COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
London, WC2A 2LL
B e f o r e :
LORD JUSTICE MANTELL
LORD JUSTICE CARNWATH
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr S Kovats and Mr P Patel (instructed by The Treasury Solicitor ) for the Secretary of State
Mr R Husain (instructed by TRP Solicitors) for the appellant "R"
Mr S Kovats and Mr P Patel (instructed by The Treasury Solicitor ) for the Secretary of State
Crown Copyright ©
Lord Justice Carnwath :
"What all that does for the integrity of our present system of judicial review… or for the appellate process and the reality of what remains of the principle of finality, is open to question. It may soon be time for Parliament and/or the Courts to take a more comprehensive and principled look at both forensic processes with a view to reshaping their structures and jurisdiction so that the form and substance of what the courts are doing bear some resemblance to each other."
As that passage recognises, there is an underlying tension in these cases between the "anxious scrutiny" appropriate to asylum cases (Bugdaycay v Secretary of State  AC 514, 531E) and the important, but sometimes conflicting, principle of finality. Given the number of recent Court of Appeal cases raising this point, we agree with Auld LJ that the apparent difference of approach requires early resolution.
"As the Adjudicator rightly found the appellant's claimed membership of the Muslim Brotherhood is not such as to render him liable to persecution and his activities if any have been at a very low level and have resulted in very little difficulty for him either in Pakistan or Bangladesh.
There is no evidence before the Tribunal or before the Adjudicator that the appellant had become involved in assisting those engaged in international conflict. She agreed (that) the core of the appellant's story had been consistent but in relation to other matters it was so lacking in credibility and the central core of his case lacking in any facts which led her to dismiss the appeal and find that he did not have a well-founded fear of persecution if returned to Egypt. There is no error of law in that finding. The Tribunal has regard to the guidelines in Borissov  Imm AR 526 and finds there is no reason to set aside the findings of the Adjudicator after taking into account the objective evidence in relation to the treatment of the Muslim Brotherhood in between the year 2000 and 2002 by the Egyptian authorities" (para 66-7).
(Borissov explained the principles applicable to appeals to the IAT on issues of fact; the approach was recently confirmed by this Court in Indrakhumar v Secretary of State  EWCA Civ 1677.)
"The Tribunal can only determine an appeal on the objective evidence before it at the time of the hearing and those reports were not before the Tribunal."
Generally the IAT considered that the grounds of appeal amounted to no more than a disagreement with its findings on the objective evidence before it.
"The appellant's objective evidence consisted of the US State Department Report on International Freedom for Afghanistan and Iraq, for the year 1999 (published in 2000). These documents are published every year, but the appellant chose to rely on documents, which predated the removal of the Taliban and the new era of religious freedom in Afghanistan. We are unable to place any weight on either of these reports today.
Mr Blundell for the respondent said that he had not filed the CIPU Country Report for October 2002 on Afghanistan, as it now does not mention apostasy at all. Neither party produced any current US State Department Report or material other than that mentioned."
"6.44. In a report dated July 2002 UNCHR Geneva reported that a serious risk of persecution continues to exist for Afghans suspected, or accused, of having converted from Islam to Christianity, or Judaism. Conversion is punishable by death throughout Afghanistan, however at the time the report was written no such harsh punishment was reported."
R also relied on an expert report by a Dr Gopal, dated 3rd September 2003, supporting R's case as to the risk to converts in Afghanistan.
"The grounds of appeal contend that the Tribunal should have taken into account the April 2003 CIPU country report which the Home Office presenting officer did not present at the hearing (nor did the appellant), despite the Tribunal having signed its determination on the day of the hearing. There was a delay of almost four months in administrative promulgation of the determination, during which time it is alleged that the Tribunal should have reviewed the determination of its own motion. That is not a proper ground of appeal especially as the April 2003 CIPU country report was not available for tribunals in April but in May 2003…
It is not in the interests of certainty that where there are administrative delays after the Court or Tribunal has signed its decision for promulgation, it should be expected to record all pending decisions on the issue of new Home Office evidence such as a CIPU country report. The Tribunal decides the appeal on the evidence of submissions and other documents actually before it at the hearing (or after, if leave is given for post-hearing service of additional relevant documents)."
