England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
(MR JUSTICE SCOTT BAKER)

		Royal Courts of Justice Strand London WC2 Thursday, 14th June 2001

Thursday, 14th June 2001

1. LORD JUSTICE KEENE: This is an appeal against the refusal by Scott Baker J on 17th October 2000 of an application for a judicial review of a decision of the Immigration Appeal Tribunal. It was contended in form 86A seeking judicial review that the Immigration Appeal Tribunal ("the Tribunal"), had acted unfairly and ultra vires in its conduct of the appeal hearing.
2. The appellant is a citizen of Iran. He arrived in the United Kingdom on 21st August 1998 and claimed asylum on the basis that he feared persecution in Iran as someone who had abandoned Islam and become a Jehovah's Witness. On his appeal to a special adjudicator, he gave evidence at the hearing in September 1999 that while in Cyprus in 1995 he had become interested in the Jehovah's Witness creed. He said that he had been to meetings, taught others about it and persevered in these actions despite warnings from his family in Iran that his involvement with Jehovah's Witnesses was becoming known there. He described marrying a Cypriot woman of the Muslim faith in 1995 in a Muslim ceremony. He said that she knew of his change of faith. He stated that in 1997 they visited Iran but he was arrested and detained on two occasions, being punched and kicked because of his abandonment of Islam. After being released on bail after the second detention, he left Iran in January 1998 on a false passport. He said that he stayed in Istanbul for a time and did not seek to go to Cyprus where his wife had gone.
3. The Special Adjudicator did not believe crucial parts of the appellant's story. He did not accept that the appellant had ever abandoned Islam or had a real interest in the Jehovah's Witness faith. The Adjudicator spelled out his reasons for this, and they do not need to be recited in this judgment. The Adjudicator did not accept that the appellant had ever been in trouble with the Iranian authorities over religion. He found that the appellant was not credible in his claim to have been persecuted in Iran or had a real fear of persecution. The appeal was dismissed.
4. Before the Special Adjudicator the appellant had been represented by someone from the Immigration Advisory Service ("the IAS"). The appellant then sought leave to appeal to the Tribunal on the ground that he had fresh evidence saying that he had been advised by the IAS not to produce to the Special Adjudicator certain written evidence and witness statements which he had had available. He also said that he had not been aware that he was entitled to call witnesses at the hearing and wished to do so now, a Mr Laksari and a Mr Sefidroh. He listed the documentary evidence which he wished to put in, some of which was dated since the hearing before the Special Adjudicator. He was granted leave to appeal to the Tribunal but on what was clearly a limited basis. The grounds of leave stated:

"The solicitors who have entered this application will be aware that it is not the Tribunal's practice to consider evidence which could readily have been produced before the Special Adjudicator. The only reason given for its non-production amounts to an allegation relating to the Immigration Advisory Service's conduct of the Applicant's appeal and the Applicant will need to be ready to establish the truth of that application as a preliminary matter before the Tribunal."

5. The appellant was by now represented by a firm of solicitors who wrote to the Tribunal to say that the appellant proposed calling Mr Laksari and Mr Sefidroh on the appeal. These two men had written letters in October 1999 which were amongst those attached to the notice of appeal as constituting fresh evidence. Neither of them made in those letters any references to having been present on any occasion when the IAS had advised the appellant in the way that he alleged.
6. The Tribunal chairman responded to the Appellant's solicitors' letter saying that leave was granted to call the appellant only, and only then on the issue identified when leave was granted. There was some further correspondence subsequently and then the hearing before the Tribunal took place on 10th January 2000.
7. By that date the solicitors had obtained the appellant's file from the IAS, but the appellant's representative at the Tribunal hearing said that there was nothing in it to which he would be drawing attention in support of the appellant's allegation against the IAS. The representative, a Mr Green, told the Tribunal that when contacting the IAS he had not mentioned the appellant's allegation to them nor had he sought to obtain their reaction to it. The Tribunal declined to allow the appellant to be called, saying in their eventual written determination and reasons that:

"... we should be being asked to make a judgment on the Immigration Advisory Service's professional conduct of the case on the basis of evidence which could only be partial. The new representative had had every opportunity to discover whether there was any merit in the Appellant's allegations but had chosen not to do so, and had full notice that the allegation was to be considered as a preliminary issue but had not prepared to establish it. Although it may be that in certain circumstances the Tribunal will act in order to remedy incompetence or misconduct by representatives, it will not do so unless properly satisfied that the Appellant has actually been prejudiced by his former representatives."

