Zakia Sultana v Secretary of State for the Home Department

In successive immigration appeals, the first tribunal decision is the starting point and normally settles an issue where the later case relies on materially the same facts. The Devaseelan approach applies equally when the Secretary of State seeks to revisit the issue. Reconsideration is permitted where there is some very good reason why relevant evidence was not adduced earlier, including because it could not have been obtained with reasonable diligence. These principles reflect fairness and consistency rather than res judicata or issue estoppel. A subsequent refusal based on a departure from them may be challenged on public-law grounds. Where verification evidence was unavailable at the first hearing, reconsideration may be lawful.

The appellant, a Bangladeshi national, challenged a second refusal of leave to remain under the Points Based System in the Immigration Rules. In the first appeal, Judge Randall allowed the appeal on the general grounds of refusal because the Secretary of State had not proved that the bank documents were false. The appellant had relied on letters from the bank which had not then been verified.

The Secretary of State later verified those letters and obtained further evidence concerning later documents. A second refusal followed. Judge White dismissed the appellant’s second appeal, finding that the new evidence justified revisiting the earlier decision. Judge Frances dismissed the appeal to the Upper Tribunal. The central issue was whether the Upper Tribunal erred in law in permitting that reconsideration.

1. Appeal dismissed. The Court of Appeal upheld Judge Frances’s conclusion that Judge White had not erred in law. The finding that the Secretary of State had no opportunity to verify the letters before the first appeal was sufficient to dispose of the challenge.
2. Successive immigration appeals. The principles in Devaseelan v Secretary of State for the Home Department [2002] UKIAT 702, as explained and approved in SSHD v BK (Afghanistan) [2019] 4 WLR 111, apply equally where the Secretary of State is the party seeking to revisit an earlier finding. The first determination is the starting point. A second tribunal should treat an issue as settled where the later case relies on materially the same facts. The guidance remains flexible and enables the tribunal conscientiously to decide the case before it, reflecting fairness and consistency rather than res judicata or issue estoppel. The approach in Djebbar v SSHD [2004] EWCA Civ 804 and AA(Somalia) v SSHD [2007] EWCA Civ 1040 was consistent with that conclusion.
3. Fresh evidence. The force of the guidance is reduced where there is some very good reason for the earlier failure to adduce relevant evidence. The Court considered that this substantially mirrors the fresh-evidence principles in Ladd v Marshall [1954] 1 WLR 1489. The letters could not have been verified before the first hearing with reasonable diligence. Judge White was therefore entitled to consider them and the further evidence of fraud.
4. Public-law challenge. A Secretary of State decision consequent upon an earlier tribunal decision is subject to analogous fresh-evidence principles. If those principles are breached, the decision may be challenged on public-law grounds, either by a second appeal alleging abuse or by judicial review. The appellant had not raised that issue before Judge White and could not criticise his decision on appeal for failing to address it. Even if his formulation had been imperfect, the factual findings meant that application of the correct test would have produced the same result.
5. Fraud. The Court added, obiter, that it was doubtful whether the reasonable-diligence requirement in Ladd v Marshall should apply where an earlier judgment had been procured by fraud. That observation was informed by Takhar v Gracefields Development [2019] UKSC 13 and SSHD v Abbassi [2020] UKUT 27 (IAC).

1. Court of Appeal (Civil Division). On 9 December 2021, dismissed the appellant’s appeal from the Upper Tribunal.
2. Upper Tribunal (Immigration and Asylum Chamber). Judge Frances, in a decision promulgated on 10 August 2020, dismissed the appeal from Judge White’s decision.
3. First-tier Tribunal. Judge White, in a decision promulgated on 13 July 2019, dismissed the second appeal, finding that new evidence justified revisiting Judge Randall’s earlier findings.
4. Earlier First-tier Tribunal appeal. Judge Randall allowed the first appeal on the general grounds of refusal because the Secretary of State had not proved that the documents were false.