AB (Preserved FTT Findings; Wisniewski Principles) Iraq: UTIAC 11 Aug 2020

Preserving findings of fact
(1) Whether and, if so, when the Upper Tribunal should preserve findings of fact in a decision of the First-tier Tribunal that has been set aside has been considered by the Higher Courts in Sarkar v Secretary of State for the Home Department [2014] EWCA Civ 195, TA (Sri Lanka) v Secretary of State for the Home Department [2018] EWCA Civ 260 and MS and YZ v Secretary of State for the Home Department [2017] CSIH 41.

(2) What this case law demonstrates is that, whilst it is relatively easy to articulate the principle that the findings of fact made by the First-tier Tribunal should be preserved, so far as those findings have not been ‘undermined’ or ‘infected’ by any ‘error or errors of law’, there is no hard-edged answer to what this means in practice, in any particular case.

(3) At one end of the spectrum lies the protection and human rights appeal, where a fact-finding failure by the First-tier Tribunal in respect of risk of serious harm on return to an individual’s country of nationality may have nothing to do with the Tribunal’s fact-finding in respect of the individual’s Article 8 ECHR private and family life in the United Kingdom (or vice versa). By contrast, a legal error in the task of assessing an individual’s overall credibility is, in general, likely to infect the conclusions as to credibility reached by the First-tier Tribunal.
(4) The judgment of Lord Carnwath in HMRC v Pendragon plc [2015] UKSC 37 emphasises both the difficulty, in certain circumstances, of drawing a bright line around what a finding of fact actually is, and the position of the Upper Tribunal, as an expert body, in determining the scope of its functions under section 12 of the Tribunals, Courts and Enforcement Act 2007 in re-making a decision, following a set aside.
The ‘Wisniewski’ Principles
(5) In Wisniewski v Central Manchester Health Authority [1998] LI Rep Med 223, Brooke LJ set out a number of principles on the issue of when it is appropriate in the civil context to draw adverse inferences from a party’s absence or silence. These principles are not to be confused with the situation where a party who bears the legal burden of proving something adduces sufficient evidence, so as to place an evidential burden on the other party. The invocation of the principles depends upon there being a prima facie case; but what this means will depend on the nature of the case the party in question has to meet.


[2020] UKUT 268 (IAC)




England and Wales


CitedWisniewski v Central Manchester Health Authority CA 1997
The court considered the effect of a party failing to bring evidence in support of its case, as regards the court drawing inferences: ‘(1) In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a . .
Lists of cited by and citing cases may be incomplete.


Updated: 04 May 2022; Ref: scu.653931