8. After the hearing but before the written determination by the Tribunal of the appeal, Mr Green had written to the IAS on 13th January 2000 saying that the IAT "requires to know" why two documents, a letter from the appellant's sister dated 7th August 1999 and a fax letter from a Mr Michael Georgiou the 27th July 1999 had not been put before the Special Adjudicator.
9. The IAS replied on 17th January 2000 by letter from the person who had represented the appellant before the Special Adjudicator. He stated that he had never been shown the two letters, and that if he had, they would have been handed in.
10. The Tribunal received copies of the letter to the IAS and the reply thereto dated 17th January 2000 before making its determination which was sent on 16th February 2000. The Tribunal stated that they were not prepared to allow what they called a retrial of the appeal on a bare allegation against the IAS. They saw the matter as being closed at the end of the hearing before them, but they observed that nothing in the letter from the IAS gave any support for the Appellant's allegation against them. The Tribunal concluded as follows:

"Mr Green conceded that the Adjudicator's determination was not subject to any proper criticism on the evidence that was before him. There was and is no breach of natural justice. Before the Adjudicator the Appellant was represented by a representative of his choice, whom he retained for the whole of the hearing. He gave evidence and was not believed. There is no reason for him to have his appeal retried. His appeal to the Tribunal is dismissed."

11. It is clear from the determination and reasons that the Tribunal was refusing the application to admit the fresh evidence which had been attached to the notice of appeal to it.
12. Next came the application for judicial review advanced on the basis that there had been procedural unfairness by the Tribunal. It is unnecessary to deal with all the matters which were raised because they have not all been pursued before this Court. It was said that the appellant had had a witness to the interchange between himself and his former representative from the IAS, that witness being Mr Sefridoh. A witness statement by the solicitor, Mr Green, was lodged with the Tribunal in support of the application for judicial review stating that he had seen little point in writing to the IAS about the allegation against them because they would only deny it.
13. Scott Baker J rejected the argument that there had been procedural unfairness. He concluded that the Tribunal's decision not to hear the appellant on the allegation about the IAS's conduct of this case had to be seen in the context of the Tribunal's awareness of what the appellant was alleging and, in addition, the absence of any steps at all to obtain the response of the IAS to that allegation. He also rejected an argument that the circumstances in which the evidence had not been adduced before the Adjudicator were of no significance when weighed against the apparent credibility of the evidence and its potential effect on the decision. That was an argument which really went beyond the issue of whether the allegation against the IAS was well-founded or not, and really raised the wider question of the Tribunal's decision not to admit the fresh evidence itself on the substantive issues in the case. It is on this aspect of the case, the refusal to admit the fresh evidence, that the appellant now concentrates.
14. Miss Plimmer on his behalf submits that the Tribunal erred in law in the decision which it made refusing to admit the fresh evidence. It is contended that the Tribunal failed to consider the apparent credibility of the fresh evidence and its potential importance to the appeal, and went wrong in treating as a preliminary issue the explanation for the non-production of the evidence at the hearing before the Special Adjudicator.
15. Miss Plimmer argues that the decision on whether to admit fresh evidence should have balanced the fact that the relevant material could have been adduced before the Adjudicator against the apparent credibility of the material and its potential effect on the ultimate decision in the asylum appeal. Instead, the Tribunal, it is said, focused exclusively on the first of those considerations, and it therefore misused its discretion. Reliance is placed on a decision of Latham J, as he then was, in Regina v Immigration Appeal Tribunal ex parte Aziz [1999] INLR 355. In that case reference was made to the well-known statement of Lord Denning in Ladd v Marshall [1954] 1 WLR 1489, at 1491:

"In order to justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive: third, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, although it need not be incontrovertible."

16. Latham J then continued in Aziz as follows:

"Both the applicant and the respondent agree that the decision in Ladd v Marshall is not determinative of the question which arises in asylum appeals.

In my judgment, they are right insofar as Ladd v Marshall requires the litigant to establish that the evidence could not have been obtained with due diligence. That would be an unjustifiably restrictive approach in this sensitive and difficult jurisdiction.

