United Kingdom Asylum and Immigration Tribunal

JF (Fresh evidence- Point of law) Republic of the Congo (Brazzaville) [2005] UKIAT 00053

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 18.02.2005

Date Determination notified: 25 February 2005

Before
John Freeman (a vice-president) Charles O'Brian and Geoffrey Sandall
Between

 

JF	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

Mr B Bedford (counsel instructed by Sultan Lloyd, Birmingham) for the appellant Mr G Russell for the respondent
DETERMINATION AND REASONS

(Note: this case is reported as a convenient summary of the principles in E & R [2003] EWCA Civ 49, Ladd v. Marshall [1954] 3 All ER 745, and MA [2004] UKIAT 00161*)

1. This is an appeal from a decision of an adjudicator (Mrs CJ Lloyd), sitting at Birmingham on 4 March 2004, dismissing an asylum and human rights appeal by a citizen of the Republic of the Congo (Brazzaville). Permission to appeal was given on the basis that, since the adjudicator's decision, the claimant had produced a membership card purporting to show he was a member of the party (UPADS) he claimed to support.
2. Mr Bedford placed some reliance on that decision, made on 27 May 2004, as showing that the production of such fresh evidence could raise a point of law on the adjudicator's decision. In our view this was wholly misconceived: while the current statutory position (requiring such a point) was established from 9 June 2003, its actual effect was only made clear with the decision of the Court of Appeal in CA [2004] EWCA Civ 1165, given on 20 July 2004. We have to decide whether the production of the card (the only ground relied on as a point of law by Mr Bedford) does indeed amount to one, in the light of CA, and E&R [2003 EWCA Civ 49, as elucidated in MA [2004] UKIAT 00161 *. No other point of law was relied on before us.
3. The adjudicator's findings on the claimant's individual history appear at her §§ 26-31: these begin "I do not believe his involvement in UPADS …", and, after substantial reasoned consideration, are summarized at § 30 "All in all, I do not believe the core of the Appellant's claim to have been a UPADS activist who …". At one point Mr Bedford found himself reduced to arguing that these did not amount to credibility findings. As he was apparently quite serious in this contention, the kindest thing may be simply to say that we found it wholly unarguable, and pass on.
4. Mr Bedford's next point was that the adjudicator had not been entitled to make such findings, when the refusal letter had gone no further than (at § 7) to note that "You claim that you are a member of UPADS …", and to conclude (at § 8) that "… it is not accepted that you are a notable political activist for UPADS …". This too must be regarded as wholly misconceived: there was certainly no acceptance in the refusal letter that the claimant had been any kind of member of UPADS, and the nature of his involvement in it, if any, was clearly in issue. That remained Mr Russell's position before us, in the light of the card.
5. Mr Bedford appeared for the claimant before the adjudicator, and there is no suggestion in the grounds of appeal that he or the claimant were in any way misled by the terms of the refusal letter into thinking the Home Office accepted that he was a UPADS member at all. We regret to say that this point first appeared as part of the claimant's case in order to forestall a suggestion that the membership card could and should have been produced before the adjudicator, and the politest thing we can say about it is that, though it was as opportunistic as it was misconceived, the opening for it was simply not given by the terms of the refusal letter.
6. The claimant called another witness before the adjudicator, his cousin Wilson Nsika Nkokolo. The adjudicator disbelieved him too, and, even on his own account, they had not been in touch in the Congo after 1997, when the claimant left Brazzaville (though the claimant said he had left for Pointe Noire in 1995). The suggestion (to explain late production of the UPADS card) in the grounds of appeal at § 3 was that the claimant had become reconciled with this cousin (there called Nkolo) only towards the end of January and "… it was his cousin who only recently managed to make contact with the appellant's wife through use of his contacts and requested that the original party card be forward to the UK. The original card was sent by DHL and received by the appellant on Thursday 25^th March 2004."
7. Mr Bedford was able to tell us no more about the circumstances of this recent reconciliation, or of how the claimant and his cousin had fallen out in the first place. The claim in § 3 of the grounds must be regarded as a wholly unsupported assertion; but, even if that were not so, as Mr Russell pointed out, the order of events given hardly explains why the card should have been sought for (despite what Mr Bedford said about its relevance not being obvious) at some time following a reconciliation in late January, but not received till after the adjudicator sat on 4 March; or why, if it was being sought for, the adjudicator was not at least told about that.
8. It is now time to review the facts surrounding the late production of the UPADS card in the light of the authorities. The requirements for a mistake of fact, assuming it showed the adjudicator had made one, to amount to a mistake of law, are given in E&R at § 66 [the lay-out below is ours, but the words are the Court of Appeal's]:

