E v Secretary of State for the Home Department; R v Same
| Jurisdiction | England & Wales |
| Judgment Date | 02 February 2004 |
| Date | 02 February 2004 |
| Court | Court of Appeal (Civil Division) |
COURT OF APPEAL
Before Lord Phillips of Worth Matravers, Master of the Rolls, Lord Justice Mantell and Lord Justice Carnwath
Practice - appeal tribunal's mistake of fact giving rise to unfairness - could amount to point of law
Mistake of fact giving rise to unfairness was a separate head of challenge in an appeal to the Court of Appeal on a point of law. That court could admit relevant new evidence on established principles, which could be applied flexibly in exceptional cases where justice required.
The Immigration Appeal Tribunal was able to take account of new evidence up to the date the decision was sent to the parties, and, when considering applications for leave to appeal, could direct a rehearing when such a course was justified.
The Court of Appeal so held, allowing the appeals of E and R against the dismissal by the Immigration Appeal Tribunal on April 4, 2003 and August 19, 2003 respectively of their appeals against adjudicators' decisions upholding the refusal of their asylum claims by the Secretary of State for the Home Department and remitting the appeals to the tribunal to consider the new evidence in the context of its discretion to direct a rehearing.
Mr Manjit Gill, QC and Mr Abid Mahmood for E; Mr Raza Husain for R; Mr Steven Kovats and Mr Parishil Patel for the Home Secretary.
LORD JUSTICE CARNWATH, giving the judgment of the court, said that the appeals raised a common issue as to the powers of the Immigration Appeal Tribunal and of the Court of Appeal to review its determination, where an important part of its reasoning was based on mistake or ignorance as to the facts, and to admit new evidence to demonstrate the mistake.
Doubt had been thrown on those 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) A more flexible approach was developed in R v Secretary of State for the Home Department, Ex parte TurgutUNK ((2001) 1 All ER 719) and followed in several other cases.
However, doubts had been expressed. There was an underlying tension between the anxious scrutiny appropriate to asylum cases and the important, but sometimes conflicting principle of finality.
The appeals of E and R to the Immigration Appeal Tribunal were governed by the Immigration and Asylum Act 1999, under which, by paragraph 22 of Schedule 4, the grounds of...
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