R(IRAN) V SSHD [2005] EWCA Civ 982
FACTS:-
This judgment involved five appeals from the former Immigration Appeal Tribunal (“IAT”) which was not the Asylum and Immigration Tribunal. An appeal to the IAT lay pursuant to s 101(1) of the Nationality, Immigration and Asylum Act 2002 Act, which provided that:-
"(1) A party to an appeal to an adjudicator under section 82 … may, with the permission of the Immigration Appeal Tribunal, appeal to the Tribunal against the adjudicator's determination on a point of law."
Section 102 of the 2002 Act, provided that:
"(1) On an appeal under section 101 the Immigration Appeal Tribunal may -
(a) affirm the adjudicator's decision;
(b) make any decision which the adjudicator could have made;
(c) remit the appeal to an adjudicator;
(d) affirm a direction given by the adjudicator under section 87;
(e) vary a direction given by the adjudicator under that section;
(f) give any direction which the adjudicator could have given under that section.
(2) In reaching their decision on an appeal under section 101 the Tribunal may consider evidence about any matter which they think relevant to the adjudicator's decision, including evidence which concerns a matter arising after the adjudicator's decision………
(4) In remitting an appeal to an adjudicator under subsection (1)(c) the Tribunal may, in particular –
(a) require the adjudicator to determine the appeal in accordance with directions of the tribunal;
(b) require the adjudicator to take additional evidence with a view to the appeal being determined by a Tribunal."
JUDGMENT::-
Lord Justice Brookes considered the latest guidance from the House of Lords and the Court of Appeal. Previous to 2003 it had been possible to appeal findings of fact.
In reviewing the findings of fact made by an adjudicator, the Court of Appeal said:-
i) It would only very rarely be able to overturn a finding of fact based on oral evidence and the assessment of credibility;
ii) It could more readily overturn a finding of fact based on documentary evidence specific to the individual case (because the IAT was in just as good a position to assess such evidence), but great caution would be required in those cases where there might be an important relationship between the assessment of the person involved and the assessment of those documents;
iii) The IAT would be at least as well placed as the adjudicator to assess findings as to the general conditions, or the backdrop, in the country concerned which would be based on the objective country evidence; the more so if the adjudicator had departed without solid justification from a relevant IAT country guidance decision;
iv) The IAT would be entitled to draw its own inferences as to the application of those general country conditions to the facts of the particular case.
Brookes LJ would give a brief summary of the points of law that would most frequently be encountered in practice:-
i) Making perverse or irrational findings on a matter or matters that were material to the outcome ("material matters");
ii) Failing to give reasons or any adequate reasons for findings on material matters;
iii) Failing to take into account and/or resolve conflicts of fact or opinion on material matters;
iv) Giving weight to immaterial matters;
v) Making a material misdirection of law on any material matter;
vi) Committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of the proceedings;
vii) Making a mistake as to a material fact which could be established by objective and uncontentious evidence, where the appellant and/or his advisers were not responsible for
Brookes LJ mentioned another issue. This arose in E and R v Home Secretary [2004] EWCA Civ 49; [2004] QB 1044. The Court of Appeal was concerned to provide a principled explanation of the reasons why a court whose jurisdiction was limited to the correction of errors of law was occasionally able to intervene, when fairness demanded it, when a minister or an inferior body or tribunal had taken a decision on the basis of a foundation of fact which was demonstrably wrong. Carnwath LJ had given at least eight examples in his review of the case law.
(i) There was in fact contemporary documentary evidence of the injuries sustained by a claimant for compensation from the Criminal Injuries Compensation Board;
(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;
(iii) The land in question had in fact once been part of the Green Belt;
(iv) The proposed building extension would in fact obstruct a particular aspect;
(v) The restructuring of a building was in fact viable;
(vi) A study by a local council did not in fact relate to the inclusion of a particular site within the Green Belt;
(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;
(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;
The Court of Appeal 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.
Brookes LJ referred to Ladd v Marshall [1954] 1 WLR 1489 . The decision of the judge could only be overturned by the use of further evidence if it could be shown that:
(1) the new evidence could not with reasonable diligence have been obtained for use at the trial (or hearing);
(2) the new evidence must be such that, if given, it would probably have had an important influence on the result of the case (though it need not be decisive);
(3) the new evidence was apparently credible although it need not be incontrovertible.
Carnwath LJ said in E and R that an appeal on a question of law might now be made on the basis of unfairness resulting from "misunderstanding or ignorance of an established and relevant fact" and that the admission of new evidence on such an appeal was subject to Ladd v Marshall principles, which might be departed from in exceptional circumstances where the interests of justice required.
