The Immigration Appeal Tribunal should not interfere with an adjudicator’s decision unless it concludes that it is not merely able but is required to adopt a different view.
Laws LJ discussed the caution required of an appellate court: ‘The answer is, we think, ultimately to be found in the reason why (as we have put it) the appeal process is not merely a re-run second time around of the first instance trial. It is because of the law’s acknowledgement of an important public interest, namely that of finality in litigation. The would-be appellant does not approach the appeal court as if there had been no first decision, as if, so to speak, he and his opponent were to meet on virgin territory. The first instance decision is taken to be correct until the contrary is shown. As Lord Davey put it in Montgomerie (in the passage we have cited), ‘[i]n every case the appellant assumes the burden of shewing that the judgment appealed from is wrong’ (our emphasis). The burden so assumed is not the burden of proof normally carried by a claimant in first instance proceedings where there are factual disputes. An appellant, if he is to succeed, must persuade the appeal court or tribunal not merely that a different view of the facts from that taken below is reasonable and possible, but that there are objective grounds upon which the court ought to conclude that a different view is the right one. The divide between these positions is not caught by the supposed difference between a perceived error and a disagreement. In either case the appeal court disagrees with the court below, and, indeed, may express itself in such terms. The true distinction is between the case where the appeal court might prefer a different view (perhaps on marginal grounds) and one where it concludes that the process of reasoning, and the application of the relevant law, require it to adopt a different view. The burden which an appellant assumes is to show that the case falls within this latter category.
Judges:
Lord Justice Judge Lord Justice Laws Lord Justice Kay
Citations:
[2004] EWCA Civ 56, [2004] Imm AR 112
Links:
Jurisdiction:
England and Wales
Cited by:
Cited – A v Secretary of State for the Home Department CA 20-Jul-2004
The Immigration Appeal Tribunal allowed the respondent’s appeal against the adjudicator’s decision. The claimant appealed that finding.
Held: The jurisdiction of the IAT was now restricted to issues of law. The respondents submissions to the . .
Cited – P and Another v Secretary of State for the Home Department CA 8-Dec-2004
In each case the Immigration Appeal Tribunal had reversed the decision of the adjudicator on appeal.
Held: The IAT had in effect reheard and decided matters of fact afresh. This departed from the approach in Subesh, and was incorrect. The . .
Cited – Charania v Harbour Estates Ltd CA 27-Oct-2009
The defendant appealed against the award of the estate agent’s fees, acting under a sole agency agreement. The agreement had been terminated. A buyer who had seen the property first under the agency later returned and negotiated a purchase.
Lists of cited by and citing cases may be incomplete.
Immigration
Updated: 10 September 2022; Ref: scu.194577