DK (India) & Anor v The Secretary of State for the Home Department

The Upper Tribunal must determine appeals judicially by reference to the evidence before it. It must not rely on opinions expressed in a non-judicial setting about evidence considered by another body. This remains so even where the evidence is substantially the same, since the Tribunal must reach its own conclusions by applying the relevant burden and standard of proof.

Parliamentary privilege also prevents the Tribunal from questioning, criticising or interfering with Parliamentary proceedings, whether by reference to free speech in Parliament or the constitutional separation of powers. A document may be admitted as a factual record of what was said in a Parliamentary setting where doing so does not require the Tribunal to evaluate Parliamentary proceedings or adopt the views expressed there.

These were human rights appeals by DK and RK concerning decisions to curtail their leave to remain and refuse subsequent human rights claims on the basis that they had cheated in oral English tests administered by the Educational Testing Service.

The appeals had been remitted to the Upper Tribunal by the Court of Appeal following discrete errors of law. The remittal also raised the significance of a July 2019 report by an All Party Parliamentary Group on TOEIC. The Tribunal had to decide whether to admit that report, whether to admit a transcript of evidence given to the Group, and whether Migrant Voice should intervene.

1. Parliamentary privilege. Article 9 of the Bill of Rights 1689 protects Parliamentary freedom of speech and proceedings. The Upper Tribunal is not bound by formal rules of evidence, but it cannot act in a way that violates Parliamentary privilege or the constitutional separation of powers. It cannot criticise or question proceedings of the legislature.
2. The APPG was an informal body without official Parliamentary status, so its report was not itself a Parliamentary proceeding within Article 9. Nevertheless, admitting the report would draw the Tribunal into evaluating views expressed about the accuracy of evidence given to Parliamentary committees. That would conflict with the Tribunal’s judicial role and the wider principle of mutual respect between the legislative and judicial branches.
3. Independent assessment of evidence. Courts and tribunals must decide cases on the evidence and submissions before them, rather than adopting the views of another body formed on different evidence in a non-judicial setting. Even where the evidence is the same, the court or tribunal must reach its own view by applying the applicable burden and standard of proof. The opinions in the APPG report were therefore not materially admissible for determining the evidence in the remitted appeals.
4. The verified transcript of what was said to and by Professor Sommer, Professor French and Dr Harrison at the APPG hearing could be admitted as a factual record. Its admission did not infringe Parliamentary privilege because the Tribunal would assess the evidence independently and would not treat the APPG’s opinions as authoritative.
5. Intervention. Migrant Voice was permitted to intervene on limited legal and procedural issues of potentially wider relevance. Its opinions about the respondent’s conduct in ETS cases, including opinions derived from the APPG report, were not admitted as expert evidence. The transcript and recording could additionally be adduced subject to verification.

• Court of Appeal: The appeals were remitted to the Upper Tribunal following discrete errors of law. The judgment gives no citation for the remittal decision.
• Upper Tribunal (Immigration and Asylum Chamber): The APPG report was not admitted. The verified transcript was admissible as a factual record, and Migrant Voice was permitted to intervene on a limited basis.