Brooks LJ said that there were inevitable consequences that had to follow when Parliament decided to restrict the scope of appeal to the IAT to errors of law. Under this new scheme, the decision of the adjudicator was to be final, unless it was found to be vitiated by an error of law, and arguments based on changed circumstances now had to be addressed to the Secretary of State, not the IAT, if no error of law was found.
He would draw together the main threads of this long judgment in this way. During the period before its demise when the IAT's powers were restricted to appeals on points of law:
1. Before the IAT could set aside a decision of an adjudicator on the grounds of error of law, it had to be satisfied that the correction of the error would have made a material difference to the outcome, or to the fairness of the proceedings. This principle applied equally to decisions of adjudicators on proportionality in connection with human rights issues;
2. A finding might only be set aside for error of law on the grounds of perversity if it was irrational or unreasonable in the Wednesbury sense, or one that was wholly unsupported by the evidence.
3. A decision should not be set aside for inadequacy of reasons unless the adjudicator failed to identify and record the matters that were critical to his decision on material issues, in such a way that the IAT was unable to understand why he reached that decision.
4. A failure without good reason to apply a relevant country guidance decision might constitute an error of law.
5. At the hearing of an appeal the IAT had to identify an error of law in relation to one or more of the issues raised on the notice of appeal before it could lawfully exercise any of its powers set out in s 102(1) of the 2002 Act (other than affirming the adjudicator's decision).
6. Once it had identified an error of law, such that the adjudicator's decision could not stand, the IAT might, if it saw fit, exercise its power to admit up-to-date evidence or it might remit the appeal to the adjudicator with such directions as it thought fit.
7. If the IAT failed to consider an obvious point of Convention jurisprudence which would have availed an applicant, the Court of Appeal might intervene to set aside the IAT's decision on the grounds of error of law even though the point was not raised in the grounds of appeal to the IAT.
Although this guidance in relation to the appellate regime that came to an end in April 2005, with the demise of the IAT and the birth of the AIT many of the principles the Court of Appeal had set out in this judgment would be equally applicable when issues arose as to the identity of an error of law under the new statutory regime.
Finally, so far as access to this court was concerned, the Court of Appeal had traditionally shown itself willing to take an appropriately modest view of its supervisory role when invited to grant permission to appeal from decisions of specialist tribunals:
FACTS:-
This judgment involved five appeals from the former Immigration Appeal Tribunal (“IAT”) which was not the Asylum and Immigration Tribunal. An appeal to the IAT lay pursuant to s 101(1) of the Nationality, Immigration and Asylum Act 2002 Act, which provided that:-
"(1) A party to an appeal to an adjudicator under section 82 … may, with the permission of the Immigration Appeal Tribunal, appeal to the Tribunal against the adjudicator's determination on a point of law."
Section 102 of the 2002 Act, provided that:
"(1) On an appeal under section 101 the Immigration Appeal Tribunal may -
(a) affirm the adjudicator's decision;
(b) make any decision which the adjudicator could have made;
(c) remit the appeal to an adjudicator;
(d) affirm a direction given by the adjudicator under section 87;
(e) vary a direction given by the adjudicator under that section;
(f) give any direction which the adjudicator could have given under that section.
(2) In reaching their decision on an appeal under section 101 the Tribunal may consider evidence about any matter which they think relevant to the adjudicator's decision, including evidence which concerns a matter arising after the adjudicator's decision………
(4) In remitting an appeal to an adjudicator under subsection (1)(c) the Tribunal may, in particular –
(a) require the adjudicator to determine the appeal in accordance with directions of the tribunal;
(b) require the adjudicator to take additional evidence with a view to the appeal being determined by a Tribunal."
JUDGMENT::-
Lord Justice Brookes considered the latest guidance from the House of Lords and the Court of Appeal. Previous to 2003 it had been possible to appeal findings of fact.
In reviewing the findings of fact made by an adjudicator, the Court of Appeal said:-
i) It would only very rarely be able to overturn a finding of fact based on oral evidence and the assessment of credibility;
ii) It could more readily overturn a finding of fact based on documentary evidence specific to the individual case (because the IAT was in just as good a position to assess such evidence), but great caution would be required in those cases where there might be an important relationship between the assessment of the person involved and the assessment of those documents;
iii) The IAT would be at least as well placed as the adjudicator to assess findings as to the general conditions, or the backdrop, in the country concerned which would be based on the objective country evidence; the more so if the adjudicator had departed without solid justification from a relevant IAT country guidance decision;
iv) The IAT would be entitled to draw its own inferences as to the application of those general country conditions to the facts of the particular case.
