Late evidence from the Home Office can be admitted in an appeal where the appellant was aware of it

The Court of Appeal has dismissed an appeal where it was argued that evidence from an earlier judicial review should not be admitted to proceedings in the First-tier Tribunal due to late disclosure by the Home Office. The case is Kanhirakandan v The Secretary of State for the Home Department [2023] EWCA Civ 1298.

Background

The appellant is an Indian national who arrived in the UK as a student in January 2007 and remained in the UK lawfully until 26 February 2016. During this time he made two applications relying on receipt of fees from a company as a self-employed consultant. He applied for indefinite leave to remain in February 2016 and this was refused by the Home Office which said that he had made fraudulent statements in his previous applications and the company he had received fees from was a sham. The decision was upheld following administrative review.

A judicial review of the decision was granted permission and then dismissed following the substantive hearing in July 2017. The Home Secretary served evidence for the judicial review that included reports from a forensic accountant concluding that the company was a sham whose purpose was “facilitate the fraudulent applications … and the abuse of the Tier 1 process”.

In December 2018 the appellant applied for indefinite leave to remain on human rights grounds based on his length of residence in the UK. That was refused in May 2019 on the grounds that he had not reached ten years of lawful residence. It was also rejected on suitability grounds on the basis that he had previously dishonestly used false documents.

The appellant was given an in country right of appeal against that decision. No evidence of dishonesty was provided by the Home Office at the appeal. The explanation provided for the lack of evidence was that the Home Office Presenting Officer “was asked to conduct the appeal at very short notice on the day, by which point the deadline for the Secretary of State’s disclosure was long passed.”

The appellant asserted that he had also been a victim of the scam company and he succeeded in that point at the First-tier Tribunal, as the judge said that the Home Secretary had failed to discharge the burden to show deception was used in the previous application. Despite succeeding on that point, his appeal was still dismissed as he did not meet the ten year legal residence requirement for indefinite leave to remain and it was concluded that it would not be a disproportionate interference with his private life to expect the appellant to return to India.

The Upper Tribunal’s decision

The appellant’s application for permission to appeal to the Upper Tribunal was initially refused and granted only after a Cart judicial review was successful. The Home Secretary lodged a respondent’s notice asserting that there was a material mistake of fact in the First-tier Tribunal’s decision as the judge was unaware of the previous judicial review and evidence that had been provided during those proceedings.

The Upper Tribunal found that there had been errors of law in the First-tier Tribunal’s failure to consider the relevance of Ahsan v Secretary of State for the Home Department [2017] EWCA Civ 2009 but also that the decision was unfair as the First-tier Tribunal judge had been unaware of the previous judicial review and associated evidence. Although the Home Office was primarily at fault for failing to provide the evidence at the Tribunal hearing, the appellant was also aware of the proceedings and failed to draw this to the Tribunal’s attention. The Upper Tribunal reminded the parties of their duties in accordance with the overriding objective, to assist the Tribunal in dealing with cases fairly and justly.

The fact that the appellant was familiar with the material being admitted late was also deemed relevant and the Home Secretary’s application to admit the evidence was granted. The decision was set aside with none of the findings preserved and the case was returned to the First-tier Tribunal to be heard afresh. The appellant sought to challenge the decisions to admit the late evidence and that the findings from the first appeal would not be preserved. The decision to remit to determine the Ahsan point was not under appeal.

The Court of Appeal’s decision

The issue in the Court of Appeal was whether findings made by the First-tier Tribunal that the Home Secretary “had failed to discharge the burden of showing that the appellant had been dishonest and that allegations of dishonesty were “unfounded”” should be preserved.

The appellant also argued that the late evidence should not have been admitted as there was no reasonable explanation for the delay and the material was not admissible. It was argued that because of the adversarial nature of appeals in the First-tier Tribunal, there was no duty on the appellant to produce the Home Secretary’s evidence and he was entitled to assume that she was no longer relying on it. It was also argued that as the Ladd v Marshall [1954] 3 All ER 745 principles for new evidence had not been met, the evidence should not have been admitted. Those principles are at [748]:

In order to justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive; third, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, although it need not be incontrovertible.

The Court of Appeal said that the Upper Tribunal judge had used Ladd v Marshall as a starting point but had been entitled to conclude that there were exceptional circumstances that justified departing from it. The relevant factors were as follows:

• As the appeal was to be sent back to the First-tier Tribunal anyway, the principle in Ladd v Marshall, relating to the need for finality of litigation, was not relevant.
• The judicial review evidence was very significant in the context of the appeal as it was now being advanced, with the new emphasis on the Ahsan point and whether the appellant had been dishonest in his earlier application.
• The evidence did not take the appellant by surprise, because he already knew about it.
• If the judicial review evidence had been put before the First-tier Tribunal judge, it likely would have had a substantial effect on the proceedings.
• There was a wider public interest at issue in this case, in ensuring that foreign nationals are not granted leave to remain on the basis of false or incomplete information.

The Court of Appeal also said that this was a case management decision and there was no proper basis on which the court could or should intervene. The arguments against admitting the judicial review evidence were dismissed.

On the question of preserving the findings from the First-tier Tribunal, the Court of Appeal said that the fact the Ahsan point was now being argued was relevant. The court summarised the appellant’s intended argument in the Fist-tier Tribunal as follows at [36]:

The argument, as I understand it, goes like this: the First-tier Tribunal has found that the appellant was not dishonest ([10] of Judge Black’s decision); that means that the Secretary of State should not have refused his application for an extension of leave in 2016; if the appellant had got that extension in 2016 he would have accrued 10 years’ lawful residence in the UK; in that event, he would have been eligible for ILR and his application in 2018 would have succeeded. The appellant says that the First-tier Tribunal can and should take account of this hypothesis when assessing whether the Secretary of State’s 2019 decision on article 8 grounds is proportionate (or not) in the context of the current appeal.

As the argument is based on the appellant not having used dishonesty in his previous applications, the court said that this “brings the issue of the appellant’s honesty (or lack of it) to centre stage” and for that reason it would be unfair (“obviously and objectively so”) for him to retain the benefit of the First-tier Tribunal’s findings “the consequence of which might be unmerited success in the appeal. That would be contrary to the public interest and antipathetic to the wider interests of justice”.

The appeal on those two points was dismissed and the appeal will be heard fresh in the First-tier Tribunal, including the evidence from the judicial review.

Conclusion

It seems very unlikely that an appellant will be able to benefit by having late evidence from the Home Office excluded in an appeal where they were already aware that evidence existed. Parties on both sides should bear in mind the overriding objective at all times, as well as their disclosure obligations.