"the jurisprudential basis of its power to overturn appeal decisions of the IAT on the basis of material not before the IAT".
"One of the aims of the Immigration and Asylum Act 1999 is to put an end to the possibilities of sequential appeals under the Immigration Act 1971 and Asylum and Immigration Appeals Act 1993. Under those Acts it was possible for an applicant to enjoy an appeal under the rules (eg a student appeal), then a deportation appeal for overstaying, and finally an appeal against a refusal to revoke a deportation order, on asylum grounds… The one-stop procedure is the main mechanism by which the Government seeks to ensure that all possible grounds of appeal, including asylum and human rights or discrimination grounds, by the principal applicant, and all members of the family, are dealt with together. …."
"to secure the just, timely and effective disposal of appeals and applications in the interests of the parties to the proceedings and in the wider public interest." (rule 4)
Part 4 governs the procedure for applications for permission to appeal from the IAT. Rule 26, headed "Scope of this Part", provides:
"This Part applies to applications to the Tribunal for permission to appeal on a point of law to the Court of Appeal …. from a determination of an appeal by the Tribunal."
Rules 27 to 29 deal with the making of the application for permission. Rule 30 is headed "Determining the Application". It provides that the application must be determined by a legally qualified member of the Tribunal without a hearing, and (by paragraph (2)) that the Tribunal may (a) grant permission to appeal; (b) refuse permission to appeal; or (c) subject to paragraph (3), "set aside the Tribunal's determination and direct that the appeal to the Tribunal be re-heard." Paragraph (3) provides that an order under (c) may only be made by the President or Deputy President of the Tribunal, and after giving every party an opportunity to make representations. There is an issue, to which we shall return, as to the limits if any on the scope of the power to direct a re-hearing.
i) The discretion is subject to any statutory limitations in the scope of the appeal (see CPR 52.1(4)). Thus, where the appeal is limited to questions of law, the power to admit new evidence cannot be used to turn it into an appeal on issues of pure fact (cp Green v Minster of Housing  2 QB 606, 615, under the old rules).
ii) New evidence will normally be admitted only in accordance with "Ladd v Marshall principles" (see Ladd v Marshall  1 WLR 1489), applied with some additional flexibility under the CPR (see Hertfordshire Investments Ltd v Bubb  1 WLR 2318, 2325; White Book para 52.11.2). The Ladd v Marshall principles are, in summary: first, that the fresh evidence could not have been obtained with reasonable diligence for use at the trial; secondly, that if given, it probably would have had an important influence on the result; and, thirdly, that it is apparently credible although not necessarily incontrovertible. As a general rule, the fact that the failure to adduce the evidence was that of the party's legal advisers provides no excuse: see Al-Mehdawi v Home Secretary  1AC 876.
We will need to consider below to what extent those principles are further relaxed in asylum cases.
"…sufficiently different from the earlier claim that there is a realistic prospect that the conditions (for grant of asylum) will be satisfied."
In reaching that decision:
"the Secretary of State will disregard any material which "(i) is not significant; or (ii) is not credible; or (iii) was available to the applicant at the time when the previous application was refused or when any appeal was determined."
(To make sense, the reference in that passage to "any appeal" must, we think, be to an appeal in which the new material would have been admissible.)
Although the decision on a new application is potentially subject to the ordinary appeal machinery, that right is excluded if the Secretary of State certifies that the ground of appeal was or would have been available in relation to a previous decision: 2002 Act s 96(2).
i) 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")?
ii) 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?
iii) What is the relevance of such evidence to an appeal limited to questions of law?
iv) If it is relevant, what principles should the Court of Appeal apply in exercising its discretion to admit it?
