Al-Siri, R (On the Application Of) v Secretary of State for the Home Department

An unappealed tribunal decision recognising refugee status is final and binding. The Home Secretary must present the entire case against recognition, including any case under Article 33(2) of the Refugee Convention, during the original appeal. The decision may be reopened for relevant fresh evidence, changed circumstances or new events, but fresh material must satisfy principles analogous to the Ladd v Marshall test.

The evidence must have been unobtainable with reasonable diligence, be capable of materially influencing the result, and be apparently credible. Further examples of conduct already considered will not suffice. Judicial review is available where the challenge concerns unlawful disregard of the tribunal’s binding decision and the statutory appeal permits only a merits challenge based on Convention obligations.

The First-tier Tribunal determined that the respondent was not excluded from the Refugee Convention under Article 1F(c) and was a refugee. That decision survived the Home Secretary’s appeals. The Home Secretary subsequently relied on Article 33(2) and paragraph 334(iii) of the Immigration Rules to refuse refugee status, while granting restricted leave because removal would breach article 3 of the European Convention on Human Rights.

The Administrative Court quashed that decision. It held that the new material was insufficient to justify departure from the First-tier Tribunal’s binding determination and that judicial review was an appropriate remedy. The Home Secretary appealed, principally disputing the requirements of finality, the application of the Ladd v Marshall principles and the availability of judicial review despite a statutory appeal.

1. Appeal dismissed. The Home Secretary was bound by the First-tier Tribunal’s unappealed determination that the respondent was a refugee. Finality applies in public law as well as private law. A party must advance its entire case before the tribunal and cannot later circumvent the resulting determination by making an inconsistent administrative decision.

2. The reasoning in R (TB (Jamaica)) v Home Secretary [2008] EWCA Civ 977 was not confined to cases in which Article 1F(c) and Article 33(2) depended on the same conviction. It established a broader rule requiring the Home Secretary to raise any available Convention ground during the original proceedings. The up-to-date assessment required in an asylum appeal does not authorise subsequent disregard of a final decision.

3. A final tribunal determination may be reopened where relevant fresh evidence, changed circumstances or new events provide a proper basis. When reliance is placed on new material, principles analogous to the Ladd v Marshall test apply. The evidence must have been unobtainable with reasonable diligence, be likely to exercise an important influence on the result, and be apparently credible. Rationality alone would not adequately protect finality or the statutory appeal system. Cogency was not a separate additional requirement.

4. The later social-media material consisted only of further examples of extremist publication already addressed by extensive evidence before the tribunal. It could not have materially influenced an Article 33(2) case and therefore failed the second limb of the test. Material available before the tribunal’s further hearing also failed the reasonable-diligence limb. The new information was merely more of the same and did not even provide a rational basis for reopening the decision.

5. The amended appeal regime under sections 82, 84 and 86 of the Nationality, Immigration and Asylum Act 2002 did not enable the First-tier Tribunal to determine a freestanding challenge that the Home Secretary’s decision unlawfully disregarded an earlier tribunal determination. Nor was a merits appeal a satisfactory alternative remedy. Judicial review was the appropriate means of enforcing the final determination and upholding the rule of law.

6. The grounds concerning the restricted-leave conditions did not arise because the principal grounds of appeal failed. Phillips LJ gave the judgment, with which Sir Stephen Irwin and Underhill LJ agreed.

• Court of Appeal (Civil Division): The Home Secretary’s appeal was dismissed by [2021] EWCA Civ 113. The grounds concerning restricted-leave conditions did not arise.
• High Court, Administrative Court: Richard Clayton QC, sitting as a deputy judge, quashed the Home Secretary’s decision because insufficient fresh material justified departure from the binding tribunal determination. He also held that judicial review was appropriate and found the restricted-leave conditions unlawful.
• Upper Tribunal: On 17 August 2016 it upheld the First-tier Tribunal’s decision following the Home Secretary’s appeal. The Court of Appeal refused permission for a further appeal on 4 August 2017.
• First-tier Tribunal: On 16 April 2015 it allowed the asylum appeal, finding that Article 1F(c) of the Refugee Convention did not exclude the respondent and that he was a refugee.