England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM IMMIGRATION APPEAL TRIBUNAL
AS/51608/2003

		Royal Courts of Justice Strand, London, WC2A 2LL
		2 November 2005

Lord Justice Brooke :

1. This is an appeal by the Secretary of State against a decision by the Immigration Appeal Tribunal ("IAT") on 22nd November 2004 whereby it dismissed his appeal from a decision of an adjudicator on 17th November 2003. The adjudicator had allowed Mrs Shaheen's appeal against a decision by the Secretary of State on 12th August 2003 when he had refused her appeal for asylum.
2. Mrs Shaheen is a Pakistani national. The adjudicator found that she married her husband in Pakistan in September 2001, and that she came with him to live in this country between March and July 2002. She had no complaints about his behaviour while they were here, but she said that he took to beating her regularly when they returned to Pakistan, and that his mother encouraged him to treat her in this way. On one occasion (in August 2002) he attacked her and pushed her down the stairs when she was pregnant, and this caused her to miscarry.
3. She said she stayed in Pakistan for ten months before she returned to this country in May 2003. She said that she could not go to the police in Pakistan because she knew they would give her no help even though her husband threatened to kill her. She was also afraid that if she reported matters to them, her husband would find out and treat her much worse. She eventually became afraid that she would be killed if she stayed with him in Pakistan, and she told the adjudicator that if she had to return there her life would be in danger in her husband's hands.
4. The adjudicator was satisfied that her testimony was plausible, and he believed her account of the history of her marriage. He rejected the possibility of re-location elsewhere in Pakistan, and said that he did not consider that she would receive a sufficiency of protection from the authorities in Pakistan. He therefore upheld her claim to asylum and also made a finding in her favour on human rights grounds.
5. Miss Giovannetti, who appeared for the Secretary of State, told us that he did not challenge the adjudicator's findings on the evidence that was before him. His appeal both to the IAT and to this court has been pursued on the basis of information that came into his possession following the conclusion of the hearing before the adjudicator on 3rd November 2003.
6. On 15th November 2003 an immigration officer came and searched the house where Mrs Shaheen was living, and during the course of the search he found that her husband was also there. Her husband was arrested as a suspected illegal entrant, and when he was interviewed under caution, he said that he had not left this country since arriving here in February 2002. He stated that his wife's assertion that he had abused her and beaten her up in Pakistan in August 2002 was a complete fabrication. He said that they had lived together in this country throughout the period that elapsed between her application for asylum (in May 2003) and the hearing of her appeal (in November 2003). He had lived on his own in England, however, for two or three months the previous year.
7. On 2nd December 2003 the Secretary of State recited these facts in his Notice of Appeal to the IAT. His grounds of appeal contain the following assertions:

"[T]he appellant deliberately withheld the true facts of her domestic situation and misrepresented the correct details in respect of her separation from her husband... It is ... submitted that the adjudicator's decision was based on a number of false assumptions, and had the true facts of the Appellant's circumstances been known, the determination would have differed materially."

8. In granting permission to appeal on 12th January 2004, the IAT said:

"The ground is clearly arguable. A copy of the fresh evidence accompanying the grounds should be admitted into evidence subject to identification by a statement of truth from the Immigration Officer. It is arguable that the Adjudicator's credibility findings were in error and that his conclusions were wrong in law."

9. On 2nd February 2004 this court delivered its judgment in E and R v SSHD [2004] EWCA Civ 49; [2004] QB 1044, to which I will return in due course. The hearing of the appeal by the IAT was fixed for 22nd November 2004. On 9th November 2004 Mrs Shaheen and her brother Mohammed Sheraz both made witness statements in which they confirmed the truth of the story Mrs Shaheen had told the adjudicator. They said that Mr Shaheen's assertions to the contrary were not true. Mrs Shaheen said that her husband had found out that she had given birth to a son in October 2003, and that because he wanted to see his son he had visited her home both on the day when the immigration officer called and also three days earlier.
10. The Secretary of State was represented by a Home Office presenting officer at the hearing before the IAT. In a brief determination the IAT recorded that the Secretary of State had placed reliance on the decision of this court in E and R. The IAT made the following observations or findings:

i) That the mistake of fact alleged by the Secretary of State was that Mr and Mrs Shaheen were in the United Kingdom at a time when the alleged abuse took place, and not in Pakistan;

ii) That the new evidence on which the Home Office relied could not be said to be uncontentious and objectively verifiable. On the contrary, it was highly contentious;

iii) That the Secretary of State had not been responsible for the mistake;

iv) That although the evidence of Mr Shaheen might have made a difference if it had been accepted, the IAT could not be confident that it would have, since it did not necessarily follow that even if the adjudicator had rejected the evidence concerning the location in which the parties resided at a particular time, he would have rejected the evidence of other ill-treatment.

