The Secretary of State for the Home Department v AM

A tribunal must decide an immigration appeal on the evidence presented by the parties, supplemented where appropriate by judicial notice. It must not conduct independent research to assemble evidence.

Material known to the judge but outside either party’s case should be disclosed at the earliest opportunity where it could bear on an issue. Fairness may also require an unventilated concern about a party’s evidence to be raised. A judge may nevertheless form provisional views after reading the papers, provided an open mind is maintained. Footnotes and linked sources forming part of a Secretary of State’s decision may properly be accessed by the tribunal.

The Secretary of State refused AM’s asylum claim. The First-tier Tribunal allowed his appeal on asylum and article 3 grounds.

The Secretary of State appealed, alleging procedural unfairness. She contended that the judge had undertaken undisclosed research, formed findings before hearing oral evidence, and failed to disclose concerns about background material relating to Sudanese competition legislation.

The central issue was whether the First-tier Tribunal’s handling of the material and its preparation for the hearing had denied either party a fair hearing.

1. Appeal dismissed. The Upper Tribunal affirmed the First-tier Tribunal’s decision allowing AM’s appeal.

2. The First-tier Tribunal had not undertaken impermissible independent judicial research. It had accessed source material identified in footnotes to the Secretary of State’s refusal letter. Those footnotes, links and underlying material formed an integral part of the decision on which the Secretary of State relied. Accessing them was legitimate.

3. A judge must not assemble evidence through independent research. The case must be decided on the parties’ evidence, subject where appropriate to judicial notice. If a judge knows of potentially material evidence outside either party’s case, the judge must ordinarily bring it to the parties’ attention at the earliest stage, including after the hearing where the context requires it.

4. The complaint that the judge had predetermined core issues had no evidential basis. A judge who reads the papers conscientiously before a hearing may form provisional views. That causes no unfairness if the views remain provisional and the judge maintains an open mind.

5. The alleged non-disclosure concerning Sudanese legislation was misconceived. The First-tier Tribunal had found the legislation irrelevant because AM did not claim that the state had acted against him under it. That finding was unassailable and, if anything, favoured the Secretary of State.

6. Fairness may require a tribunal to raise concerns about evidence that the parties have not addressed, so that each has a reasonable opportunity to put its case. Secretary for the Home Department v Maheshwaran [2002] EWCA Civ 173 did not provide an exhaustive prescription of procedural fairness in this public-law setting.

• Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State’s appeal was dismissed and the First-tier Tribunal’s decision was affirmed.
• First-tier Tribunal: AM’s appeal against refusal of asylum was allowed on asylum and article 3 grounds. No citation was stated in the judgment.