Tribunal's power to direct a re-hearing
"Mr McDowall's report was submitted to the Tribunal in the present case at the time when it was considering the application for permission to appeal to this court. The decision refusing leave to appeal did not allude to the report. Rule 27(5) of the (2000 Rules), in operation at the material time, gave the Tribunal power, instead of granting leave to appeal, to set aside the determination appealed against and direct that the appeal to the Tribunal be re-heard. Mr Saini accepts that, in the exceptional circumstances of this case, it was an error of law not to take account of Mr McDowall's report with a view to directing a re-hearing. Upon this concession, I conclude that the court has jurisdiction to take the obviously sensible course." (para 29)
"It is to nobody's advantage to find an ostensibly comprehensive background appraisal on which decision-makers then rely in judging individual claims has been arrived at in ignorance of material information and has to be undone." ( EWCA Civ 1489 para 40)
Error of fact in administrative law.
"This case is no more than an illustration of the point that issues of 'law' in this context are not narrowly understood. The Court can correct 'all kinds of error of law, including errors which might otherwise be the subject of judicial review proceedings' (R v IRC ex p Preston  1 AC 835, 862 per Lord Templeman; see also De Smith, Woolf and Jowell, Judicial Review 5th Ed para 15-076). Thus, for example, a material breach of the rules of natural justice will be treated as an error of law. Furthermore, judicial review (and therefore an appeal on law) may in appropriate cases be available where the decision is reached 'upon an incorrect basis of fact', due to misunderstanding or ignorance (see R (Alconbury Ltd) v Secretary of State  2 WLR 1389, 2001 UKHL 23, para 53, per Lord Slynn). A failure of reasoning may not in itself establish an error of law, but it may 'indicate that the tribunal had never properly considered the matter…and that the proper thought processes have not been gone through' (Crake v Supplementary Benefits Commission  1 All ER 498. 508)."
In the Guinness case the issue was whether the Tribunal had misunderstood some of the complicated expert evidence in front of it, resulting in a "double counting" in the valuation. The Court accepted that that was a proper ground of challenge on an appeal limited to questions of law, but held that it was not made out on the facts.
Appeal on law, and judicial review
"Appeals from the General Commissioners or the Special Commissioners lie, but only on questions of law, to the High Court by means of a case stated and the High Court can then correct all kinds of errors of law including error which might otherwise be the subject of judicial review proceedings…"
Incorrect basis of fact
"…having been told that she should not ask for police statements as they would be produced by the police, it would not be surprising that she assumed that if there was a report from the police doctor, it would be made available with the police report" (p 343F).
"Your Lordships have been asked to say that there is jurisdiction to quash the Board's decision because that decision was reached on a material error of fact. Reference has been made to "Administrative Law" (Wade and Forsyth (7th edition)) in which it is said at pp. 316-318 that:
'Mere factual mistake has become a ground of judicial review, described as 'misunderstanding or ignorance of an established and relevant fact,' [Secretary of State for Education v Tameside MBC  AC 1014, 1030] or acting 'upon an incorrect basis of fact.'. . . This ground of review has long been familiar in French law and it has been adopted by statute in Australia. It is no less needed in this country, since decisions based upon wrong fact are a cause of injustice which the courts should be able to remedy. If a 'wrong factual basis' doctrine should become established, it would apparently be a new branch of the ultra vires doctrine, analogous to finding facts based upon no evidence or acting upon a misapprehension of law.'
De Smith, Woolf and Jowell "Judicial Review of Administrative Action" 5th ed., at p. 288
'The taking into account of a mistaken fact can just as easily be absorbed into a traditional legal ground of review by referring to the taking into account of an irrelevant consideration, or the failure to provide reasons that are adequate or intelligible, or the failure to base the decision on any evidence. In this limited context material error of fact has always been a recognised ground for judicial intervention.'
For my part, I would accept that there is jurisdiction to quash on that ground in this case…" (p 344G-345E).
"It does not seem to me to be necessary to find that anyone was at fault in order to arrive at this result. It is sufficient if objectively there is unfairness. Thus I would accept that it is in the ordinary way for the applicant to produce the necessary evidence. There is no onus on the Board to go out to look for evidence, nor does the Board have a duty to adjourn the case for further enquiries if the applicant does not ask for one…. Nor is it necessarily the duty of the police to go out to look for evidence on a particular matter."