Brookes LJ would give a brief summary of the points of law that would most frequently be encountered in practice:-
i) Making perverse or irrational findings on a matter or matters that were material to the outcome ("material matters");
ii) Failing to give reasons or any adequate reasons for findings on material matters;
iii) Failing to take into account and/or resolve conflicts of fact or opinion on material matters;
iv) Giving weight to immaterial matters;
v) Making a material misdirection of law on any material matter;
vi) Committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of the proceedings;
vii) Making a mistake as to a material fact which could be established by objective and uncontentious evidence, where the appellant and/or his advisers were not responsible for
Brookes LJ mentioned another issue. This arose in E and R v Home Secretary [2004] EWCA Civ 49; [2004] QB 1044. The Court of Appeal was concerned to provide a principled explanation of the reasons why a court whose jurisdiction was limited to the correction of errors of law was occasionally able to intervene, when fairness demanded it, when a minister or an inferior body or tribunal had taken a decision on the basis of a foundation of fact which was demonstrably wrong. Carnwath LJ had given at least eight examples in his review of the case law.
(i) There was in fact contemporary documentary evidence of the injuries sustained by a claimant for compensation from the Criminal Injuries Compensation Board;
(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;
(iii) The land in question had in fact once been part of the Green Belt;
(iv) The proposed building extension would in fact obstruct a particular aspect;
(v) The restructuring of a building was in fact viable;
(vi) A study by a local council did not in fact relate to the inclusion of a particular site within the Green Belt;
(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;
(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;
The Court of Appeal 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.
Brookes LJ referred to Ladd v Marshall [1954] 1 WLR 1489 . The decision of the judge could only be overturned by the use of further evidence if it could be shown that:
(1) the new evidence could not with reasonable diligence have been obtained for use at the trial (or hearing);
(2) the new evidence must be such that, if given, it would probably have had an important influence on the result of the case (though it need not be decisive);
(3) the new evidence was apparently credible although it need not be incontrovertible.
Carnwath LJ said in E and R that an appeal on a question of law might now be made on the basis of unfairness resulting from "misunderstanding or ignorance of an established and relevant fact" and that the admission of new evidence on such an appeal was subject to Ladd v Marshall principles, which might be departed from in exceptional circumstances where the interests of justice required.
Brooks LJ said that there were inevitable consequences that had to follow when Parliament decided to restrict the scope of appeal to the IAT to errors of law. Under this new scheme, the decision of the adjudicator was to be final, unless it was found to be vitiated by an error of law, and arguments based on changed circumstances now had to be addressed to the Secretary of State, not the IAT, if no error of law was found.
He would draw together the main threads of this long judgment in this way. During the period before its demise when the IAT's powers were restricted to appeals on points of law:
1. Before the IAT could set aside a decision of an adjudicator on the grounds of error of law, it had to be satisfied that the correction of the error would have made a material difference to the outcome, or to the fairness of the proceedings. This principle applied equally to decisions of adjudicators on proportionality in connection with human rights issues;
2. A finding might only be set aside for error of law on the grounds of perversity if it was irrational or unreasonable in the Wednesbury sense, or one that was wholly unsupported by the evidence.
3. A decision should not be set aside for inadequacy of reasons unless the adjudicator failed to identify and record the matters that were critical to his decision on material issues, in such a way that the IAT was unable to understand why he reached that decision.
4. A failure without good reason to apply a relevant country guidance decision might constitute an error of law.
5. At the hearing of an appeal the IAT had to identify an error of law in relation to one or more of the issues raised on the notice of appeal before it could lawfully exercise any of its powers set out in s 102(1) of the 2002 Act (other than affirming the adjudicator's decision).
6. Once it had identified an error of law, such that the adjudicator's decision could not stand, the IAT might, if it saw fit, exercise its power to admit up-to-date evidence or it might remit the appeal to the adjudicator with such directions as it thought fit.
7. If the IAT failed to consider an obvious point of Convention jurisprudence which would have availed an applicant, the Court of Appeal might intervene to set aside the IAT's decision on the grounds of error of law even though the point was not raised in the grounds of appeal to the IAT.
Although this guidance in relation to the appellate regime that came to an end in April 2005, with the demise of the IAT and the birth of the AIT many of the principles the Court of Appeal had set out in this judgment would be equally applicable when issues arose as to the identity of an error of law under the new statutory regime.
Finally, so far as access to this court was concerned, the Court of Appeal had traditionally shown itself willing to take an appropriately modest view of its supervisory role when invited to grant permission to appeal from decisions of specialist tribunals:
- Cooke v Secretary of State for Social Services [2001] EWCA Civ 734; [2002] 3 All ER 279;
- Napp Pharmaceutical Holdings Ltd v Director-General of Fair Trading [2002] EWCA Civ 796, [2002] 4 All ER 376
- Hinchy v Secretary of State for Work and Pensions [2005] UKHL 16 at [30]
- Koller v SSHD [2001] EWCA Civ 1267