England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
(Mr Justice Scott Baker)

		Royal Courts of Justice Strand London WC2 Wednesday 31 January 2001

Wednesday 31 January 2001

1. LORD JUSTICE MAY: With some hesitation, I propose to give permission to appeal in this case. Since I have reached that conclusion, I shall state quite briefly why I am doing it, in neutral terms which should not be interpreted as giving undue encouragement to the eventual success of the appeal.
2. This is an application for permission to appeal against the decision of Scott Baker J on 17 October 2000 in an asylum case. Permission to apply for judicial review had been given, and before Scott Baker J was an application for judicial review of a decision of the Immigration Appeal Tribunal, where the hearing took place on 10 January 2000 and the determination was notified on 16 February 2000.
3. The claimant arrived in the United Kingdom from Iran on 21 January 1998. He applied for asylum on the basis that he would be persecuted for his faith in Iran if he returned there. He claims to be a Jehovah's Witness. On 4 May 1999 the Secretary of State refused his application for asylum. He appealed to a special adjudicator, and the special adjudicator dismissed that appeal on 13 October 1999.
4. Put very shortly, the special adjudicator did not believe the material parts of the applicant's evidence. He did not believe that the applicant had suffered ill-treatment in Iran, nor that his account of being a Jehovah's Witness was true. He took into account the general country information which had been put before him, including the latest United States State Department report, and regarded it as accurate that these continued to see Iran as a totalitarian society in which any act of abandonment of Islam or apostasy would put a person in very grave peril of his life, both from the authorities and the local community; but he did not believe that the applicant had in fact taken a real interest in the Jehovah's Witness creed.
5. The applicant applied for permission to appeal to the Immigration Appeal Tribunal. This was not on the basis that the special adjudicator had got anything wrong, but upon what was in effect an application to adduce fresh evidence. The grounds of appeal referred to "further written evidence and witness statements" and asserted that Mr Timson of the Immigration Advisory Service, who had represented the applicant before the special adjudicator, had had this material, or some of it, available to use but had advised against its use or production. Upon these grounds application for permission was sought. The Immigration Appeal Tribunal gave limited permission to appeal. As I read it, the substance of the limited permission to appeal was for the purpose, in the first instance, of considering whether this fresh material should be admitted.
6. The Immigration Appeal Tribunal heard the matter and considered that it was necessary to inquire into the circumstances as to why the new material had not been put before the special adjudicator. The Immigration Appeal Tribunal took the view that Mr Green, who then represented the applicant, had really made no attempt whatever to give a proper explanation. In particular, he had entirely failed to seek Mr Timson's account of why this material was not put before the special adjudicator. In these circumstances, the Immigration Appeal Tribunal in substance concluded that the new material should not be admitted. It also noted the concession by Mr Green that the adjudicator's determination was not subject to any proper criticism on the evidence that was before him, and that there was no breach of natural justice.
7. Permission, as I say, was given to apply for judicial review. Scott Baker J considered in greater detail than I have the circumstances in which the Immigration Appeal Tribunal reached its decision. He also quoted in full an explanation from Mr Timpson which had come to the Immigration Appeal Tribunal after the hearing but before its determination and which, in substance, says that the account in the grounds of appeal and material supporting them about why the documents and statements were not put before the special adjudicator was simply untrue.
8. In those circumstances, Scott Baker J considered at some length a judgment of Latham J in a case called Aziz [1999] 1 INLR 355 as to the circumstances in which the Immigration Appeal Tribunal would admit fresh evidence. Latham J referred to the well-known considerations deriving from Ladd v Marshall [1954] 1 WLR 1489 and, in effect, observed that the second and third parts of those considerations - that is to say, the questions whether the new material would have an important influence on the case and whether it was apparently credible - remained valid; but that the first consideration - namely, that it must be shown that the evidence could not have been obtained with reasonable diligence for use at trial - is of less force, although not irrelevant, in asylum appeals.
9. The decision that Scott Baker J came to was, I think, encapsulated in three short paragraphs of his judgment.

"29. Miss Plimmer's submissions, it seems to me, really, in the end, come to this, that the circumstances in which evidence was not adduced before the Special Adjudicator pale into complete insignificance when weighed against the other matters, namely the apparent credibility of the evidence and the effect that the evidence would be likely to have on the decision under appeal. If one took Miss Plimmer's argument to its logical conclusion it seems to me that this would open the door for every unscrupulous Claimant and his advisers to withhold critical evidence and then come back later with an argument that they had an unassailable point justifying them to a second bite at the cherry.

30. I do not believe that that is the correct position. It seems to me that just as the new rules make it clear that there has to be some good reason for new evidence to be adduced, so, looking at cases that predate the new rules, it is necessary to examine, with some care, the circumstances that have attained at the hearing before the Special Adjudicator and what the representatives have to say about why the evidence was not then obtained and put before the Adjudicator.

31. I cannot, in these circumstances, see that there are any good grounds for saying that the Immigration Appeal Tribunal's handling of this matter was, in any way, wrong in law, unjust or unfair to the Claimant. I can see no grounds for granting judicial review and therefore this application fails."

10. It is, I think, of significance to note that in paragraph 24 of his judgment, Scott Baker J says this:

"Nevertheless it does seem to me to be a matter of very considerable importance when arguments are advanced that there is evidence which is apparently credible and which could have affected the ultimate decision, to look very carefully at the circumstances in which it was not adduced before the Special Adjudicator, particularly where as here there was apparently competent representation of the Appellant. In my experience the circumstances in which evidence of this kind was not adduced before the Special Adjudicator is very often closely inter-linked with the question of the credibility of the evidence."

11. That is evidence, I think, that Scott Baker J was alert to the question of the credibility of the proposed evidence and, no doubt, to its importance to the issue in the appeal.
12. When Laws LJ considered this application on paper, he refused it. He said:

"Scott Baker J was right to refuse permission to seek [judicial review] for the reasons he gave. Moreover (a) it is apparent that lies were told in the Notice of Appeal to the [Immigration Appeal Tribuna]l (quoted at para 4 of Scott Baker J's judgment: cf the material at paragraph 26); (b) there is no inconsistency between Scott Baker J's judgment and the judgment of Latham J as he then was in [the case of] Aziz."

13. The reason why I am persuaded, notwithstanding the force of what Laws LJ said (with which in substance I agree) is this. Miss Plimmer has submitted, I think correctly, that you cannot find explicit reference, either in the document giving permission to appeal to the Immigration Appeal Tribunal, or in the determination and reasons of the Immigration Appeal Tribunal, or in the chairman's affidavit for the purpose of the judicial review proceedings, any explicit indication that the Immigration Appeal Tribunal considered in the balance of their decision the matters alluded to in the second and third limbs of Ladd v Marshall; that is to say, the apparent credibility of the proposed evidence and the importance it would or would not have in relation to the issues.
14. The submission is that the Immigration Appeal Tribunal concentrated, and concentrated alone, on the unsatisfactory circumstances in which the evidence was not called or the unsatisfactory circumstances in which the grounds of appeal asserted a reason why the evidence was not called. The submission, accordingly, is that, whether or not Scott Baker J looked to the apparent credibility of this proposed evidence, it appears that the Immigration Appeal Tribunal did not. Accordingly, it is submitted that they failed to have regard to two material matters in determining whether or not this evidence should be admitted.
15. Without giving any indication as to the likelihood of that submission eventually succeeding on appeal, it seems to me that it is at least reasonably arguable in the circumstances of this case. For that reason, and that reason alone, I give permission to appeal.
ORDER: Application allowed. If the matter does not proceed, detailed assessment of the applicant's costs. (Order not part of approved judgment)