Nonetheless, he considered that the police "do have a special position in these cases", and he noted the evidence that the Board is "very dependent on the assistance of and the co-operation of the police who have investigated these alleged crimes of violence". He said:
"In the present case, the police and the Board knew that A had been taken by the police to see a Police Doctor. It was not sufficient for the police officer simply to give her oral statement without further inquiry when it was obvious that the doctor was likely to have made notes and probably a written report." (p 345F- 346B).
"I consider therefore, on the special facts of this case and in the light of the importance of the role of the police in co-operating with the Board in the obtaining of the evidence, that there was unfairness in the failure to put the doctor's evidence before the board and if necessary to grant an adjournment for that purpose. I do not think it possible to say here that justice was done or seen to be done." (p347B).
"But a review of the merits of the decision-making process is fundamental to the Court's jurisdiction. The power of review may even extend to a decision on a question of fact. As long ago as 1955 your Lordships' House, in Edwards v Bairstow  AC 14, a case in which an appeal (from General Commissioners of Income Tax) could only be brought on a question of law, upheld the right and duty of the appellate court to reverse a finding of fact which had no justifiable basis". (para 61).
He saw Edwards v Bairstow as an illustration of "the generosity" with which the Courts have interpreted the power to review questions of law, corresponding to "a similarly broad and generous approach" in the development of judicial review (para 62). Lord Clyde referred to Lord Slynn's statement on this issue in CICB, commenting that it was:
"… sufficient to note… the extent to which the factual areas of a decision may be penetrated by a review of the account taken by a decision-maker of facts which are irrelevant or even mistaken." (para 169)
"A cautious extension of the power of the court on judicial review to reopen the facts might now be appropriate. This would need to be limited to cases where the error is manifest (not requiring a prolonged or heavily contested inquiry), is decisive (on which the decision turned) and not susceptible of correction by alternative means…" (op cit p 243).
"The heading of this section of this judgment is, deliberately, the same as that of an important section, paragraphs 5-091 and following, in the 5th edition of De Smith, Woolf and Jowell, Judicial Review of Administrative Action. That section shows the difficult and elusive nature of this question, viewed as a general issue. However, if our present case is properly analysed the dilemma does not arise. While there may, possibly, be special considerations that apply in the more formalised area of planning enquiries, as suggested by De Smith, paragraph 5-092 at fn75; and while the duty of "anxious scrutiny" imposed in asylum cases by R v SSHD ex p Bugdaycay  AC 514 renders those cases an uncertain guide for other areas of public law; nonetheless De Smith's analysis shows that there is still no general right to challenge the decision of a public body on an issue of fact alone. The law in this connexion continues, in our respectful view, to be as stated for a unanimous House of Lords by Lord Brightman in Pulhofer v Hillingdon LBC  AC 484 at p518E:
59. It is the duty of the court to leave the decision [as to the existence of a fact] to the public body to whom Parliament has entrusted the decision-making power, save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely."
He adopted the observations of Watkins LJ (sitting with Mann LJ) in R v London Residuary Body (24 July 1987, unreported, but quoted in the Judicial Review Handbook p 730):
"Of course, a mistake of fact can vitiate a decision as where the fact is a condition precedent to an exercise of jurisdiction, or where the fact is the only evidential basis for a decision or where the fact was as to a matter which expressly or impliedly had to be taken into account. Outside those categories we do not accept that a decision can be flawed in this court, which is not an appellate tribunal, upon the ground of a mistake of fact."