The second and third tests do, however, remain valid. The evidence cannot justify the grant of leave unless it is apparently credible and could affect the ultimate decision. The fact that it is tendered late is, however, a relevant consideration. There is a public policy interest in ensuring, so far as possible, that all relevant material is presented to the special adjudicator. Where where an asylum-seeker has been legally advised throughout, the Immigration Appeal Tribunal is entitled to look with scepticism at any new material submitted in support of a leave application, if it could have been obtained for the hearing before the special adjudicator. If it appears as though it is material which was withheld from the special adjudicator, although available, the Immigration Appeal Tribunal would be unlikely to allow it to support an application for leave. Even where the applicant has not been represented, the Immigration Appeal Tribunal is entitled to an explanation of why the material was not made available to the special adjudicator so that an informed decision can be made as to whether or not the applicant should be permitted to use it to support his application for leave to appeal. But where the evidence is credible and sufficiently cogent to be capable of affecting the ultimate decision, the Immigration Appeal Tribunal should be slow to decline to permit it to support an application for leave."

17. In the present case the appellant points out that there is no explicit reference in the Tribunal's determination or in the witness statement subsequently submitted by the Tribunal chairman in the judicial review proceedings to any consideration of the credibility or significance of the fresh evidence. It is argued that nothing in the documents gives rise to any inference that the Tribunal had considered those additional matters or had even looked at the content of the fresh evidence. If so, then it must follow that it was unable to do the requisite balancing exercise, and that amounts to an error of law.
18. Miss Plimmer accepts that in judicial review the Court has a discretion to exercise when deciding whether to quash a decision or not, but she submits that this is not a case where one can say that no reasonable tribunal properly directing itself could decide to admit the evidence or could then decide to allow the appeal. The Tribunal, she emphasises, is an expert one and this Court should be slow to evaluate the credibility and significance of the fresh evidence when that is more appropriately to be done in asylum cases by the IAT.
19. On behalf of the Secretary of State, Miss Rahman emphasises that the Tribunal has a power to hold a preliminary hearing as in this case. She accepts the approach as a matter of law spelled out in the Aziz case but argues that the Tribunal did take account of the credibility and significance of the fresh evidence, although she concedes there is no explicit reference in the documents to it having done that. However, it is contended that this is to be assumed and that the Tribunal did not need to spell that out expressly in its determination.
20. Finally, the Secretary of State submits that no Tribunal looking at the fresh material could properly have come to any different conclusion and that in essence whether it had been admitted or not the result was a foregone one.
21. It seems to me that there is a judgment to be made reflecting all the relevant circumstances when the Tribunal is determining an application to submit fresh evidence. The approach spelled out by Latham J in Aziz identifies the main considerations for the exercise of the Tribunal's discretion, an exercise which requires, or may require, a balancing exercise to be carried out.
22. It is to be remembered that, even under the principles set out in Ladd v Marshall for the admission of fresh evidence in conventional litigation in the courts, there is a discretion to be exercised. Normally, all three conditions described by Lord Denning have to be met if such evidence is to be received, but there may be exceptional cases where the "wider interests of justice" mean that in its discretion an appellate body can depart from the strict application of those three conditions (see the remarks of Sir John Donaldson MR in ex parte Momin Ali [1984] 1 WLR 663 at 670 A-D).
23. Nonetheless, finality in litigation is very important for obvious reasons and a party is not entitled to hold back relevant evidence at first instance and then produce it on appeal as a second bite of the cherry. For my part, I agree with the approach indicated in Aziz. Of course, as Latham J said in that case, the Tribunal is entitled to look with scepticism at new material which could have been adduced before the special adjudicator and it is entitled to an explanation as to why it was not put before him. But what it cannot, in my judgment, properly do is to focus entirely on that aspect and to pay no attention to the credibility of the fresh evidence or to the impact which, if it is credible, its receipt might have on the issues in the case. The reason for that is that very important and apparently credible evidence might otherwise be excluded from consideration, evidence which indeed might in some cases produce a different result on the appeal, solely because of the lack of any proper explanation for its non-production at the original hearing. That could sometimes lead to injustice and this is why the balancing exercise is required. It may often come down in favour of its exclusion where there is no proper explanation for the failure to produce at the initial stage. That in itself provides no justification for departing from the balancing exercise.
