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

The Court of Appeal dismissed the Home Secretary's appeal and upheld the High Court's quashing of the Secretary of State's decision not to recognise the claimant as a refugee. Key legal principles applied were the finality of unappealed tribunal decisions and the requirement, by analogy to Ladd v Marshall, that fresh material relied on to reopen such a decision must be relevant, credible and not previously available with due diligence.

The court held that Article 1F(c) (exclusion) and Article 33(2) (danger to the security of the country) are distinct: Article 1F looks backwards at past conduct while Article 33(2) looks forward to present or future danger. Where a tribunal has determined a refugee issue, the Home Secretary may only reopen that determination on the basis of sufficiently cogent fresh material meeting the Ladd v Marshall criteria; mere repetition or further examples of matters already before the tribunal will not suffice.

The Judge's secondary finding that the restrictive conditions attached to the claimant's limited leave were unlawful was not challenged on appeal and therefore stood.

Background and parties. The claimant (Yasser Al-Siri) is an Egyptian national who had long opposed the Egyptian regime and had been the subject of allegations of involvement in terrorism. The First-tier Tribunal found in April 2015 that he was not excluded from the Refugee Convention under Article 1F(c) and therefore was a refugee. The Home Secretary exhausted appellate routes and, in July 2018, issued a fresh decision refusing to recognise refugee status for the claimant on the basis that Article 33(2) applied; restricted leave with reporting and residence/employment conditions was granted instead.

Nature of the application. The claimant sought judicial review of the Decision of 11 July 2018. He sought quashing of the Decision that refused refugee status and argued that the Home Secretary was bound by the FTT determination unless there were genuinely fresh matters satisfying the principles applied in Ladd v Marshall.

Procedural history to this court. The FTT decision was made in 2015; it was subsequently considered on appeal and in other courts (including the Upper Tribunal and the Supreme Court in the claimant's earlier litigation). The High Court (Richard Clayton QC) quashed the Decision on 10 October 2019. The Home Secretary appealed to the Court of Appeal and was refused permission to appeal earlier related decisions; permission on the present appeal was given by Dingemans LJ.

Issues for determination. The Court framed the issues as: (i) whether the Home Secretary is obliged to raise any case under Article 33(2) at the same time as resisting exclusion under Article 1F(c); (ii) what standard applies to fresh material relied on to reopen a tribunal determination (whether the Ladd v Marshall test applies or a lesser rationality test); and (iii) whether the claimant had an alternative remedy by way of appeal to the First-tier Tribunal.

Court's reasoning and holding. The court held that long‑established public law principles of finality and the public law analogue of issue estoppel apply: an unappealed tribunal decision is binding on the parties unless there is either a proper appeal or genuinely cogent fresh material. The Ladd v Marshall criteria (cannot with reasonable diligence have been obtained for use at the earlier hearing; would probably have important influence on the result; apparently credible) apply by analogy when the Home Secretary seeks to reopen a tribunal determination. TB (Jamaica) and authorities such as Boafo and Saribal were applied to support that approach. The court found that the matters relied upon by the Home Secretary were largely matters already known or of the same character as those before the FTT and did not satisfy the Ladd v Marshall test. Accordingly the Judge was correct to quash the Decision. The court also rejected the submission that the claimant had an adequate alternative remedy by way of an FTT appeal, emphasising that the statutory appeal regime did not permit an effective challenge to the lawfulness of the Secretary of State's refusal to give effect to an earlier tribunal decision.

Subsidiary point. The High Court’s view that the reporting and movement conditions attached to the claimant’s restricted leave were inconsistent with refugee status was not pursued on this appeal and therefore remained undisturbed.

Appeal dismissed. The court held that an unappealed favourable tribunal decision is binding on the Home Secretary unless properly impeached by convincingly fresh material; the Ladd v Marshall principles apply by analogy to fresh material relied on to reopen such determinations. The Home Secretary's fresh decision relied on material that was not sufficiently new or cogent to justify departing from the FTT decision, so the High Court was right to quash the Decision refusing refugee status.

The claimant's asylum appeal proceeded through the Asylum and Immigration Tribunal and Court of Appeal in 2009, to the Supreme Court in 2012, and was reheard before the First-tier Tribunal in May 2014, with the FTT decision promulgated 16 April 2015. The FTT decision was upheld by the Upper Tribunal on 17 August 2016 and permission to appeal to the Court of Appeal was refused on 4 August 2017. Following a fresh administrative decision by the Home Secretary on 11 July 2018 refusing refugee status under Article 33(2), the claimant applied for judicial review. The High Court quashed that Decision on 10 October 2019 (Richard Clayton QC). The Secretary of State appealed to this Court, resulting in the present decision ([2021] EWCA Civ 113).