11. For these reasons the IAT declined to receive the further evidence, and because no other grounds of appeal were argued the Secretary of State's appeal was dismissed.
12. This determination was notified to the parties on 22nd December 2004. On 14th January 2005 grounds were filed by the Secretary of State with the IAT in support of an application for permission to appeal to this court. It was said that before the IAT it had been submitted that the evidence from the Immigration Service established that the adjudicator had been "potentially misled". The Secretary of State sought to argue, relying in part on the recent decision of this court in Cabo Verde v SSHD [2004] EWCA Civ 1726, that:

i) the IAT had applied too high a standard and that the evidence the Secretary of State had presented threw "considerable doubt" (see E and R, para 95(i)) on Mrs Shaheen's assertion that she had fled from her husband in Pakistan;

ii) the IAT had erred in law in its approach to the "materiality test" when it said that it could not be confident that Mr Shaheen's evidence would have made a material difference.

13. On this occasion, too, the Secretary of State sought to adduce further evidence, this time in the form of a statement by an officer in the medical record services at Birmingham Heartlands Hospital to the effect that Mrs Shaheen (whose full name and address and date of birth were correctly recorded) attended the accident and emergency department of that hospital at 3.10 p.m. on 31st August 2002, and attended a clinic appointment there four days later, when she also attended a ward (although she was not admitted). This information was provided following a request made by the Home Office pursuant to section 29(3) of the Data Protection Act 1998.
14. On 3rd April 2005 the IAT granted permission to appeal to this court, making the comment that it was reasonably arguable that its determination in the present case was contrary to the reasoning of the Court of Appeal in the Cabo Verde case. On 22nd September 2005 Mrs Shaheen made a further witness statement. She again attested to the truth of what she had told the adjudicator. She produced what she said was an original passport which showed her arrival in England on 30th March 2002 and her arrival in Pakistan on 7th July 2002. She said she had used a false passport when she returned here in May 2003. She said that she did not attend the Birmingham Heartlands Hospital on 31st August or 4th September 2002, and she did not know who did.
15. The resolution of this appeal requires us to address two main questions:

i) Did the IAT commit an error of law in its consideration of the issue(s) of law that formed the agenda for the Secretary of State's appeal to that Tribunal?

ii) If it did, then should we admit the new evidence from the Birmingham Heartlands Hospital, and what are the principles of law we should apply when determining this appeal?

16. I use the word "agenda", because it is now clearly established that the IAT had no jurisdiction to allow an appeal on the grounds of an error of law which was not ventilated in the grounds of appeal (see B v SSHD [2005] EWCA Civ 61; Miftari v SSHD [2005] EWCA Civ 481; R (Iran) v SSHD [2005] EWCA Civ 982 at [54] – [58]).
17. In R (Iran) I described the effect of the judgment of this court in E and R v SSHD in these terms (at paras 29-30):

"29. In E and R this court was concerned to provide a principled explanation of the reasons why a court whose jurisdiction is limited to the correction of errors of law is occasionally able to intervene, when fairness demands it, when a minister or an inferior body or tribunal has taken a decision on the basis of a foundation of fact which was demonstrably wrong. Carnwath LJ gave at least eight examples in his review of the case law. Contrary to the basis on which the original decision was reached:

(i) There was in fact contemporary documentary evidence of the injuries sustained by a claimant for compensation from the Criminal Injuries Compensation Board (para 45);

(ii) There was in fact, contrary to a minister's belief, adequate school accommodation in a local education authority's area for the pupils to be educated (para 54);

(iii) The land in question had in fact once been part of the Green Belt (para 58);

(iv) The proposed building extension would in fact obstruct a particular aspect (para 58);

(v) The restructuring of a building was in fact viable (para 58);

(vi) A study by a local council did not in fact relate to the inclusion of a particular site within the Green Belt (para 59);

(vii) A critical witness was in fact a member of a totally different political party in Ethiopia to that which he was believed to support (paras 60, 78-79);

(viii) The appellant had in fact been tried and convicted in his absence in his home country and sentenced to ten years' imprisonment, a matter which cast an entirely new light on the risks he faced if he were returned there (paras 60, 87).

30. At para 64 Carnwath LJ said that there was a common feature of all these cases, even where the procedure was adversarial, in that the Secretary of State or the particular statutory authority had a shared interest with both the particular appellant and with any tribunal or other decision-maker that might be involved in the case in ensuring that decisions were taken on the best information and on the correct factual basis. At para 66 he identified asylum law as representing a statutory context in which the parties shared an interest in co-operating to achieve a correct result. He went on to suggest that the ordinary requirements for a finding of unfairness which amounted to an error of law were that:

(i) there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter;

(ii) it must be possible to categorise the relevant fact or evidence as "established" in the sense that it was uncontentious and objectively verifiable;

(iii) the appellant (or his advisers) must not have been responsible for the mistake;

(iv) the mistake must have played a material (not necessarily decisive) part in the tribunal's reasoning.

