Post decision evidence

Zahir Chowdhury (NLJ March 6, 1998) seeks to clarify what he sees as a paradox in judicial reasoning relating to the exclusion of "fresh" or "post-decision" evidence in immigration appeals.

However, the perceived conflict in the case law is more conceptual than real; by seeking to give ground to a new basis on which immigration appeals should be considered he creates an anomaly in the judicial function of the immigration appellate authorities; the danger of their becoming what is referred to as "merely an extension of the decision-making function" is that any distinction between executive decision-making and judicial scrutiny is lost.

In this scenario, where the adjudicators become a part of the executive, the only judicial redress would be through the more lengthy and costly remedy of judicial review.It is helpful to re-emphasise the wording of s 19 Immigration Act 1971, from which the jurisdiction of the appellate authorities derives, which states that they may "review any determination of a question of fact on which the decision or action was based".

Section 19(1)(a)(i) provides that an appeal shall be allowed if "the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case." (my emphases).The leading judgments of ex p Weerasuriva [1983] 1 All ER 195 and ex p Kotecha [1983] 2 All ER 289 set out the principle that evidence is admissible only in so far as it relates to the circumstances of a case at the date of the decision against which the appeal is brought and the power of review is only of those facts.

Following on from that, the evidence admissible to the court should relate to those circumstances, even if the evidence itself was not before the original decision maker (see Kwok on Tong [1981] Imm AR 214 and Rahman (7228) unreported).To argue against this current principle -- however restrictive it appears -- defies rationality and would not necessarily avail appellants before the appellate authorities; it would also be contrary to well-decided principles of law that go beyond the immigration field.

In both the civil and criminal jurisdictions the court is required to make a judgment based on a given set of facts or circumstances at a given time (or over a particular period of time).A change of circumstances to a plaintiff or defendant will not change the basis of a claim or a prosecution -- for example, the fact that a victim has reached the age of consent when a prosecution for a sexual offence where age is an issue reaches court does not change the illegality of the defendant's action at the time the crime was committed.The notable exception to the general rule (as Zahir Chowdhury has pointed out) is the judgment in Ravichandran [1996] Imm AR 97 which has changed the focus of the judicial process -- but only in respect of asylum appeals.

It is explicitly stated in Ravichandran that there is no change in respect of immigration appeals and, indeed, the principles stated above are approved (see p 113).An asylum applicant, if his appeal were determined on the basis of the situation at the date of decision, may avail himself of pro tection to which he is no longer entitled and the wording of s 8 Asylum & Immigration Appeals Act 1993 (from which the right of appeal derives) and the provisions of the UN Convention on the Status of Refugees and its Protocol make it logical that this is so.NON-ASYLUM CASESThe "dichotomy" put forward is that -- Ravichandran apart -- there is an anomaly between the decided cases.

On the one hand, the courts are unequivocal on the point that the review is of the facts as at the date of decision and the evidence on which such a review is based should only be that relating to that fixed point in time.

It has been put thus: "the function of the court is not to substitute its own decision for that of the department or Tribunal under review .

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it is .

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necessary to look at [the] .

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appellate structure in order to ask oneself the question whether that appellate structure has to be regarded as an extension of the original decision-making process or whether it is to be regarded as simply a process for enabling that decision to be reviewed .

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it does not seem to me that either an adjudicator or an Immigration Appeal Tribunal is, or is to be regarded as, the administrative person upon whom, and upon which only, is conferred .

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the power to make the decision in question in this case and similar administrative decisions." (Ex p Weerasuriya [1982] Imm AR 23 at 31-32).

This ratio, approved on numerous occasions since, is the prevailing and generally accepted view.On the other hand, the basis on which Zahir Chowdhury argues that the courts can review a decision on the basis of facts as at the date of hearing is founded on the case of Hubbard [1985] Imm AR 110 and the contention that it extends the jurisdiction of the appellate authorities, thus rendering the exclusion of "post-decision" evidence redundant.

He suggests that Hubbard extends the scope of review to include post-decision facts and evidence.

It is clear from a closer look at this judgment that the decision was not made on this basis.HubbardL Ron Hubbard, (best known as the founder of the Church of Scientology) sought leave to enter the United Kingdom as a visitor -- a rule which encompasses a number of different requirements.

After appeals before an adjudicator and the Tribunal, Mr Hubbard sought judicial review.

The main issue at this stage was whether the appellate authority could dismiss an appeal on a different part of the rule from that on which the original decision was based.

Woolf J (as he then was) reviews the case law thoroughly and expressly approves the judgments in Kotecha and Kwok on Tong.

He concludes that "Clearly, situations will arise where the view of the adjudicator on the facts will be wholly different to that of the Secretary of State and indeed the evidence which will be before the adjudicator will be different from that which is before the Secretary of State.

However, because the function of the adjudicator is to review the determination of the Secretary of State, the matter has to be considered having regard to the circumstances existing at the date of the Secretary of State's decision.

That this is the correct approach to the role of the adjudicator is made clear by the decision of the Court of Appeal in the case of R v Immigration Appeal Tribunal, ex parte Kotecha [1982]Imm AR 88."He goes on to consider the submission that, because s 18 Immigration Act 1971 requires written notice of a decision and written reasons for that decision, such requirements are conclusive of the issues and the relevant rules or part of the rule to be c onsidered and rejects this thesis:"The difficulty I find with [this] submission is that it could lead to results quite contrary to the manner in which the control of immigration is intended to be exercised by the immigration authorities .

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In the course of an appeal, in reviewing the facts on evidence wholly different from that which was before the Secretary of State, the adjudicator can be faced with a situation where the effect of the facts as found by him is clear and unequivocal: leave [to enter] should be refused.

This is not a situation where the applicant is entitled to enter this country.