"…I would add a further situation to those specified by him: misunderstanding or ignorance of an established and relevant fact. Let me give two examples. The fact may be either physical, something which existed or occurred or did not, or it may be mental, an opinion. Suppose that, contrary to the minister's belief, it was the fact that there was in the area of the local education authority adequate school accommodation for the pupils to be educated, and the minister acted under the section believing that there was not. If it were plainly established that the minister was mistaken, I do not think that he could substantiate the lawfulness of his direction under this section. Now, more closely to the facts of this case, take a matter of expert professional opinion. Suppose that, contrary to the understanding of the minister, there does in fact exist a respectable body of professional or expert opinion to the effect that the selection procedures for school entry proposed are adequate and acceptable. If that body of opinion be proved to exist, and if that body of opinion proves to be available both to the local education authority and to the minister, then again I would have thought it quite impossible for the minister to invoke his powers under section 68." (p 1030E-G)
"To jeopardise validity on the ground of mistake of fact the fact must be an established one or an established and recognised opinion; and… it cannot be said to be a mistake to adopt one of two differing points of view of the facts, each of which may be reasonably held." (New Zealand Fishing Industry Association Inc v Minister of Agriculture  1NZLR 544, 552)
There was however no majority on this issue in the New Zealand Court of Appeal (see Jones op cit p 514-5.)
Mistake of law in practice
i) An inspector's mistaken understanding that land had never been part of the Green Belt: Hollis v Secretary of State (1984) 47 P&CR 351 (Glidewell J).
ii) An inspector's mistaken view that a building extension would not obstruct a particular aspect: Jagendorf v Secretary of State  JPL 771 (David Widdicombe QC).
iii) The minister's misinterpretation of the inspector's conclusions on evidence relating to viability of restoration of a building: Barnet Meeting Room Trust v Secretary of State 13.12.89 unreported (Sir Graham Eyre QC).
"The taking into account of a mistaken fact can just as easily be absorbed into a traditional legal ground of review by referring to the taking into account of an irrelevant consideration or the failure to provide reasons that are adequate or intelligible or the failure to base the decision upon any evidence." (para 5/-094).
i) Failure to take account of a material consideration is only a ground for setting aside a decision, if the statute expressly or impliedly requires it to be taken into account (Re Findlay  AC 318, 333-4, per Lord Scarman). That may be an accurate way of characterising some mistakes; for example, a mistake about the development plan allocation, where there is a specific statutory requirement to take the development plan into account (as in Hollis). But it is difficult to give such status to other mistakes which cause unfairness; for example whether a building can be seen (Jagendorff), or whether the authority has carried out a particular form of study (Simplex).
ii) Reasons are no less "adequate and intelligible", because they reveal that the decision-maker fell into error; indeed that is one of the purposes of requiring reasons.
iii) Finally, it may impossible, or at least artificial, to say that there was a failure to base the decision on "any evidence", or even that it had "no justifiable basis" (in the words of Lord Nolan: see above). In most of these cases there is some evidential basis for the decision, even if part of the reasoning is flawed by mistake or misunderstanding.
i) An erroneous impression created by a mistake as to, or ignorance of, a relevant fact (the availability of reliable evidence to support her case);
ii) The fact was "established", in the sense that, if attention had been drawn to the point, the correct position could have been shown by objective and uncontentious evidence;
iii) The claimant could not fairly be held responsible for the error;
iv) Although there was no duty on the Board itself, or the police, to do the claimant's work of proving her case, all the participants had a shared interest in co-operating to achieve the correct result;
v) The mistaken impression played a material part in the reasoning.
(We have also taken account of the judgment of Maurice Kay J in R (Cindo) v Secretary of State  EWHC 246 para 8-11, drawn to our attention since the hearing by Mr Gill, in which some of these issues were discussed.)
"This Court… is confined to looking to see whether the Tribunal erred in some manner in relation to the facts and material which were before the Tribunal. It is obvious that material not put to the Tribunal could not be used to identify an error of law on the part of the Tribunal."
Peter Gibson LJ agreed with that approach:
"In my judgment (Counsel's) objection was entirely right. It is inappropriate for new material to be presented to this Court which could not in any way have affected the decision of the Tribunal below. It is of course open to an applicant to present such new material to the Secretary of State once the appellate process relating to the earlier decision has been exhausted; and I do not doubt that the Secretary of State would take into account material such as that from Dr Manley, as an expert in the relevant field." (para 43- 44).
