Asylum - new evidence available after Immigration Appeal Tribunal hearing but before decision promulgated - power to reopen decision to take it into account

E v Secretary of State for the Home Department; R v Same: CA (Lord Phillips of Worth Matravers, Master of the Rolls, Lord Justice Mantell and Lord Justice Carnwath): 2 February 2004

The appellants were foreign nationals who applied for asylum on arrival in the UK.

Their claims were refused by the secretary of state, whose decisions were upheld by the adjudicators.

Their appeals were heard by the Immigration Appeal Tribunal, but a delay occurred before promulgation, during which time relevant evidence became available.

On their applications for leave to appeal to the Court of Appeal, the tribunal refused to direct a rehearing.

Leave was granted.

Manjit Gill QC and Abid Mahmood (instructed by TRP Solicitors, Birmingham) for E.

Raza Husain (instructed by TRP Solicitors, Birmingham) for R.

Steven Kovats and Parishil Patel (instructed by the Treasury Solicitor) for the secretary of state.

Held, allowing the appeals and remitting the cases to the tribunal for reconsideration, that an appeal to the Court of Appeal on a question of law could be made on the ground of mistake of fact giving rise to unfairness; that new relevant evidence could be admitted on Ladd v Marshall [1954] 1 WLR 1489 principles, which could be applied flexibly in exceptional circumstances in the interests of justice; that the Immigration Appeal Tribunal could take account of new evidence until the decision was promulgated, and when considering applications for leave to appeal in cases under paragraph 22 of schedule 4 to the Immigration and Asylum Act 1999, could direct a rehearing where justice so required.