Mohammad Faroque Hossain Baparee, R (on the application of) v Secretary of State for the Home Department

Judicial notice is confined to facts that are so notorious or clearly established that evidence is unnecessary, or that can be demonstrated immediately from readily accessible sources of indisputable accuracy. A tribunal cannot rely on its judges’ personal experience as evidence to make a material factual finding. Where that finding contradicts a witness and affects credibility, the criticism should be put fairly and squarely to the witness. On appeal, fresh evidence is governed by procedural discretion and the overriding objective. The Ladd v Marshall principles remain relevant, but evidence reasonably obtainable earlier will generally require exceptional circumstances or the interests of justice before admission in a public-law appeal.

The appellant challenged the Secretary of State’s decision of 3 January 2023 that his application for leave to remain as the dependant of an overseas business representative was invalid.

The Upper Tribunal found the proposed challenge arguable but refused to extend time. It was not satisfied that an earlier claim had been posted in March 2023 and considered the later application substantially delayed.

The appeal concerned whether the Upper Tribunal had unlawfully relied on its experience that post offices did not open on Sundays, whether that error affected its assessment of the appellant’s evidence, and whether fresh evidence could cure the error.

Appeal allowed. The Court of Appeal, in the judgment of Holgate LJ agreed by Singh LJ, held that the Upper Tribunal’s approach to the alleged Sunday closure of post offices involved a material error of law.

1. Judicial notice. Judicial notice is available only for facts so notorious or clearly established that evidence is unnecessary, or capable of immediate accurate demonstration from readily accessible sources of indisputable accuracy. The Tribunal’s personal experience was not evidence. The absolute proposition that post offices did not open on Sundays was not a proper matter for judicial notice. The finding formed an integral part of the reasoning on whether the appellant had posted the claim and affected the assessment of his reliability.
2. Procedural fairness. The Tribunal’s view contradicted the appellant’s evidence and implicitly criticised his reliability. That criticism should have been put fairly and squarely to him, particularly since the respondent did not cross-examine him. The Tribunal’s failure to do so was a further troubling procedural feature.
3. Fresh evidence. Under Civil Procedure Rules 1998, CPR 52.21 and CPR 52.11(2)(b), the power to admit fresh evidence is exercised in accordance with the overriding objective. The principles in Ladd v Marshall [1954] 1 WLR 1489 remain relevant considerations, but no longer constitute the primary rules defining the court’s power. Public-law cases may justify a flexible approach where exceptional circumstances or the interests of justice require it. That assessment is fact-sensitive.
4. Application and order. The fresh evidence could, with reasonable diligence, have been obtained for the Upper Tribunal hearing. No exceptional circumstances justified departing from the ordinary approach. The applications to adduce fresh evidence were therefore refused. The Respondent’s Notice was dismissed, and the matter was remitted to the Upper Tribunal, before a different constitution, for redetermination of the application for an extension of time and permission to apply for judicial review.

• Court of Appeal (Civil Division): [2025] EWCA Civ 1464, 14 November 2025. Appeal allowed and matter remitted to the Upper Tribunal before a different constitution.
• Upper Tribunal (Immigration and Asylum Chamber): In proceedings numbered JR-2024-LON-001256, the Tribunal refused to admit the judicial review application and refused an extension of time, despite finding the proposed grounds arguable.