However, because on the facts which were before him, the Secretary of State based his decision upon a different part of a rule he could have come to a decision which was the right decision, for the wrong reasons, having regard to the facts found by the adjudicator.

If the adjudicator was then to be circumscribed by the reasons for the decision given by the Secretary of State, he would have no option but to come to a decision which was contrary to the rules when viewed as a whole -- This would clearly be a result quite contrary to the intent of the Act.

Furthermore, I regard it as one which would be contrary to the wording of s 19(1)(a)(i) which refers to any immigration rules applicable to the case."It is evident from this extract that the appeals process goes no further than to review the decision made by the Secretary of State as to whether an applicant, at the time his decision was refused, met all the requirements of the rule relevant to the immigration status he was seeking.

The issue of the evidence which the reviewing body considers in making its determination is, in my view, an entirely different issue which is not actually addressed in Hubbard.

Hubbard cannot, as Zahir Chowdhury suggests, be said to widen the scope of review except to the extent that the appellate authority may find, on appeal, that an appellant would have met the requirement of one part of a rule but does not meet the requirement of another part -- but only insofar as the court looks at the applicable rule under which the applicant sought entry and the facts relating to the time at which the applicant sought entry.Similarly the decision in Tohur Ali [1988] Imm AR 237 is not based on facts or circumstances which did not exist at the date of decision; it merely allowed for an interpretation of the self-same facts to render an applicant eligible for leave to enter the United Kingdom under a different part of the same rule.It is equally fallacious to conclude that the case of Nadeem Tahir [1989] Imm AR 98 takes the argument any further.

Yes, it approves Hubbard, but, as already stated, it does not in any way refer to the evidence put forward in support of an appeal or circumstances arising after a decision has been made -- it relates only to the reasons or basis on which the decision is founded.There is, currently, no legal basis on which it can be said that the appellate authorities may consider post-decision facts, circumstances or evidence when determining appeals.

While their powers extend to consideration of a decision de novo, and to substituting their own discretion for that of the decision-maker where appropriate and, indeed, to taking account of fresh evidence that relates to facts at the date of decision, there is no precedent on which to found a theory that fresh evidence can be admitted or considered as part of the appeals process.In widening the scope of review to include any applicable immigration rule the outcome of an appeal may be affected -- as in Hubbard's case, an appellant may be found to have met the requirements of part of the rule but may have failed to meet another part of the rule which then equally would have disqualified him from entering the United Kingdom.

The principle in Kotecha, Kwok On Tong et al is in relation to the way in which the appellate body comes to their determination ie, the evidence which they can take into consideration.

The one proposition relates to the ends, the other to the means by which those ends (the determination) is reached.PUTTING PRINCIPLE INTO PRACTICEIn the context of immigration law, a change of circumstances which might, for example, render an applicant eligible for entry where he had not previously been so eligible, is dealt with by the original decision maker and reconsideration of the new situation can be effected through representations or a re-application.

The position is far from satisfactory because immigration law relates to human circumstances that are subject to change with the passage of time (the student who passes exams previously failed, the asylum seeker who marries whilst her claim is being processed).

Nevertheless, to bring those changed circumstances into the jurisdiction of the appellate authorities would fundamentally change their role.

The problem needs to be addressed by other means, such as a reduction in the delays in the system and a much more sympathetic exercise of discretion by the decision makers who often regard a change of circumstances as an inevitable manifestation of the applicant's mala fides rather than taking a more humanitarian approach.

One example of the need for compassion and realism is where a couple marry whilst an appeal against deportation is pending, where their previous hope had been to avoid marrying in case it was presumed to be for "immigration purposes" -- the marriage may then be entered into in pursuance of a long-standing and genuine relationship but, because of its timing is considered to be an expedient measure which is precisely what the couple would have been trying to avoid.The opposite position may apply where, for example, a couple may be fighting a decision based on their intention to live together and during the period while an appeal is pending the relationship breaks down.

In this instance the appeal may be allowed by the adjudicator on the basis of the evidence of the facts as at the date of decision but no adjudicator would give directions pursuant to the determination and the respondent would certainly not grant leave to remain once the appeal process has been completed.

Ultimately, whatever the conclusion arrived at by the appellate authority, the remedy lies with the original decision maker.This argument leaves one with the distinct impression that the appeal process itself may be redundant when people's lives are subject to so many changing circumstances.

That is not the case -- the fault may lie with the rules themselves and the fact that they can only admit of a given set of circumstances at any one time and are representative of an attempt to put administrative restraints on human conduct.The appeals process is a valuable and vital check on administrative excess or error -- it is about ensuring that decisions are made properly at the time that they are made, in accordance with principles of justice and fairness, it is about trying to bring coherence to increasingly complex legislation by providing interpretations of the rules and the law and ensuring that decisions are taken with a measure of uniformity.

Inherent unfairness in immi gration control should not be addressed by tinkering with the judicial role of the appellate authorities but by a fundamental review of the basis on which immigration control is exercised.On a final note, the most recent airing of the argument has come with the case of ex p Madoris Miah [1998] Imm AR 44 (QBD) wherein counsel for the applicant endeavoured to argue that the Ravichandran principle applied equally to cases where the issue is the future ability of the appellant to maintain and accommodate his family -- in this instance post-decision evidence showed that a change in circumstances would render the appellant able to meet the requirements of the rule that he could not meet at the date of decision.

The judgment is succinct -- the adjudicator's direction that s 19 Immigration 1971 precluded him from considering that evidence was described as "the correct approach.

Indeed, the only proper approach".

This aptly illustrates the difficulty described above for applicants who are able to improve their position with time.

However, the finality of the words suggests that a change in the law is not imminent, sustainable nor necessarily desirable.