He made it clear that he was not seeking to lay down a precise code."

18. In cases (ii)-(viii) above the mistake that was identified was a mistake as to an existing fact which was uncontentious and objectively verifiable. Case (i) is rather different. Carnwath LJ appears to have drawn it from Lord Slynn's dictum in R v Criminal Injuries Compensation Board ex p A [1999] 2 AC 330, an appeal that was in fact allowed by the House of Lords on different grounds (see Carnwath LJ's analysis of the decision in his judgment in E and R at paras 45-48). In that case it was not an uncontentious and objectively verifiable fact that the appellant had in fact been subjected to rape and buggery. What was now uncontentious and objectively verifiable was that the board had been mistaken when it had formed the impression that there was nothing in the medical evidence to support her case, whereas in fact there was a report by a police doctor whose findings were consistent with her story. This is why the first of Carnwath LJ's requirements was phrased in these terms:

"[T]here must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter." (Emphasis added)

The board did not believe that any medical evidence existed which tended to corroborate the appellant's story. It turned out, through no fault of theirs, that they were wrong in that belief.

19. Cabo Verde v SSHD [2004] EWCA Civ 1726 was a rather different case. Although there appeared to be strong evidence that Mr Cabo Verde was committing crimes and/or was in prison in Portugal during the period when he had induced the IAT to believe he was being treated very badly in detention in Angola, he denied what was being said against him, so that his precise location at the relevant time could not have been categorised as "uncontentious and objectively verifiable" at the time the Secretary of State's appeal was being heard in this court. In R (Iran) this court analysed that decision at paras 49-50, saying (at para 50):

"50. Buxton LJ said that this evidence showed that there was now material which suggested that the factual basis on which the IAT had proceeded was, through no fault of theirs, simply wrong, and that fairness, i.e. a proper and rational immigration policy, clearly demanded that all the facts of the matter should be before the IAT. Applying E and R, he said that it was plainly established as a fact that relevant evidence was not before the IAT, so that the four criteria for identifying a mistake of fact resulting in unfairness (see para 30 above) were all satisfied. The mistake of fact was a mistake as to the existence of evidence which put in issue the asylum-seeker's claim to have been in Angola at the relevant time. The mistake was "established" within the second of the conditions in E and R; and that mistake led to a finding of unfairness. It is important to bear in mind that a mistake as to where the asylum-seeker actually was (based on an evaluation of conflicting evidence) would not have done so."

20. It is clear that the cases show that a distinction has to be made between those situations where an appeal court is satisfied, on new evidence, that a minister or an inferior body or tribunal took a decision on the basis of a belief as to the existence of a material fact that was now demonstrated beyond peradventure to be wrong (as in Carnwath LJ's cases (ii) to (viii)) and those situations where it took its decision in the mistaken belief that there was in fact no apparently cogent evidence to refute a material finding it had made.
21. The present case clearly fell into the second of these categories, since Mrs Shaheen (supported by her brother) has consistently asserted that she was in fact in Pakistan during the period when, on the adjudicator's findings, she was being treated so badly by her husband in that country that she had to flee to England. The Secretary of State, however, pursued his appeal in the IAT on the basis that the case fell into the first category (see the grounds of appeal recited in para 7 above). In my judgment the IAT committed no error of law when it decided that it did not fall into that category. Notwithstanding the fact that E and R had been decided nine months before the hearing before the IAT – and Cabo Verde was decided on 6th December 2004, more than a fortnight before the IAT's decision was promulgated - the Secretary of State continued to assert that Mr and Mrs Shaheen were in fact in this country at the relevant time. In the light of Mrs Shaheen's denial, supported by her brother, the IAT committed no error of law when it decided that the Secretary of State's case did not satisfy the requirements of E and R.
22. The new evidence from the hospital cannot in these circumstances avail the Secretary of State. His representative knew that Mr Shaheen's story was being vigorously contested at the time of the IAT hearing. All that the new evidence does is to strengthen the evidence on the Secretary of State's side of the dispute. It cannot serve to rescue him from the fact that his representative argued the case before the IAT on a basis that was doomed to fail. This appeal is therefore dismissed, since the IAT committed no error of law. The IAT was wrong when it said that it could not be confident that the adjudicator would have reached a different decision even if he had known that the parties were living in England at the time (particularly because it was an important part of Mrs Shaheen's case that her husband was being egged on by his mother while they were in Pakistan), but this consideration cannot affect the outcome of this appeal.
23. This need not be the end of the matter. If the Secretary of State is satisfied on sufficiently cogent evidence that the decision of the adjudicator was procured by fraud, then there is nothing to prevent him from taking appropriate action to have his own decision set aside (see R v SSHD ex p Momin Ali [1984] 1 WLR 663, 670-1; R v SSHD ex p Boafo [2002] EWCA Civ 44 at [28]; Saribal v SSHD [2002] EWHC 1542 (Admin) at [26]). In view of Mrs Shaheen's denials, a mere letter from a hospital records officer would be unlikely to satisfy the requisite standard of proof.
24. In these circumstances there is no need for us to answer the second question I posed in para 15(ii) above. But in view of the fact that we are concerned with a difficult and developing area of law, it would be wrong for us to say nothing in response to the arguments that were addressed to us.
25. If one sets the decision of this court in E and R on one side, the favourable decision of the adjudicator (which absent a successful appeal or circumstances amounting to fraud the Secretary of State was bound to implement – see ex p Boafo) would be conclusive in Mrs Shaheen's favour. If Parliament had not extinguished the right of appeal to the IAT on questions of fact, the Secretary of State could have adduced the new evidence to the IAT, and if it had been willing to admit it, it could have resolved the dispute of fact itself or remitted it to an adjudicator for resolution.
26. Because the IAT's jurisdiction at the material time was restricted to hearing appeals on the grounds of errors of law, the courts should be very wary, in my judgment, about allowing appeals on fact to re-enter through a back door. Finality in litigation has always been very important: see Lord Wilberforce in the Ampthill Peerage Case [1977] AC 547, 569:

