Kabir v The Secretary of State for the Home Department

On an appeal to the Upper Tribunal, admission of evidence not placed before the First-tier Tribunal remains discretionary. The Upper Tribunal may consider non-compliance with the prescribed notice procedure and whether the evidence could have been obtained with reasonable diligence. The Ladd v Marshall principles are the starting point, but departure is possible in exceptional circumstances where the interests of justice require.

Refusing an adjournment is not an error of law where the First-tier Tribunal has a wide discretion, has already adjourned once, and the party had not used the available period to obtain evidence. Fresh material that raises further factual questions, rather than conclusively correcting a clear misapprehension, need not be admitted for the first time on appeal. If alleged deception was not found by the tribunals, any future reliance on it must be assessed fairly and afresh.

The appellant, a Bangladeshi national, challenged refusal of his application for further leave to remain as a Tier 1 (Entrepreneur) Migrant under paragraph 322(1A) of the Immigration Rules. The refusal relied on allegedly false banking documents and alleged deception.

The First-tier Tribunal dismissed the appeal on 3 November 2016 after refusing an adjournment to obtain evidence responding to a document verification report. The Upper Tribunal dismissed the appeal on 12 July 2017 and refused to admit fresh evidence. The Court of Appeal granted permission on the fresh-evidence ground. The central issues were whether the Upper Tribunal was entitled to reject the evidence for procedural non-compliance and lack of reasonable diligence, and whether its admission would have shown that the refusal of an adjournment was an error of law.

McCombe LJ gave the leading judgment. Haddon-Cave LJ and Underhill LJ agreed. The appeal was unanimously dismissed.

1. Adjournment. The First-tier Tribunal had a wide discretion to grant or refuse an adjournment. Its refusal was within that discretion because there had already been an adjournment and the appellant’s solicitors had not used the available period to obtain further evidence. There was no error of law in that decision.
2. Fresh evidence. Under Rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008, a party seeking to adduce evidence not before the First-tier Tribunal must notify the Upper Tribunal and the other party, identify the evidence, and explain why it was not previously submitted. The appellant had not issued the required application notice. The Upper Tribunal was entitled to take that failure into account. Rules 2 and 7 did not require it to waive the procedural requirements.
3. The principles in Ladd v Marshall [1954] 1 WLR 1489 remained the starting point. As explained in E and R v Secretary of State [2004] EWCA Civ 49, departure may be justified in exceptional circumstances where the interests of justice require it. This was not such a case. The fresh evidence did not inevitably resolve the factual issue and would have generated further questions requiring verification. Nor was there a clear misapprehension of an established and relevant fact.
4. The court distinguished ML (Nigeria) v Secretary of State [2013] EWCA Civ 844, which involved a series of egregious errors. The present case did not demonstrate a comparable error of law.
5. Neither tribunal had found that the appellant practised deception. If the Respondent relied on alleged deception in relation to a future application for entry clearance, the appellant could contest it and the evidence would have to be assessed fairly and afresh.

Appeal dismissed.

• Court of Appeal (Civil Division): dismissed the appeal on 9 July 2019.
• Upper Tribunal (Immigration and Asylum Chamber): on 12 July 2017, dismissed the appellant’s appeal from the First-tier Tribunal and refused to admit the fresh evidence.
• First-tier Tribunal (Immigration and Asylum Chamber): on 3 November 2016, dismissed the appeal from the refusal of further leave to remain.
• Secretary of State for the Home Department: on 5 June 2015, refused the application under the Immigration Rules.