immigration history, sought protection on the ground that his homosexuality exposed him to persecution in Nigeria. The First-tier Tribunal rejected his evidence and dismissed his appeal.

Its determination contained serious errors. It referred repeatedly to written skeleton arguments and interviews which did not exist, attributed submissions to the wrong counsel, and inserted irrelevant material concerning Sri Lanka. The Upper Tribunal recognised these as careless factual errors but held that they disclosed no material error of law because the adverse credibility findings were otherwise sustainable.

The appellant appealed to the Court of Appeal. The central issue was whether the factual and procedural errors amounted to errors of law and deprived him of a fair hearing, notwithstanding the apparent weakness of his case.

1. Appeal allowed. The Upper Tribunal misdirected itself in treating the First-tier Tribunal’s serious factual errors as incapable of amounting to errors of law. A material factual error is an error of law when the fact is material to the conclusion. Where materiality is doubtful, the doubt is resolved in favour of the person complaining of the error.

2. Every claimant is entitled to a fair hearing, however poor the apparent merits of the claim. The fact-finder must listen to and conscientiously consider both the arguments supporting the claimant’s credibility and those weighing against it. This reflected the anxious scrutiny described in R(YH) v Secretary of State for the Home Department [2010] EWCA Civ 116, which requires the reasoning to show that every factor potentially favouring the applicant was properly considered.

3. The fairness of a hearing may be assessed from the determination itself. The reviewing court should examine the matters recorded, the cogency of the reasons, and the process by which the adverse conclusion was reached. Taking account of non-existent skeleton arguments and interviews was itself an error of law. Together with the irrelevant reference to Sri Lanka and other mistakes, it prevented confidence that the appellant’s arguments had been conscientiously considered.

4. The errors were therefore not merely careless inaccuracies. They rendered the procedure so flawed that the appellant had received no proper or fair hearing. The Upper Tribunal should have set aside the First-tier Tribunal’s decision and reheard the case or remitted it for a further hearing.

5. The decision could not be preserved on the basis that the appellant would inevitably fail. Although his case was difficult, that could not displace his right to a fair opportunity to present it. Sir Stanley Burnton added that an inevitable outcome following such egregious errors would be extremely rare, and this was not such a case. Maurice Kay LJ agreed with both judgments. The matter was remitted to the Upper Tribunal for redetermination by way of rehearing.

1. Court of Appeal (Civil Division): The appeal was allowed. The Upper Tribunal’s decision was quashed, and the matter was remitted to the Upper Tribunal for redetermination by way of rehearing: [2013] EWCA Civ 844.

2. Upper Tribunal (Immigration and Asylum Chamber): The tribunal recognised careless factual errors in the First-tier Tribunal’s determination but held that there had been no error on a point of law. It declined to set the decision aside.

3. First-tier Tribunal: The tribunal rejected the appellant’s claimed homosexuality and dismissed his protection and human rights appeal on adverse credibility grounds.