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

In an asylum appeal involving disputed age, a tribunal is not bound by a High Court age finding made under a different statutory regime. It must determine age for itself under the applicable standard of proof. It may nevertheless consider the High Court judgment as evidence and attach considerable weight to its reasoning, provided it does not treat the judgment as binding or abdicate its own assessment. A previous tribunal age finding need not be preserved where the decision-maker failed to address serious criticisms of expert methodology already available. Procedural fairness depends on the issues identified for determination; a formal response or oral evidence is not necessarily required.

The appellant, an Afghan national, claimed asylum after entering the United Kingdom. Different assessments and tribunal findings treated him at different times as either a minor or an adult.

Immigration Judge Cheales initially found him to be a minor. Immigration Judge Ford treated that finding as her starting point but dismissed the substantive asylum appeal. In related judicial review proceedings, Beatson J dismissed the appellant’s challenge to Birmingham City Council’s adult assessment and found him to be an adult: [2011] EWHC 3488 (Admin).

The Upper Tribunal set aside Immigration Judge Ford’s determination, declined to preserve the age finding, attached considerable weight to Beatson J’s judgment, found the appellant to be an adult and dismissed the appeal. The central issue before the Court of Appeal was whether the Upper Tribunal could rely on the High Court judgment without treating it as binding, and whether the procedure was unfair.

Davis LJ gave the leading judgment, with Floyd LJ and Maurice Kay LJ agreeing. The appeal was dismissed.

1. Effect of the High Court judgment. Beatson J’s judgment, made in civil proceedings concerning the potential application of section 20 of the Children Act 1989, was not a decision in rem and did not bind the Upper Tribunal in the asylum appeal. The two statutory contexts were different, and the asylum proceedings involved a lower standard of proof. The Upper Tribunal therefore retained its own judicial responsibility for determining age.
2. Permissible reliance and weight. The absence of binding effect did not make the judgment irrelevant. It set out the evidence in detail, including oral evidence not previously available. The Upper Tribunal was entitled to consider it as material evidence and to attach considerable weight to it, provided it assessed the evidence for itself and applied the applicable standard. That approach was consistent with R(PM) v Hertfordshire County Council [2010] EWHC 2056 (Admin), Crehan v Inntrepeneur Pub Co [2007] 1 AC 333; [2006] UKHL 38, and the principles concerning new material identified in DK (Serbia) v Secretary of State for the Home Department [2008] 1 WLR 1246; [2006] EWCA Civ 1747.
3. Error of law and preservation. The Upper Tribunal was entitled to find a material error of law where Immigration Judge Ford relied on an addendum report from Dr Birch without addressing serious criticisms of Dr Birch’s methodology that were already available. It was consequently entitled not to preserve the earlier finding that the appellant was a minor. The criticisms had been discussed in R (A & WK) v Secretary of State for the Home Department [2009] EWHC 939 (Admin), but there was no evidence that Immigration Judge Ford had taken them into account.
4. Procedural fairness. Since the age issue and the question of preservation had been expressly identified for determination, the Upper Tribunal was entitled not to require formal service of a Rule 24 response. The appellant had not been tendered to give oral evidence and was expected to be prepared to meet the age issue. No procedural unfairness was established.
5. The alleged binding concession by the Secretary of State was rightly rejected because the correspondence qualified her position and there was no detrimental reliance. A further challenge based on R (Evans) v Attorney General [2014] EWCA Civ 254 was raised too late. The Article 47 argument afforded no assistance on the facts.

1. Court of Appeal (Civil Division): The appeal from the Upper Tribunal was dismissed. The Upper Tribunal had been entitled to reconsider age, rely on the High Court judgment as evidence and dismiss the appeal.
2. Upper Tribunal Immigration and Asylum Chamber: Upper Tribunal Judge Hanson set aside Immigration Judge Ford’s determination for material errors of law, declined to preserve the age finding, found the appellant to be an adult and dismissed the appeal.
3. First-tier Tribunal: Immigration Judge Ford dismissed the substantive asylum appeal while treating Immigration Judge Cheales’s earlier finding that the appellant was a minor as her starting point.
4. Administrative Court: Beatson J dismissed the related judicial review claim concerning Birmingham City Council’s age assessment: [2011] EWHC 3488 (Admin).
5. Related Court of Appeal proceedings: Permission to appeal from Beatson J’s judgment was refused in joined proceedings reported as R (Kadri) v Birmingham City Council [2012] EWCA Civ 1432.