24. In the present case there seems to be no indication that the Tribunal took into account the credibility or otherwise of the proffered fresh evidence, nor that it gave any consideration to its relevance and weight in respect of the substantive issues on the asylum claim. It did indicate that it regarded the allegation against the IAS as being without merit, and I can see that that had some bearing on the credibility of the appellant -- a central issue in the case. But that is not the same thing as having regard to the credibility of the fresh evidence. I find it impossible to infer from the terms of the Tribunal's decision or indeed from the chairman's subsequent witness statement that any consideration was given to credibility or significance of the fresh evidence itself. The witness statement deals solely with the explanation proffered for non-production at the original hearing before the special adjudicator, that is to say the allegation made against the IAS. That was not a proper approach for the Tribunal to adopt. The apparent credibility and significance of the fresh evidence are relevant considerations. In failing to have regard to them, the Tribunal, in my judgment, erred in law.
25. If so, then the matter should be remitted to it to reconsider the application to adduce fresh evidence on a proper basis unless one is satisfied that there is no real prospect of a Tribunal properly directing itself, coming to a different conclusion. I say that because these are judicial review proceedings and the Court does have a discretion when it comes to granting relief.
26. In the present case, it was right that little of the new evidence which the appellant sought to put before the Tribunal dealt with the crucial issues of whether the appellant had become involved with the Jehovah Witnesses in Cyprus and had been mistreated for this reason in Iran. The principal parts of it which did seek to do that were the letter from the appellant's sister in August 1999 (to which I have already referred) saying that government agents had come and said that he had become a non-Muslim and would be condemned to death if arrested; and secondly, the letter from Mr Georgiou in Limassol, Cyprus, saying that the appellant had been studying with Jehovah's Witnesses in Cyprus. Nothing in the second letter indicated Mr Georgiou had any official status, although the letter implies that he was himself involved with the Jehovah's Witnesses. Neither of the writers of these two documents was to be called as a witness who could then be cross-examined.
27. So the significance of these letters and the fresh evidence generally was limited and there could also be doubts as to their credibility. However, not without some hesitation, I have concluded that the Tribunal might regard them as sufficiently credible and significant as to outweigh the lack of an acceptable explanation for their earlier non-production. If so, it is not a foregone conclusion that the result of the substantive appeal would be the same, although the appellant's credibility may in the event not be enhanced by the allegation which he has made against the IAS.
28. For those reasons, it seems to me that the Tribunal should reconsider its decision not to admit the fresh evidence, taking all relevant matters into account, and then redetermine the appeal to it in the light of whatever decision it reaches on the admission of that evidence. For my part, I would allow the appeal and remit this matter to the Immigration Appeal Tribunal.
29. LORD JUSTICE MANTELL: I agree.
30. LORD JUSTICE PILL: I also agree. The appeal to the Immigration Appeal Tribunal was decided on a preliminary point. That is clear from the grant of permission, from the decision of the Tribunal itself and from the subsequent statement by the chairman of the Tribunal. Moreover, the preliminary point was narrowly defined. The chairman giving the judgment of the Tribunal referred to his own ruling that:

"The allegation against the Immigration Advisory Service be determined as a preliminary issue."

31. The rules entitle the Tribunal to take a preliminary point. Rule 23(4)(c) under the heading Conduct of Appeals, provides that directions given under this rule may in particular provide for a particular matter to be dealt with as a preliminary issue. That power in the Tribunal does not entitle the Tribunal to ignore the general law upon an application to adduce fresh evidence as established in Ladd v Marshall [1954] 1 WLR 1489 and applied in the present context by Latham J in R v Immigration Appeal Tribunal ex parte Aziz [1999] INLR 355.
32. The appeal to the Immigration Appeal Tribunal was based on an application to call fresh evidence and on no other ground. No criticism was made of the judgment of the special adjudicator. The grounds of appeal were:

"There were further written evidence and witness statements which the Immigration Advisory Service advised me not to produce which should have been produced by way of evidence. I have also obtained further documentary evidence and also wish to call two witnesses to my Appeal Hearing as I was not aware that I was entitled to call witnesses to my hearing. My witnesses will be Ali-Reza-Laksari... and Abbas-Sefidroh... who are both prepared to give evidence as to my fear of persecution in Iran and as to the risks to me if I return to Iran."