1. There must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter.

2. The fact or evidence must have been "established", in the sense that it was uncontentious and objectively verifiable.

3. The appellant (or his advisers) must not have been responsible for the mistake.

4. The mistake must have played a material (not necessarily decisive) part in the Tribunal's reasoning.

9. The Court of Appeal in E&R at § 92 referred to the well-known principles in Ladd v Marshall [1954] 1 WLR 1489, set out at § 23 ii), defining the circumstances in which fresh evidence can be allowed on appeal. They are (again in our lay-out and their words) that

1. The fresh evidence could not have been obtained by reasonable diligence for use at the trial.

2. If given, it would probably have had an important influence on the result; and

3. It is apparently credible though not necessarily incontrovertible.


10. As the Tribunal pointed out in MA 04-161* at § 15, the Court of Appeal in E&R made clear at § 92 that they were not dealing with the current jurisdiction of the Tribunal, limited to a point of law. It followed that the application of the Ladd v Marshall principles had to be read subject to the need for the fresh evidence to establish a point of law in the E&R terms, set out at 8. The Tribunal went on to say this:

When applied in the context of error of law alone, the test for the relevance of fresh evidence which could and should have been before the Adjudicator cannot now be that it assists a challenge to factual conclusions such as credibility findings or other personal circumstances which are very much matters for the Adjudicator.

While they examined the evidence of Marie Colvin to see if it met this requirement, they concluded that it did not: not only did it not raise a point of law, but it had been available; the claimant's advisers had simply been ignorant of it.

11. We shall now go on to deal with the present case on the basis now established. Dealing first with the Ladd v Marshall rules, we do not regard it as established, even to a reasonable likelihood (if that is the test on a point of this kind), that the UPADS card could not have been obtained by reasonable diligence for use before the adjudicator: our reasons are given at 7. While it would certainly have been material, we do not accept that it would probably have had an important influence on the result. While the adjudicator noted the absence of an UPADS card, her reasons for not accepting the claimant's history went well beyond that, and did not depend on it.
12. The history of the card itself has not been explored in cross-examination, as it undoubtedly would have been if produced before the adjudicator; but, subject to that, we are prepared for present purposes to accept that on its face it is apparently credible; though certainly not incontrovertible. On the first and second Ladd v Marshall points however, even without the need to meet E&R requirements, we do not regard the card as admissible fresh evidence on appeal to us.
13. Going on to the E&R principles, the existence of a "point of law" in CA terms requires there to have been a mistake as to fact or evidence by the adjudicator. While a mistake as to availability of evidence is enough, the actual fact or evidence must be "uncontentious and objectively verifiable". Clearly the claimant's membership of UPADS remains contentious, in the sense that it is still not accepted by Mr Russell. Mr Bedford suggested that this was immaterial; but we cannot regard the existence of a card, on its face showing the claimant is or was an UPADS member, as "uncontentious and objectively verifiable" evidence that he was, in the absence of either acceptance by the other side, or (for example) a statement from the party itself confirming it as genuine. While "objectively" may not be limited to facts or evidence verifiable from external sources (as would be the case with material relating to the general political background), we have no doubt that it was intended to govern the meaning of "uncontentious".
14. As we have already pointed out (see 4-5), the importance of producing an UPADS card, if there was one, was, or ought to have been perfectly clear to the claimant and his advisers, even on the terms of the refusal letter. It follows that they cannot be regarded as not responsible for any mistake made by the adjudicator as to the availability of such evidence: we return to Mr Russell's point (see 7) as to her not even being told it was, or might be on its way. While the absence of a card was certainly material to the adjudicator's decision (see 11), she made no mistake on its availability at the date of her decision; and in any case on the second and third E&R principles we cannot regard its late production as establishing any point of law as to the decision's correctness.

Appeal 

John Freeman

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