"Any determination of disputable fact may, the law recognises, be imperfect; the law aims at providing the best and safest solution compatible with human fallibility, and having reached that solution it closes the book. The law knows, and we all know, that sometimes fresh material may be found, which perhaps might lead to a different result, but in the interest of peace, certainty and security it prevents further inquiry."

Compare R v SSHD ex p Momin Ali [1984] 1 WLR 663, per Sir John Donaldson in an immigration context (at p 670A):

"... 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."

27. In my judgment it would be desirable for the court to revisit on an appropriate occasion the decision in Cabo Verde and the rationalisation of that decision in R (Iran). In Cabo Verde itself Buxton LJ said (at para 21) that it was plainly established that relevant evidence had not been before the IAT and that this was sufficient for this court, whose jurisdiction was limited to the correction of errors of law, to remit the appeal to the IAT (which had originally decided the appeal at a time when it had jurisdiction to correct errors of both law and fact). In R (Iran) the court rationalised this decision by saying that the relevant mistake of fact was a mistake as to the existence of evidence which put in issue Mr Cabo Verde's claim to have been in Angola at the relevant time.
28. The argument on the present appeal has led me to conclude that the practical implications of Carnwath LJ's first case (see para 17 above) should be re-examined, following full argument, by a court presided over, if possible, by the Master of the Rolls or myself. I have noted that Professor Craig, in an article entitled Judicial Review, Appeal and Factual Error (2004) PL 788, rationalised the CICB case at p 794 as one "where the decision-maker makes a mistake of fact by failing to take account of crucial evidence when it made its initial decision". The doctor's report represented critical contemporaneous documentary evidence already in existence which the decision-maker believed did not exist. We seem to be in danger, in this area, of slipping from the identification of an uncontentious and objectively verifiable fact such as the prior existence of crucial and reliable documentary evidence into a willingness to re-open appeals for error of law merely because a witness has been subsequently found who could have made a witness statement challenging the factual conclusions that were reached by the original decision-maker in ignorance of such evidence. The applications for permission to appeal which this court is now receiving show that this whole question needs to be revisited authoritatively at an early date. Carnwath LJ, after all, said in E and R at para 66 that the court was not seeking to lay down a precise code.
29. It may be that a solution may emerge along the following lines:

i) Proof or admission that the tribunal of fact misapprehended a potentially decisive element of the evidence before it discloses an error of law (see Cases (ii)-(viii) in E and R at para 17 above).

ii) Proof or admission of a subsequently discovered fact permits an appellate court to set aside a decision for fraud, provided that it was potentially decisive and it can be shown that the defendant was responsible for its concealment.

iii) The emergence of any other class of new fact, whether contested or not, has either to be processed within the Immigration Rules or simply lived with, as Lord Wilberforce explained in the Ampthill Peerage case. Thus it may afford an unsuccessful applicant a fresh claim, or it may allow the Home Secretary to remove or deport notwithstanding the grant of indefinite leave to remain. In any other case, finality prevails.

30. All this is for future debate, and this final passage in my judgment should not be regarded as having any binding effect. For the present, it is sufficient to dismiss this appeal.

Lord Justice Sedley:

31. I agree.

Lord Justice Jonathan Parker:

32. I also agree.