E v Secretary of State for the Home Department etc: CA 2 Feb 2004

The court was asked as to the extent of the power of the IAT and Court of Appeal to reconsider a decision which it later appeared was based upon an error of fact, and the extent to which new evidence to demonstrate such an error could be admitted.
Held: The view that appeals were restricted to issues of law might give rise to unfairness and was no longer correct. What might otherwise have been an appeal on the facts could become an issue of law. There were two conflicting sets of authorities. Irrationality or procedural irregularity or even in certain circumstances a mistake of fact can amount to an error of law. Appeals of law ‘are treated as encompassing the traditional judicial review grounds of excess of power, irrationality, and procedural irregularity.’ and ‘In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result. Asylum law is undoubtedly such an area. Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are apparent from the above analysis of the Criminal Injuries Compensation Board case ([1999] 2 AC 330). First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been ‘established’, in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not been have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal’s reasoning.’


Master Of The Rolls Lord Justice Mantell Lord Justice Carnwath


[2004] EWCA Civ 49, Times 09-Feb-2004, [2004] QB 1044, [2004] INLR 268, [2004] BLGR 463, [2004] 2 WLR 1351




Nationality Immigration and Asylum Act 2002


England and Wales


CitedRegina (Holding and Barnes plc) v Secretary of State for Environment Transport and the Regions; Regina (Alconbury Developments Ltd and Others) v Same and Others HL 9-May-2001
Power to call in is administrative in nature
The powers of the Secretary of State to call in a planning application for his decision, and certain other planning powers, were essentially an administrative power, and not a judicial one, and therefore it was not a breach of the applicants’ rights . .
CitedKibiti v Home Secretary CA 2000
The court took a strict approach to the issue of admission of evidence which might demnostrate that the decision under appeal was based upon an error of fact. The appellant was a citizen of the Congo who had been refused asylum and failed in his . .
CitedRegina v Secretary of State for Home Department ex parte Turgut CA 28-Jan-2000
When the Court of Appeal was asked to look at the decision of the Home Secretary on an appeal to him for asylum, the court should investigate the factual circumstances which lay behind the decision. The court must follow the practice of the European . .
CitedRegina v Criminal Injuries Compensation Board Ex Parte A HL 11-Mar-1999
A police doctor’s statement in a contemporary medical report that her findings were consistent with the claimant’s allegation had not been included in the evidence before the CICB when it rejected her claim for compensation.
Held: The decision . .
CitedRegina v Immigration Appeal Tribunal ex parte Haile CA 2002
The adjudicator in the asylum application had made a crucial mistake about the identity of the political party in Ethiopia, with which the claimant was connected. The error was not drawn to the attention of the IAT. The evidence necessary to prove . .
CitedRegina v Secretary of State for the Environment, ex parte Powis CA 1981
Material not available to the decision maker should not normally be admitted on an application for a judicial review of that decision. The court described three categories of acceptable new evidence: (1) evidence to show what material was before the . .
CitedRegina v Secretary of State For The Home Department, Ex Parte Launder HL 13-Mar-1997
The question arose as to whether or not the decision of the Secretary of State to extradite the applicant to Hong Kong would have amounted to a breach of the European Convention on Human Rights. Although the Convention was not at that time in force . .
CitedRegina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
CitedRegina on the Application of Ruslanas Bagdanavicius, Renata Bagdanaviciene v Secretary of State for the Home Department CA 11-Nov-2003
Failed Roma asylum applicants challenged an order for their return to Lithuania. There had been family objections to the mixed marriage leaving them at risk of violence from the local mafia, and an order for their return would infringe their article . .

Cited by:

CitedRegina on the Application of Goldsmith v The London Borough of Wandsworth CA 27-Aug-2004
The claimant, a very elderly lady had lived in a residential home for some time. She fell and was admitted to hospital. The respondent said she could only leave the hospital to go to a nursing home. She and her family sought her return to the . .
CitedGungor, Regina (on the Application Of) v Secretary of State for the Home Department Admn 7-Sep-2004
The claimant made a further claim for asylum after his first claim had failed and his appeal rejected. He claimed that as a Kurd, he would face arrest if returned to Turkey. His passport had had a false visa stamp attached.
Held: While the . .
CitedMazrae v Secretary of State for Home Department CA 28-Jul-2004
The asylum applicant renewed his application for leave to challenge the finding that there was no sufficiently substantial risk to his life if he was returned to Iran, and to introduce new evidence. His account had been rejected as unreliable, but . .
CitedHC v Secretary of State for the Home Department CA 20-Jul-2005
The applicant challenged refusal of his asylum application saying that the court had failed to take account of the fact that as a homosexual moslem, he would face persecution if returned home.
Held: The IAT had not properly recognised that at . .
CitedHC v Secretary of State for the Home Department CA 20-Jul-2005
The applicant challenged refusal of his asylum application saying that the court had failed to take account of the fact that as a homosexual moslem, he would face persecution if returned home.
Held: The IAT had not properly recognised that at . .
CitedWildman, Regina (on the Application of) v The Office of Communications Admn 25-Jul-2005
The claimant sought judicial review of an order quashing the decision of the Office of Communications to refuse a radio licence.
Held: The court should be very cautious before quashing a decision as to the allocation of broadcasting licences. . .
CitedBritish Broadcasting Corporation v Sugar and Another Admn 27-Apr-2007
The applicant sought publication of a report prepared for the respondent as to the even handedness of its reporting of matters in the middle east. The BBC had refused saying that the release of the report would have direct impact on its ability to . .
CitedMcDougal, Regina (On the Application of) v Liverpool City Council Admn 22-Jul-2009
Right Questions asked on School Closure
The claimant sought to challenge the respondent’s decision to close a local school. The choice had been made on academic results and the number of vacancies.
Held: The application failed. The Council had complied with its obligation in . .
CitedGuangzhou Dockyards Co Ltd v Ene Aegiali I ComC 5-Nov-2010
No appeal on facts from award
The defendant ship owners sought to strike out the claimant’s appeal against an arbitration award to the extent that that appeal consisted of an appeal against the factual findings. The claimant argued that the parties had agreed that such an appeal . .
CitedDjanogly v Westminster City Council CA 19-Apr-2011
The appellant challenged the defendant’s order imposing parking charges for motor-cycles. He challenged the assertion that the charges were properly part of a traffic management scheme, and secondly he attacked the findings of the respondent’s cost . .
CitedCastletown Estates Ltd and Another v Welsh Ministers Admn 1-Nov-2013
The claimants challnged the decision of the respondents to refuse permission for the development of former industrial land for residential puroposes. The permission had been refused on the basis of flood maps which the claimants said were . .
CitedIA (Iran) v The Secretary of State for The Home Department (Scotland) SC 29-Jan-2014
The appellant Iranian challenged refusal of his claim for asylum. He had been granted refugee status in Iraq and in Turkey by the United Nations commission, but on arrival in the UK, his asylum claim had been rejected on the basis of the credibility . .
CitedLancashire County Council, Regina (on The Application of) v SSEFRA and Another SC 11-Dec-2019
Two appeals as to the circumstances in which the concept of ‘statutory incompatibility’ will defeat an application to register land as a town or village green where the land is held by a public authority for statutory purposes. In the first case, . .
Lists of cited by and citing cases may be incomplete.

Immigration, Litigation Practice

Updated: 15 May 2022; Ref: scu.192593