Vylegzhanin v Secretary of State for the Home Department

A tribunal does not impermissibly conduct its own research merely by consulting a primary legal source to test an expert’s account of that source, particularly where the expert has not supplied the text. The tribunal may read the source to understand whether the expert has accurately represented it. An alleged procedural error will not ordinarily justify permission to appeal where it concerns only a small part of a lengthy decision and the remaining reasoning is otherwise unassailable. Tribunal members may discuss the material together and reach a joint conclusion.

The appellant, a Russian gay man, overstayed his student visa and was later convicted of dishonesty offences. The Secretary of State made a deportation order and rejected his asylum claim. The First-tier Tribunal rejected his appeal, finding his account of persecution not credible and concluding that there was a sufficiency of protection for gay men in Russia.

The Upper Tribunal dismissed his appeal. The issue before the Court of Appeal was whether the First-tier Tribunal had acted procedurally unfairly by reading the Russian Criminal Code when assessing an expert report about Russian law.

The application for permission to appeal was refused.

1. The First-tier Tribunal’s conclusion that there was a sufficiency of protection for openly gay men in Russia was otherwise unassailable. The complaint concerned only a small part of a lengthy and carefully reasoned decision.
2. The tribunal judge’s consultation of the Russian Criminal Code did not amount to impermissible independent research. The judge had used the source material to check an expert’s apparently surprising assertion about the Code. The expert had not supplied the Code and the report had already been found unbalanced and unreliable in that respect.
3. The principle discussed in Duchess Di Sora v Phillips (1863) 10 HL Cas 624, at p 640, concerned a judge searching for the sources from which witnesses had drawn their evidence and producing independently the fact requiring proof. Consulting the Code in the present circumstances fell outside that principle and did not vitiate the tribunal’s decision.
4. The tribunal members’ subsequent reasoning showed that they had discussed the issue together and reached a joint conclusion, even if the lay member might not herself have read the Code.
5. The Court did not determine whether procedural unfairness could have been immaterial to the outcome, because it found no procedural impropriety. It nevertheless indicated that the submission that any procedural impropriety necessarily prevents assessment of its effect on the decision was questionable.

• Court of Appeal (Civil Division): refused permission to appeal.
• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appeal from the First-tier Tribunal.
• First-tier Tribunal: rejected the appeal against the refusal to revoke the deportation order and the rejection of the asylum claim.