Although the other members of the Court did not in terms adopt this reasoning, we think they must be taken as having done so, since the leading judgment of Buxton LJ was based entirely on material available to the IAT, and Dr Manley's report played no part in it. (As we have said, the same approach was very recently taken by this Court, albeit without discussion of the authorities, in AE and FE v Secretary of State  EWCA Civ 1032 para 9.)
"The situation has changed since 1995 when the decisions were taken. So it is necessary first to mention the situation at that time and then to examine the situation at the present stage. Although we are concerned primarily with the reasonableness of the decisions at the time when they were taken we cannot ignore these developments. We are dealing in this case with concerns which have been expressed about human rights and the risks to the respondent's life and liberty. If the expectations which the Secretary of State had when he took his decisions have not been borne out by events or are at risk of not being satisfied by the date of the respondent's proposed return to Hong Kong, it would be your Lordships' duty to set aside the decisions so that the matter may be reconsidered in the light of the changed circumstances." (p 860-1)
The asylum cases
"The position is as follows. The guiding principle is that the Secretary of State has undertaken not to send someone from here to a country where there are substantial grounds for believing that he would be at real risk of facing treatment proscribed by Article 3. If an applicant for permission to move for judicial review claims that the Secretary of State's decision is vitiated by some form of illegality he will file evidence to that effect. The Court will not shut out evidence which is relevant to the issues. Indeed, it may order disclosure of evidence necessary for disposing fairly of the application. The evidence is not strictly limited to evidence which was or should have been before the Secretary of State at the time of the decision. This was the unanimous view of the House of Lords (in Launder). ( 1 All ER at p 735f-h)
He noted that the Secretary of State might seek to adduce evidence to explain and justify his original decision, or to show that he had considered the evidence filed by the applicant and made a new, second, decision in the light of that evidence. If the second decision were then subject to challenge, it would generally be convenient for the applicant to amend his application to substitute the second decision as that subject to challenge. Schiemann LJ went on to consider how the court should deal with new evidence in such cases (p 735-6).
"The fact is however that these principles never did apply strictly in public law and judicial review. As Sir John Donaldson MR said in R v Secretary of State for the Home Department ex parte Ali  1 WLR 663, 673:
'... the decision in Ladd v Marshall  1 WLR 1489 has as such no place in that context,'
although he then added:
'However, I think that the principles which underlie issue estoppel and the decision in Ladd v Marshall, namely that there must be finality in litigation, are applicable subject always to the discretion of the Court to depart from them if the wider interests of justice so require.'" ( INLR 283, 289)
"This fresh evidence was clearly available and should have been placed before Webster J. It is not the function of this court, as an appellate court, to retry an originating application on different and better evidence. We are concerned to decide whether the trial judge's decision was right on the materials available to him, unless the new evidence could not have been made available to him by the exercise of reasonable diligence or there is some other exceptional circumstance which justifies is admission and consideration by the court." (p 670E)
Fox LJ also accepted that there was a "wider discretion" to admit new evidence than in ordinary civil litigation, but agreed with the result (p 673G-H); Stephen Brown LJ said that Ladd v Marshall principles should apply (p 674A).
"On this issue, I would emphasise that it has been held a number of times that the principles enunciated in Ladd v Marshall  1 WLR 1489, including that which requires the fresh evidence to be evidence which could not have been obtained with reasonable diligence for use at trial, do not apply with the same strictness in public law cases. In Turgut v Secretary of State for the Home Department  ImmAR 306, an Article 3 case, it was emphasised by Schiemann LJ that this court will not shut out relevant evidence in such cases. The matter was dealt with fully in the unanimous decision of this court in Haile v Immigration Appeal Tribunal  ImmAR 170, where it was held that the proper approach was to consider the wider interests of justice. That must be right both in asylum cases and in those where Articles 2 or 3 of the ECHR are invoked. After all, one has to consider the context in which these cases are brought. As Lord Bridge of Harwich said in the oft-cited case of Bugdaycay v Secretary of State for the Home Department  1 AC 514 at 531 E:
'The most fundamental of all human rights is the individual's right to life and when an administrative decision under challenge is said to be one which may put the applicant's life at risk, the basis of the decision must surely call for the most anxious scrutiny.'
