E v Secretary of State for Home Department

Factual and Procedural Background

This judgment concerns two appeals heard together that raise a common issue regarding the powers of the Immigration Appeal Tribunal ("IAT") and the Court of Appeal to review IAT determinations based on factual mistakes and to admit new evidence to demonstrate such mistakes.

The appellants, referred to as "E" and "R", are asylum seekers. E is an Egyptian national who claimed asylum on the basis of alleged persecution due to sympathies with the Muslim Brotherhood. His asylum claim was refused by the Home Secretary, confirmed by the Adjudicator and the IAT. The IAT accepted that Muslim Brotherhood members were detained in Egypt but concluded the arrests related to the 2000 elections and that E's involvement was minimal, leading to dismissal of the appeal.

E sought to appeal on the basis of new reports published after the hearing but before the decision was promulgated, which indicated ongoing persecution of Muslim Brotherhood members. The IAT refused permission to appeal, holding that it could only consider evidence before it at the hearing.

R is an Afghan national who claimed asylum due to conversion from Islam to Christianity, fearing persecution. The Adjudicator accepted his evidence but rejected the claim on grounds that the Taliban were no longer in power and the risk had diminished. The IAT upheld this decision. R sought permission to appeal relying on a new country report and an expert report produced after the hearing but before promulgation. Permission was refused on grounds that the new evidence was not available at the time of hearing and that administrative delay in promulgation did not justify reopening.

Permission to appeal in both cases was granted by the Court of Appeal to clarify the jurisdictional issues concerning admitting new evidence and reviewing IAT decisions based on factual mistakes.

The statutory framework involves the Immigration and Asylum Act 1999 ("1999 Act"), the Nationality, Immigration and Asylum Act 2002 ("2002 Act"), and the Immigration and Asylum Appeals (Procedure) Rules 2003 ("2003 Rules"). Appeals to the IAT under the 1999 Act were not confined to points of law, but appeals from the IAT to the Court of Appeal were limited to questions of law.

Legal Issues Presented

1. Can the Tribunal take account of material which becomes available between the date of the hearing and the date of the promulgation of its decision ("the decision date")?
2. Where such material was in existence before the decision date but is first drawn to the attention of the Tribunal on the making of an application for permission to appeal, does the Tribunal have power to re-open its decision in order to take it into account?
3. What is the relevance of such evidence to an appeal limited to questions of law?
4. If it is relevant, what principles should the Court of Appeal apply in exercising its discretion to admit it?

Arguments of the Parties

Appellant's Arguments

• The appellants contended that the new evidence was available before the promulgation of the IAT decisions and would have materially affected the determinations.
• They argued for a more flexible approach to admitting new evidence in asylum cases, especially where it demonstrates a mistake of fact underlying the Tribunal's decision.
• They relied on several cases supporting the admission of new evidence and the recognition of error of fact as a ground of appeal even when limited to questions of law.

Respondent's Arguments

• The Secretary of State preferred a strict approach, emphasizing that appeals to the Court of Appeal are limited to questions of law and the Court should not admit new evidence that was not before the IAT at the time of hearing.
• He submitted that the IAT was entitled to reject new evidence produced after promulgation on the basis that it could have been made available earlier.
• The Secretary of State argued that exceptions to the strict rules on new evidence are limited and that the principles in Ladd v Marshall apply, which normally bar admission of late evidence.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by identifying the statutory framework governing appeals to the IAT and the Court of Appeal, noting that at the relevant time appeals to the IAT were not confined to points of law, but appeals to the Court of Appeal were so limited.

It considered the powers of the IAT to admit new evidence between the hearing and promulgation, concluding the IAT remains seized of the matter until formal notification and therefore can admit such evidence. The Court then examined the IAT's power to direct a re-hearing upon receipt of new evidence when considering applications for permission to appeal, finding no statutory or procedural limitation requiring the IAT to have found an arguable error of law before directing a re-hearing. However, the principle of finality remains important, and reopening would require a risk of serious injustice.

The Court distinguished between the relevance of new evidence in appeals limited to points of law and the discretion to admit such evidence. It emphasized the importance of maintaining the distinction between error of fact as a ground of appeal and the admission of new evidence. The Court accepted that error of fact, particularly where it causes unfairness, can constitute an error of law justifying appellate intervention.

The Court reviewed extensive authority, including the landmark case of R v Criminal Injuries Compensation Board ex parte A, which recognized jurisdiction to quash decisions based on material error of fact causing unfairness. It acknowledged academic and judicial debate but concluded that mistake of fact giving rise to unfairness is a separate ground of challenge on an appeal on a point of law, particularly in statutory contexts where parties share an interest in correct decisions, such as asylum law.

Regarding the admission of new evidence, the Court reaffirmed the general application of the Ladd v Marshall principles but recognized that in asylum and public law cases these principles may be relaxed in exceptional circumstances where interests of justice require.

The Court analyzed the conflicting lines of authority on admitting new evidence in asylum appeals, distinguishing cases involving continuing duties of the Secretary of State (where more flexible approach applies) from appeals against finite decisions of the IAT (where stricter rules apply but with some flexibility). It rejected the suggestion that recent cases had discarded the established approach to new evidence in appeals limited to points of law.

Applying these principles to the present cases, the Court found that the IAT erred in law by refusing to consider the new evidence solely on the basis that it was not before the Tribunal at the hearing or promulgation. The Court recognized practical difficulties in expecting continuous monitoring of new evidence between hearing and promulgation and considered the application for leave to appeal as the appropriate stage to consider such evidence.

The Court made preliminary assessments of the new evidence in each case, noting that some evidence was credible and potentially material, though not necessarily decisive. It concluded that the IAT should have exercised its discretion to consider whether to direct a re-hearing in light of the new evidence.

Given the IAT's superior position to assess the impact of the new evidence, the Court declined to decide whether the evidence demonstrated an error of law but remitted the cases for reconsideration.

Holding and Implications

The appeals are allowed on the narrow ground that the Immigration Appeal Tribunal wrongly refused to consider new evidence in its discretion to direct a rehearing.

The cases are remitted to the IAT for reconsideration in light of the principles set out in the judgment, including the proper exercise of discretion regarding the admission of new evidence and the power to direct a rehearing. This decision clarifies the scope of the IAT’s and Court of Appeal’s powers concerning new evidence and error of fact in asylum appeals under the statutory regime applicable at the time.

No new precedent is established beyond the clarification of the existing principles and their application to the facts of these cases. The ruling emphasizes the balance between finality and fairness in asylum appeal procedures, recognizing the need for flexibility in admitting new evidence where justice so requires.