The Secretary of State for the Home Department v Krupaliben Sanikumar Patel

In a later immigration appeal involving different parties but materially overlapping evidence, earlier factual findings are a starting point under Devaseelan [2002] UKIAT 00702, not an estoppel. The second tribunal must decide the case fairly on the evidence before it. It should follow the earlier findings unless there is a very good reason to depart. The prior availability of evidence is relevant, but it is not decisive. Cogent evidence contradicting a core aspect of the claim may justify departure. A tribunal commits an error of law if it fails to assess substantive new evidence relevant to that question. ETS deception cases also require a three-stage assessment of evidential and legal burdens.

The appellant challenged the Upper Tribunal’s decision allowing the Secretary of State’s appeal from a First-tier Tribunal decision. The First-tier Tribunal had allowed the appellant’s appeal against refusal of leave to remain, relying on factual findings made in an earlier appeal by her husband.

In that earlier appeal, the First-tier Tribunal had found that alleged deception concerning ETS English tests had not been established. The later tribunal had evidence about the appellant’s tests but did not assess it, treating the earlier findings as determinative. The central issue was the proper application of the Devaseelan principles in a different-party case involving overlapping evidence.

Disposition

1. Appeal dismissed. Lord Justice William Davis gave the leading judgment, with Lord Justice Moylan and Lady Justice King agreeing. The Upper Tribunal had correctly identified an error of law and the appellant’s case was remitted to a different First-tier Tribunal judge for a fresh hearing.
2. Different-party cases. The Devaseelan principles apply where parties differ but there is a material overlap of evidence. The earlier determination is the starting point and should ordinarily be followed unless there is a very good reason to depart. The approach must be adapted to the nature of the new evidence, the circumstances in which it was or was not given earlier, its materiality to a just outcome, and considerations of fairness and consistency.
3. Fair assessment of later evidence. The second tribunal is not subject to estoppel and must conscientiously and fairly decide the case before it. Fairness includes avoiding unnecessary re-litigation of a point previously decided in a party’s favour, but it does not restrict the tribunal to evidence arising after the earlier hearing. Whether evidence could have been adduced earlier is relevant, but sufficiently cogent and compelling evidence may itself provide a very good reason for departure.
4. Application. The earlier judge had made findings without the ETS evidence. The later judge relied on the absence of an explanation for failing to adduce that evidence earlier but did not assess its substance. That assessment was essential to deciding whether there was a very good reason to depart from the earlier findings. The failure was therefore an error of law.
5. Ancillary points. In an ETS deception case the First-tier Tribunal must engage with the three-stage process concerning the Secretary of State’s initial evidential burden, the appellant’s innocent explanation, and the Secretary of State’s final legal burden. The court made no finding on deception or the Article 8 claim. It added, obiter, that clear evidence of fraud may be relevant to the cogency of new evidence and the existence of a very good reason to depart.

• Court of Appeal (Civil Division) — Appeal dismissed. The case was remitted for a fresh hearing before a different First-tier Tribunal judge: [2022] EWCA Civ 36.
• Upper Tribunal (Immigration and Asylum Chamber) — Judge Hanson allowed the Secretary of State’s appeal from the First-tier Tribunal, found an error of law in the treatment of the earlier factual findings, and remitted the case.
• First-tier Tribunal — Judge Cockrill allowed the appellant’s appeal against refusal of leave to remain, relying on factual findings made in the earlier appeal involving her husband.