33. As emerges from those grounds of appeal the appellant was represented before the special adjudicator by a representative of the Immigration Advisory Service. The rules permit the admission of fresh evidence, rule 27(3)(a) providing that, in any proceedings on an appeal, the Tribunal may in its discretion receive, or decline to receive, further evidence of which notice has been given.
34. Like Lord Justice Keene, I can read the determination of the Tribunal only as a decision based solely, and I put it as broadly as I can, on the appellant's failure to give an explanation for his failure to adduce the evidence before the special adjudicator.
35. The conduct of the appellant has for present purposes been most unsatisfactory. In their decision the Tribunal made that finding and set out their reasons for doing so. I agree with them. It was only after the hearing by the special adjudicator, and very shortly afterwards, that statements now alleged to be relevant emerged. It is submitted by counsel for the applicant today that the Immigration Advisory Service were also at fault in the failure to advise in advance of the hearing suitable evidence before the special adjudicator. There is no evidence whatsoever in the papers that that is the case.
36. Second, the Tribunal gave a plain indication to the appellant and those advising him about their concern for the allegation which had been made on paper against the Immigration Advisory Service. That concern was expressed in their grant of permission to where it was said that a preliminary point must be considered. That concern must have been understood by the appellant and those advising him. It was a legitimate concern. The conduct of the Immigration Advisory Service, a body which gives considerable assistance to asylum-seekers, was being challenged.
37. Third, no explanation was given to the Tribunal for the failure to produce satisfactory evidence as to what had occurred before the special adjudicator or as to the allegations against the Immigration Advisory Service. It was only after the hearing before the Tribunal that a letter was written to the Immigration Advisory Service, action which ought to have been taken much sooner.
38. Fourth, when that course was taken, it was done so in a less than frank manner, as the Tribunal found.
39. There may be cases where the conduct of an appellant seeking to adduce fresh evidence is such an affront to the procedures of the Tribunal that it would be entitled to refuse to admit evidence without considering the potential merits of the proposed fresh evidence. Where legal procedures are being abused, the Tribunal, like any other Court, is entitled to act to prevent conduct inimical to the proper administration of justice.
40. In my judgment however, while close to that line, the conduct by and on behalf of the appellant at the material time does not cross it. I accept that the failure to give any explanation was a material factor for the Tribunal to consider. I also accept that the appellant's conduct in relation to the application and to the fresh evidence may also affect his general credibility and it may do so in this case. I agree with Scott Baker J when he stated:

"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 in 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."

41. Having said that, however, it is not, in my judgment, generally appropriate to consider the reason for the failure to adduce the evidence as a preliminary point. It should be considered, I agree with Lord Justice Keene, in accordance with the principles in Ladd v Marshall and in Aziz. The appellant was entitled to a consideration by the Tribunal of the proposed fresh evidence from the viewpoints of credibility and cogency as a part of the overall exercise in relation to its admissibility.
42. The failure to have adduced the evidence before the special adjudicator may be a decisive consideration but the appellant ought not to have been deprived of the more general consideration to which I have referred. It may be a weighty consideration but the Tribunal should not have put it into a separate compartment as a preliminary point. That is more so when what is put as a preliminary point is as narrow as that posed by the Tribunal in this case.
43. An appellant is entitled to have his application to adduce fresh evidence considered in accordance with the general law. He cannot be required, as a matter of law, first to prove an allegation against the Immigration Advisory Service. In my judgment there has been a procedural flaw in this case which requires that it be remitted to the Tribunal.
44. Miss Rahman for the respondent takes the further point that in the circumstances of this case there is no point in a remission because the Tribunal's decision on the admission of the proposed fresh evidence can only be decided in a way adverse to the appellant. I do not accept that submission. This Court is not generally a fact-finding Tribunal when exercising this jurisdiction, and I am not prepared to accede to a submission that had a correct test been applied there could only be a conclusion adverse to the appellant. These decisions of fact are for the Tribunal.
45. For the reasons I have given I agree that the appeal should be allowed.
(Appeal allowed; costs to follow the event; legal aid assessment)