Shahanas Kanhirakandan v The Secretary of State for the Home Department

On a point-of-law appeal, a mistake of fact giving rise to unfairness is a distinct ground of challenge where the parties share an interest in achieving the correct result. The mistake may concern the availability of evidence. Fresh evidence remains governed by Ladd v Marshall [1954] 1 WLR 1489, but those principles are a starting point and may be relaxed in exceptional circumstances where the interests of justice require. Findings made in ignorance of material evidence may therefore be set aside where preserving them would create objective unfairness.

The appellant challenged the Upper Tribunal’s decision allowing the Secretary of State’s appeal from the First-tier Tribunal and remitting the human-rights appeal for rehearing. The First-tier Tribunal had found that the Secretary of State had not produced evidence establishing dishonesty in earlier immigration applications. The Upper Tribunal held that those findings were affected by ignorance of material evidence, including evidence considered in earlier judicial review proceedings, and should not be preserved.

The Court of Appeal considered whether the Upper Tribunal had lawfully admitted that evidence and interfered with the First-tier Tribunal’s findings. The issue was materially affected by the possible application of the reasoning in Ahsan v Secretary of State for the Home Department [2017] EWCA Civ 2009 if the appellant were found not to have used deception.

1. The appeal was dismissed unanimously. Lady Justice Whipple gave the judgment, with Lady Justice Asplin and Sir Julian Flaux agreeing. The remittal to the First-tier Tribunal was not challenged. The question was whether findings on honesty or dishonesty should be preserved.
2. The Court applied the principles in E v Secretary of State for the Home Department; joined with R v Secretary of State for the Home Department [2004] EWCA Civ 49. A mistake of fact giving rise to unfairness is a separate ground of challenge on an appeal limited to points of law, at least where the parties share an interest in achieving the correct result. The relevant considerations are whether there was a mistake about an existing fact or the availability of evidence; whether the fact or evidence was established, uncontentious and objectively verifiable; whether the appellant was responsible for the mistake; and whether it materially affected the tribunal’s reasoning.
3. The admission of fresh evidence was a case-management decision under the Tribunal Procedure (Upper Tribunal) Rules 2008. The Upper Tribunal had a broad discretion, and the Court of Appeal should intervene only on a proper basis. The principles in Ladd v Marshall [1954] 1 WLR 1489 remained the starting point. They could, however, be departed from in exceptional circumstances where the interests of justice required.
4. Exceptional circumstances existed. The appeal was to be remitted in any event, so finality was not decisive. The evidence was significant because the Ahsan argument had brought dishonesty to the centre of the rehearing. The appellant knew of the evidence and was not taken by surprise. The evidence would probably have materially affected the First-tier Tribunal’s findings, and there was a wider public interest in ensuring that immigration decisions were made on complete information.
5. The First-tier Tribunal had been unaware that the evidence existed and was available. That fact was established and directly relevant. Although the Secretary of State bore primary responsibility for failing to disclose it, the appellant also bore some responsibility because he knew of the judicial review and did not refer to it. The ignorance of the evidence materially affected the findings at paragraph 10. Those findings were therefore affected by a mistake of material fact amounting to an error of law and were not to be preserved. The issue of honesty or dishonesty remained live for determination by the First-tier Tribunal.

1. Court of Appeal (Civil Division): dismissed the appellant’s appeal and upheld the Upper Tribunal’s decision not to preserve the First-tier Tribunal’s findings on dishonesty.
2. Upper Tribunal (Immigration and Asylum Chamber): allowed the Secretary of State’s appeal from the First-tier Tribunal, set aside the First-tier Tribunal’s decision without preserving findings, and remitted the appeal for a fresh hearing.
3. First-tier Tribunal (Immigration and Asylum Chamber): made the disputed findings that the Secretary of State had failed to establish dishonesty and considered the appellant’s human-rights claim. Those findings were later set aside by the Upper Tribunal.