E v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Carnwath,the Master of the Rolls
Judgment Date02 February 2004
Neutral Citation[2004] EWCA Civ 49
Docket NumberCase Nos: C1/2003/1394 AND C1/2003/2203
Date02 February 2004

[2004] EWCA Civ 49




Royal Courts of Justice


London, WC2A 2LL


The Master of the Rolls

Lord Justice Mantell and

Lord Justice Carnwath

Case Nos: C1/2003/1394 AND C1/2003/2203

Secretary Of State For The Home Department
Secretary Of State For The Home Departmen

Mr M S Gill QC and Mr A Mahmood (instructed by TRP Solicitors) for the appellant "E"

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

Lord Justice Carnwath



This is the judgment of the Court. These two appeals have been heard together because they raise a common issue as to the powers of the Immigration Appeal Tribunal ("IAT") and the Court of Appeal (a) to review the determination of the IAT, where it is shown that an important part of its reasoning was based on ignorance or mistake as to the facts; and (b) to admit new evidence to demonstrate the mistake.


Doubt has been thrown on these issues by apparently conflicting approaches in two separate lines of Court of Appeal authority. A strict approach was taken in Kibiti v Home Secretary [2000] Imm AR 594, and more recently in AE and FE v Secretary of State [2003] EWCA Civ 1032. A more flexible approach was developed in three cases: R v Home Secretary ex p Turgut [2001] 1All ER 719; R v IAT ex p Haile [2002] INLR 283; and A v Secretary of State [2003] INLR 249. This more flexible approach has been followed without detailed argument in several other cases, including: Khan v Secretary of State [2003] EWCA Civ 530; R (Tataw) v Secretary of State [2003] EWCA Civ 925, [2003] INLR 585; Polat v Secretary of State [2003] EWCA Civ 1059; and Bagdanavicius v Secretary of State [2003] EWCA Civ 1605. In another, the Secretary of State himself relied, without objection, on new evidence (about conditions in Russian prisons) produced for the first time in the Court of Appeal: Batayav v Secretary of State [2003] EWCA Civ 1489.


However, doubts have been expressed. In Polat (at para 28), May LJ noted the suggestion that previous decisions of this court had been per incuriam which he said "may need to be considered upon full argument in a case in which it really matters". In Bagdanavicius, Auld LJ (in a judgment agreed by the Lord Chief Justice and Arden LJ) having referred to the second line of authority, commented (para 72):

"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 [1987] 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.


In the present case, Mr Kovats for the Secretary of State submits that the strict line is to be preferred. As we understand it, his main object of attack is A v Secretary of State, which, he says, was per incuriam, because it was decided without reference to Kibiti, and based on a misinterpretation of Turgut and Haile. The later cases (except AE and FE) wrongly treated the issue as settled by A v Secretary of State, although they may be defensible on their facts or on the basis of concessions made in them.


We will first summarise the facts of the two cases before us, and the statutory framework. It will then be necessary to consider the relevant principles of general administrative law, before analysing in more detail the relevant asylum cases, and drawing conclusions.

Factual background


We will refer to the two appellants respectively as "E" and "R".


E is an Egyptian national who has lived outside Egypt all his life. He came to this country from Bangladesh in April 2001 and claimed asylum. His case is that he is a sympathiser of the Muslim Brotherhood, and that his family, particularly his father, had been strongly involved in Muslim Brotherhood activities. He said that he had left Bangladesh because the Egyptian authorities were looking for him and that he could not renew his passport without going to Egypt. He claimed that if he were required to return to Egypt he would be subject to risk of detention and torture. His application for asylum was refused by the Home Secretary, and that refusal was confirmed on appeal by the Adjudicator and by the IAT.


The IAT hearing took place on 22 nd October 2002, but for reasons which have not been explained the decision was not issued until 4 th April 2003. The Tribunal accepted (contrary to the finding of the Adjudicator) that there was evidence that Muslim Brotherhood members were detained and arrested in Egypt. However it concluded that the arrests in the year 2000 were related to the elections in that year, and that most of those arrested were released after a short period (para 58). It recorded that the Adjudicator had properly rejected the appellant's evidence on a number of points. It concluded:

"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 [1996] 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 [2003] EWCA Civ 1677.)


On receipt of that decision, E applied to the IAT for permission to appeal to the Court of Appeal. He challenged the finding that the arrests were solely related to the year 2000. He sought to rely on "subsequent objective evidence", in the form of two reports, which had come into being since the hearing but before the promulgation of the decision.


The first was the Human Rights Watch Report 2003, published in January 2003. It referred to the Government intensifying its "crackdown on real or suspected political opponents"; and to "hundreds of arrests during 2002 of suspected Government opponents", the "vast majority" of those targeted being alleged members of the banned Muslim Brotherhood. It also said that police and security personnel "continued to routinely torture or mistreat detainees in some cases leading to death in custody." It noted as a "positive development" that the authorities had referred a number of police personnel accused of torturing suspects to trial; but said that the authorities did not investigate the vast majority of allegations of torture. The other report was that of the World Organisation Against Torture, dated 27 th January 2003, which referred to arbitrary pre-trial detention of 15 members of the Muslim Brotherhood.


Permission to appeal was refused by the IAT. Of the two reports, it said:

"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.


R is an Afghan national who came to this country in August 2001 and immediately claimed asylum. The grounds were that he was a convert from Islam to Christianity, and that he feared persecution on that ground if sent back to Afghanistan. The Adjudicator generally accepted R's evidence, but rejected the claim. He considered that, at the time of R's departure from Afghanistan, he had had a well-founded fear of persecution; but that, since the Taliban were no longer in power, his fear was not now justified. This decision was upheld by the IAT. Its hearing was held on 23 rd April 2003, but its decision was not promulgated until 19 th August 2003.


The principal reason for rejecting the claim was that there was no credible evidence of a risk to apostates following the removal of the Taliban. The IAT noted that the appellant's case was unsupported by any recent evidence of conditions in Afghanistan. It commented:

"The appellant's objective evidence consisted of the...

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