E v Secretary of State for Home Department

Facts

E and R each claimed asylum and lost before an adjudicator and then the Immigration Appeal Tribunal. In each case material bearing on the risk to the appellant on return became available after the Tribunal hearing but before its decision was promulgated, and was not taken into account. The appellants appealed to the Court of Appeal, where an appeal lay only on a point of law, contending that the Tribunal had decided their cases on a mistaken factual basis.

History

Asylum appeals dismissed by an adjudicator and by the Immigration Appeal Tribunal; appeals to the Court of Appeal on a point of law.

Issue

Whether, on an appeal confined to points of law, the court could intervene on the ground that the tribunal had made a mistake of fact; if so, what conditions must be met; and whether, and up to what point, the tribunal itself had power to consider new evidence after the hearing.

Held

Mistake of fact giving rise to unfairness is a separate head of challenge which can found an appeal on a point of law. The Tribunal retained power to take account of new evidence until its decision was promulgated. The appeals were allowed and the cases remitted to the Tribunal.

Ratio

• A tribunal decision may be set aside for error of law where there has been a mistake as to an existing fact, including the availability of evidence on a matter; the fact or evidence is established, in the sense of being uncontentious and objectively verifiable; the appellant or his advisers were not responsible for the mistake; and the mistake played a material, though not necessarily decisive, part in the tribunal reasoning.
• The admission of new evidence to establish such a mistake is governed by the Ladd v Marshall principles, which may be departed from in exceptional cases where the interests of justice require it.

The judgments

Key reasoning

• The authorities, including Secretary of State for Education and Science v Tameside MBC [1977] AC 1014 and ex p A, showed that the courts already intervened for factual error in some circumstances, but without a settled test; the court sought to state one.
• The justification is fairness rather than a general power to correct factual findings: where the decision-maker and the parties share an interest in a correct decision, a decision vitiated by an established mistake for which the appellant is not responsible is unfair.
• The conditions protect finality and the primacy of the fact-finder: the mistake must be uncontentious and objectively verifiable, not a matter of disputed judgment, and must have materially affected the reasoning.
• The Tribunal was not functus officio until its decision was promulgated, so it had power to consider material arriving in the interval.

Where it fits in the module

Under Error of fact, E is the central authority for the proposition that a decision may be unlawful because it rests on a mistaken fact, not merely on an error of law or irrationality. It is read against Tameside and ex p A, and against the jurisdictional fact cases such as Khawaja, to test how far review now extends into fact-finding. The four conditions are the focus: they show the courts admitting factual error while preserving the primacy of the primary decision-maker.

Criticisms

• Grounding the doctrine in a shared interest in a correct result fits asylum cases well but sits awkwardly in adversarial contexts where the decision-maker and the citizen do not share an interest.
• Treating a mistake of fact as an error of law blurs the line on which appeals limited to points of law depend, and risks expanding appellate jurisdiction by relabelling.
• The requirement that the mistake be uncontentious and objectively verifiable confines the doctrine to clear cases and leaves serious but disputed factual errors without a remedy.
• The responsibility condition can penalise a claimant for the failings of advisers, which sits uneasily with a ground said to rest on fairness.