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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Secretary of State for the Home Department v Patel [2022] EWCA Civ 36 (21 January 2022) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2022/36.html Cite as: [2022] EWCA Civ 36 |
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ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge Hanson
HU/03308/2019
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE MOYLAN
and
LORD JUSTICE WILLIAM DAVIS
____________________
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Respondent |
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- and – |
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KRUPALIBEN SANIKUMAR PATEL |
Appellant |
____________________
Nicholas Chapman (instructed by Government Legal Department) for the Respondent
Hearing date: 15 December 2022
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Crown Copyright ©
Lord Justice William Davis
Introduction
Background
The hearing before Judge Hodgkinson
The hearing before Judge Cockrill
"The conclusion that I reach is that those findings of fact made by (Judge Hodgkinson) in relation to this appellant are a suitable and proper starting point for me on conventional Devaseelan principles. What is also important to stress is that nothing has really been added before me which would enable a different conclusion to be reached properly." (My emphasis added.)
He referred to Mubu and BK (Afghanistan) and said that, in the light of those authorities, he had to maintain the factual findings of Judge Hodgkinson. He concluded by saying that he had been provided with no explanation as to why the report of Professor French (and by implication the other evidence filed by the SSHD before him) had not been available to Judge Hodgkinson.
The appeal to the UT
Discussion
"In my view, the Deevaseelan guidelines are as relevant to cases like the present where the parties involved are not the same but there is a material overlap of evidence, as the Immigration Appeal Tribunal observed in TK Georgia, at paragraph 21 of their determination. Clearly, the guidance may need adaptation according to the nature of the new evidence, the circumstances in which it was given or not given in the earlier proceeding and its materiality to securing a just outcome in the second appeal along with consistency in the maintenance of firm immigration control. It should also be borne in mind, as Hooper LJ pointed out in the course of counsel's submissions, that admission of new evidence may, as a matter of fairness, operate for, as well as against, a claimant for asylum. In immigration matters, as in other areas of public law affecting individuals, public policy interests of firmness, consistency and due process may have to be tempered with considerations of fairness in particular circumstances."
"….following the Devaseelan guidelines, not only is the earlier determination the starting point, it should be followed unless there is a very good reason not to do so. The FTT treated the determination in R's appeal as the starting point but departed from the findings of fact because of the evidence of the uncle's travels. In my judgment that evidence did constitute a very good reason for departing from the determination in R's case as it contradicted a core aspect of the appellant's claim, namely that his uncle had fled from Albania because of the blood feud, was fearful of being killed and could not safely return. The FTT's reliance on that evidence in order to depart from the findings made in R's determination demonstrates no material error of law…."
(i) Where there are different parties but with a material overlap of evidence, the Devaseelan principles of fairness apply with appropriate modification.
(ii) What fairness requires will depend on the particular facts of the case. The findings at an earlier FTT hearing will be an important starting point but the second FTT judge cannot avoid the obligation to address the merits of the case on the evidence then available.
(iii) The second FTT judge necessarily will look for a very good reason to depart from the earlier findings. Whether the evidence could have been adduced at the previous hearing may be relevant to that issue. Equally, a very good reason may be that the new evidence is so cogent and compelling as to justify a different finding.
Conclusion
Lord Justice Moylan:
Lady Justice King: