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Upper Tribunal reminds everyone: this is not the place for new evidence

Upper Tribunal reminds everyone: this is not the place for new evidence

Immigration appeals can last a long time: often years and years. What happens when things change during the appeal? This is the question answered by the Upper Tribunal in Akter (appellate jurisdiction; E and R challenges) [2021] UKUT 272 (IAC).

The main take away from this case is: don’t appeal to the Upper Tribunal on the basis of new evidence. Send it to the Home Office instead. This can be frustrating, as it essentially means starting the whole process all over again. But given the Upper Tribunal’s reluctance to consider anything that was not before the First-tier Tribunal, it is likely to be the only way to get anyone to look at it and consider the case afresh.

Family situation changes while appeal ongoing

Once a hearing at the First-tier Tribunal is over it can be very difficult to introduce new evidence. This can cause difficulties when the facts of the case change quite radically: conditions in the country of origin change; a newly discovered medical condition is diagnosed; a child reaches seven years’ residence in the UK or registers as a British citizen.

Two of these changes occurred in Akter. The day after the First-tier Tribunal hearing, Mr Akter’s daughter was admitted to hospital with vomiting and fatigue. She was diagnosed with sarcoidosis shortly afterwards.

She was also registered as a British citizen in April 2021, three months before an Upper Tribunal hearing. This new information would clearly influence the assessment of whether it is reasonable to expect her to leave the UK.

Taking new information on board

Despite important changes such as these, the higher courts will generally only consider the circumstances as they were at the time of the First-tier Tribunal hearing. This can often be several years in the past.

So when can the higher courts take into account post-hearing changes?

There are two stages to any appeal against a First-tier Tribunal decision:

  1. First the higher court must decide whether the First-tier Tribunal has got the law wrong.
  2. If the First-tier Tribunal judge has got the law wrong, then the higher court can either make a new decision themselves or send the case back to the First-tier Tribunal to be decided afresh.

New evidence at this second stage is unproblematic. The first stage is more difficult. How can you say the First-tier Tribunal made a mistake if you’re relying on evidence or circumstances that it wasn’t even aware of?

The answer, Mr Akter’s legal team argued, is to be found in the Human Rights Act 1998, which requires courts to act in a way that is compatible with human rights.

Human rights argument for new evidence on appeal

In the 2019 case of GM (Sri Lanka) [2019] EWCA Civ 1630, the Court of Appeal drew attention to this obligation:

When a Court is required to address an issue relating to fundamental norms or human rights that Court must ensure that any order that it makes is also compliant with such rights. Under section 6 Human Rights Act 1998 all public bodies, including courts, must apply the Act and thereby the [European Convention on Human Rights]. It follows that if an appellate court finds that a lower court or tribunal acted lawfully by reference to the evidence before it but that based upon the facts now known to the appeal court to uphold the decision would violate fundamental norms, then the appellate court must ensure that the decision it takes is compliant with the law. [Paragraph 7]

The President and Vice President of the Upper Tribunal, delivering judgment in Mr Akter’s case, weren’t convinced that this required them to consider new evidence in an application for permission to appeal:

We are in no doubt that the appellants are in error in seeking to rely upon paragraph 7 of GM (Sri Lanka) to found the proposition that an appellate court or tribunal has a free-standing duty, derived from section 6 of the 1998 Act, to disturb the decision of the lower court or tribunal. [30]

This is because section 12 of the Tribunals, Courts and Enforcement Act 2007 says that the higher courts can only interfere with a First-tier Tribunal judge’s decision where they have got the law wrong (or made “an error on a point of law”, to use the legal jargon). If the First-tier Tribunal gets the law right, the jurisdiction of the higher courts “will simply not be engaged” [34].

In GM (Sri Lanka) the Court of Appeal had identified discrete legal errors in the tribunal’s decision which justified moving on to stage two noted above: remaking the decision. At this stage new evidence is less problematic.

Further submission procedure can deal with new info

There is also the problem (from Mr Akter’s point of view) that a migrant can always send their new evidence to the Home Office to be considered as part of a new application or further submission under paragraph 353 of the Immigration Rules.

So leaving a legally correct, but factually out of date, First-tier Tribunal decision undisturbed is unlikely to lead to a breach of a person’s human rights. The Home Office has a:

… continuing obligation to act compatibly with the ECHR, up to the point of actual removal… No doubt in consequence of her ongoing duty, specific provision is made by paragraph 353 of the Immigration Rules for the consideration by the Secretary of State of submissions, following the conclusion of an earlier claim (and any subsequent appeal), which can include submissions that the position of the individual has changed, or that information has come to light which it is argued would make removal based on the earlier adjudication unlawful. [36]-[37]

Mr Akter’s legal team also argued that the First-tier Tribunal had made a mistake of fact giving rise to unfairness (which turns an error of fact into an error of law). This was also dismissed by the Upper Tribunal: the President and Vice President were not satisfied that there was a risk of serious injustice, again referring to the further submissions safety net.

The official headnote

(1) GM (Sri Lanka) v Secretary of State for the Home Department [2019] EWCA Civ 1630 is not authority for the proposition that an appellate court or tribunal has a free-standing duty, derived from section 6 of the Human Rights Act 1998 (public authority not to act incompatibly with ECHR right), to disturb a decision of a lower tribunal. The jurisdiction of the appellate court or tribunal is governed by sections 12 and 14 of the Tribunals, Courts and Enforcement Act 2007, which depends on the lower tribunal having made an error of law before its decision can be disturbed on appeal.

(2) A party who wishes to submit that a decision of a tribunal which is otherwise free from legal error should be disturbed on appeal on the basis identified by Carnwath LJ in E and R v Secretary of State for the Home Department [2004] EWCA Civ 49 should do so clearly, when seeking permission to appeal on that basis.

(3) In deciding whether the principles in Ladd v Marshall [1954] 1 WLR 1489, as applied by E & R, should be modified in exceptional circumstances, the ability to make fresh submissions to the Secretary of State, pursuant to paragraph 353 of the immigration rules, is highly material to the question of whether those principles should be diluted.

Iain Halliday is currently training to be an advocate (the Scottish equivalent of a barrister) at the Faculty of Advocates. Prior to this he worked as a solicitor at McGill & Co, a Scottish law firm specialising in immigration and nationality law.