As a matter of principle it would be difficult to achieve such scrutiny whilst closing one's eyes to relevant evidence.
21. In the present case this further evidence is credible and it is potentially significant, going much further than the material which the IAT had. I for my part am quite satisfied that the wider interests of justice do require the fresh evidence to be considered by this court. I would admit it and I proceed on that basis."
At the end of the judgment, he rejected the proposal for the Secretary of State that, if the Court found the new evidence persuasive, it should remit this case to the IAT as the body with the experience to assess it. He said:
"33…. I for my part would not do so. It seems to me that the evidence now before us admits of only one sensible interpretation and this court is fully able to arrive at a substantive conclusion on it.
34. I am persuaded that the removal directions given by the Secretary of State would involve a breach of the appellant's human rights. For that reason and on that specific basis, I would allow this appeal."
"Whatever the precise limits of this Court's power to admit new evidence in such cases as this, I have no doubt that we should do so where there is material which appears to show that the factual basis on which the Tribunal proceeded was, through no fault of its own, simply wrong."
Ward LJ agreed with both judgments.
i) Not all (or even most) Court of Appeal decisions in this area should be seen as laying down propositions of law; the decisions in this area are unusually fact-sensitive;
ii) It provides another good example of the need for a residual ground of review for unfairness arising from a simple mistake of fact;
iii) It illustrates the intrinsic difficulty in many asylum cases of obtaining reliable evidence of the facts giving rise to the fear of persecution, and the need for some flexibility in the application of Ladd v Marshall principles.
i) An appeal to this Court on a question of law is confined to reviewing a particular decision of the Tribunal, and does not encompass a wider power to review the subsequent conduct of the Secretary of State;
ii) Such an appeal may be made on the basis of unfairness resulting from "misunderstanding or ignorance of an established and relevant fact" (as explained by Lord Slynn in CICB and Alconbury);
iii) The admission of new evidence on such an appeal is subject to Ladd v Marshall principles, which may be departed from in exceptional circumstances where the interests of justice require.
i) The Tribunal remained seized of the appeal, and therefore able to take account of new evidence, up until the time when the decision was formally notified to the parties;
ii) Following the decision, when it was considering the applications for leave to appeal to this Court, it had a discretion to direct a re-hearing; this power was not dependent on its finding an arguable error of law in its original decision.
iii) However, in exercising such discretion, the principle of finality would be important. To justify reopening the case, the IAT would normally need to be satisfied that there was a risk of serious injustice, because of something which had gone wrong at the hearing, or some important evidence which had been overlooked; and in considering whether to admit new evidence, it should be guided by Ladd v Marshall principles, subject to any exceptional factors.
We should emphasise that this analysis is based on the regime applicable to this case, under which the right of appeal to the IAT was not confined to issues of law (before the change made by the 2002 Act, s 101: see para 17 above).
i) E's case The evidence (in the form of new reports from Human Rights Watch and the World Organisation against Torture) is credible. It throws considerable doubt on the IAT's understanding that the persecution of members of the Muslim Brotherhood was solely related to the 2000 elections. On the other hand, it does little to undermine the IAT's conclusion as to the lack of risk to this particular appellant, in view of his limited connection with Egypt, and the "very low level" of his activities if any.
ii) R's case The 2003 CIPU report is obviously credible. It shows that, at the time of the IAT hearing, there was (in the form of the July 2002 UNCHR report) objective evidence of serious theoretical risk to apostates, although not of specific examples. That evidence is particularly significant because it directly contradicts the impression given (in good faith) by the Home Office, based on the 2002 CIPU report, that apostasy had ceased to be an issue. On the other hand, there is no indication why at the hearing the appellant himself chose to rely solely on evidence which predated the removal of the Taliban. The evidence of Dr Gopal provides some support for the risk to apostates, but again it is unsupported by specific examples. No reason is given for it not having been made available before the hearing.