Mahmuda Akter & Ors v The Secretary of State for the Home Department

An appellate tribunal in an immigration appeal has no free-standing duty under Human Rights Act 1998, section 6, to disturb a decision which contains no error of law. Its jurisdiction is governed by sections 12 and 14 of the Tribunals, Courts and Enforcement Act 2007. A challenge based on mistake of fact giving rise to unfairness must be clearly advanced when permission to appeal is sought and must satisfy the principles in Ladd v Marshall, as applied in E and R v Secretary of State for the Home Department. The possibility of making fresh submissions under paragraph 353 of the Immigration Rules is highly material when deciding whether those principles should be modified in exceptional circumstances.

The appellants challenged the refusal of their human rights claims and the First-tier Tribunal’s dismissal of their appeals. Permission to appeal was refused by the First-tier Tribunal and by Upper Tribunal Judge Owens. Judicial review proceedings followed, and the Court of Appeal quashed the refusal of permission, leading to the renewed application before the Upper Tribunal.

The appellants sought to amend their grounds to rely on the later diagnosis of the third appellant’s sarcoidosis and her subsequent registration as a British citizen. They argued, relying principally on GM (Sri Lanka) v Secretary of State for the Home Department and E and R v Secretary of State for the Home Department, that the Upper Tribunal was required to disturb the First-tier Tribunal’s decision or admit the new evidence. The central issues were the scope of appellate jurisdiction, the mistake-of-fact jurisdiction, and the significance of the fresh-claim procedure.

1. Permission refused. The First-tier Tribunal’s decision was otherwise free from legal error, and there was no arguable error of law in Upper Tribunal Judge Owens’s refusal of permission.

2. GM (Sri Lanka) v Secretary of State for the Home Department [2019] EWCA Civ 1630 did not establish a free-standing duty under section 6 of the Human Rights Act 1998 to disturb a lawful lower tribunal decision. Under sections 12 and 14 of the Tribunals, Courts and Enforcement Act 2007, the appellate jurisdiction is engaged only where the decision under appeal involved an error of law. The position in GM (Sri Lanka) was different because discrete errors of law had been identified before the Court of Appeal considered the appropriate relief.

3. The continuing obligation of the Secretary of State to act compatibly with the ECHR up to removal, together with the procedure for fresh submissions under paragraph 353 of the Immigration Rules, meant that later changes in health or citizenship could be raised through a fresh claim and did not require reopening an error-free tribunal decision.

4. Under E and R v Secretary of State for the Home Department [2004] EWCA Civ 49, a mistake of fact giving rise to unfairness requires an existing and established fact or evidence, the appellant not to have been responsible for the mistake, and the mistake to have played a material part in the tribunal’s reasoning. Admission of new evidence is subject to the principles in Ladd v Marshall [1954] 1 WLR 1489, subject to exceptional modification where the interests of justice require.

5. The medical evidence could and should have been put before the First-tier Tribunal before promulgation. The appellants’ ability to make fresh submissions under paragraph 353 was highly material, and there was no reason to dilute the Ladd v Marshall principles. The later British citizenship likewise disclosed no risk of serious injustice warranting reopening the proceedings.

6. A party seeking to rely on an E and R challenge should identify and substantiate that basis clearly when seeking permission to appeal.

• First-tier Tribunal: dismissed the appellants’ appeals against refusal of their human rights claims.
• Upper Tribunal: Upper Tribunal Judge Owens refused permission to appeal on 17 October 2019.
• Administrative Court: Linden J refused permission for judicial review on 23 January 2020.
• Court of Appeal: Singh LJ granted permission for judicial review on 23 November 2020. The cover sheet states that the Court of Appeal quashed the Upper Tribunal’s refusal of permission.
• Upper Tribunal (Immigration and Asylum Chamber): refused permission to appeal.