UB (Sri Lanka) v Secretary of State for the Home Department

In immigration and asylum appeals, the Secretary of State must place relevant Home Office policy and guidance before the tribunal. Publication online does not meet that duty. A decision concerning risk on return must not depend on the diligence of the appellant’s representatives.

The duty covers material relevant to the issues before factual findings are made. It does not require disclosure of peripheral or irrelevant material. An appellate court may admit unserved guidance and allow an appeal where, assessed retrospectively against the tribunal’s findings, the guidance might realistically have affected the outcome. It is enough that this possibility cannot be excluded.

The appellant, a Sri Lankan national, sought asylum and humanitarian protection on the basis of past LTTE involvement, participation in pro-LTTE demonstrations in the United Kingdom, and claimed membership of the Transnational Government of Tamil Eelam (TGTE).

The First-tier Tribunal dismissed his appeal. It accepted some past LTTE involvement but found his United Kingdom activities low-level, rejected material parts of his account of detention and torture, and made no express finding on TGTE membership. The Upper Tribunal held that the First-tier Tribunal had made no error of law.

A Home Office policy document entitled Tamil Separatism, published before both tribunal hearings, was not placed before either tribunal. Its annexed letters addressed the treatment of members of newly proscribed Tamil diaspora organisations, including the TGTE. The central issue was whether that omission was procedurally unfair and whether the material might have affected the result.

1. Appeal allowed unanimously. Lord Justice Irwin, with whom Lord Justice David Richards and the President of the Family Division agreed, admitted the fresh Home Office material and allowed the appeal.

2. The Secretary of State had a clear legal duty to draw relevant Home Office policy and guidance to the attention of both tribunals. The duty was not met by making the material publicly available online. In asylum and immigration cases, a decision on return to a country of feared persecution must not depend upon the diligence of the appellant’s representatives.

3. The duty was limited to material genuinely relevant to the issues in the case. It did not require service of policy or guidance that was peripheral or irrelevant. Here, the appellant had expressly claimed TGTE membership and the Secretary of State had rejected that claim in the decision letter. The guidance and annexed letters, which identified the TGTE as a proscribed organisation and addressed questioning and possible detention of returnees involved with such groups, were therefore clearly relevant and should have been served.

4. The court distinguished prospective relevance from retrospective materiality. The question after the event was whether the undisclosed material might realistically have affected the decision actually reached. That assessment required regard to the absence of any finding on TGTE membership, the need for any membership to be detected on return, the appellant’s low-level activities, and the adverse credibility findings.

5. Those matters made the issue close. Nevertheless, the court could not exclude the possibility that the guidance and letters might have affected the outcome. They were therefore material in the retrospective sense, and the appeal succeeded.

• Court of Appeal (Civil Division) Allowed the appellant’s appeal in [2017] EWCA Civ 85 because relevant Home Office guidance had not been served and might realistically have affected the outcome.
• Upper Tribunal (Immigration and Asylum Chamber) Deputy Upper Tribunal Judge Pickup, by a decision and reasons dated 12 December 2014, rejected the appellant’s challenge and held that the First-tier Tribunal had made no error of law.
• First-tier Tribunal (Immigration and Asylum Chamber) Judge Wyman dismissed the appellant’s asylum and humanitarian-protection appeal.