MM v The Secretary of State for the Home Department

A material error of law may arise from procedural unfairness even where the First-tier Tribunal acted reasonably and was not at fault. The question is whether an irregularity, including an established mistake about the availability or content of material evidence, created unfairness with a real possibility of affecting the result.

In asylum appeals, the common-law right to a fair hearing may require a flexible approach to the admission and effect of evidence overlooked through a representative’s failure. Where the unfairness deprived the appellant of a proper first-instance hearing, the usual course is to set aside the decision and remit the appeal for a fresh hearing before a differently constituted tribunal.

The appellant, a Sudanese woman claiming to be a Coptic Christian, appealed against the First-tier Tribunal’s dismissal of her asylum, humanitarian-protection and article 3 claims. Her case depended substantially on her credibility, including alleged errors in the interpretation and recording of her asylum interview.

Before the First-tier hearing, her solicitors had sent a letter identifying 21 purported interview-interpretation errors. The letter was neither before the First-tier Tribunal nor included in the appellant’s bundle. The judge treated the absence of such a letter as undermining the appellant’s account and credibility.

The central issue was whether the omission of that material evidence caused procedural unfairness amounting to a material error of law, although the First-tier Tribunal itself was not at fault.

1. Appeal allowed. The First-tier Tribunal’s decision involved a material error of law. It was set aside and remitted for a fresh hearing before a differently constituted First-tier Tribunal, with no findings preserved.

2. Procedural unfairness is concerned with the process by which the decision was reached, not a re-evaluation of its merits. A procedural defect is material where there is a real, rather than merely minimal, possibility that the outcome could have differed. The appellate tribunal should be cautious before deciding that the result would inevitably have been the same: R v Chief Constable of Thames Valley Police, ex parte Cotton [1990] IRLR 344.

3. The principles in E & R v Secretary of State for the Home Department [2004] EWCA Civ 49 apply to appeals from the First-tier Tribunal. A mistake about an established and relevant fact, including the availability of evidence, may produce unfairness amounting to an error of law in asylum appeals. Fairness, not reasonableness or fault by the tribunal, is the governing criterion.

4. The solicitor’s letter was important evidence. The First-tier judge mistakenly believed that the appellant had not instructed her representatives to write such a letter and that no letter existed. That mistake materially supported a finding that the appellant had been dishonest about an inconsistency in her interview record. It therefore formed an important part of the adverse credibility assessment and caused palpable unfairness.

5. Although the letter had been available to the appellant’s solicitors, asylum and human-rights appeals permit flexibility where necessary to vindicate the common-law right to a fair hearing. The ordinary new-evidence requirements did not preclude relief in these circumstances.

6. Under section 12 of the Tribunals, Courts and Enforcement Act 2007, a case set aside for deprivation of a fair first-instance hearing should, as a strong general rule, be remitted for a wholly fresh hearing. This preserves the litigant’s constitutional right to a fair hearing before any further statutory appeal is engaged.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeal on a point of law, set aside the First-tier Tribunal’s decision, and remitted the matter for a fresh hearing before a different constitution.

• First-tier Tribunal: Dismissed the appellant’s appeal against the refusal of asylum, humanitarian protection and protection under article 3.