New evidence must satisfy Ladd v Marshall to justify departure from FTT decision on refugee status

R (Al-Siri) v Secretary of State for the Home Department [2021] EWCA Civ 113 (08 February 2021)

The Court of Appeal dismissed the government’s appeal against the judgment of Richard Clayton QC where he had quashed the decision of the SSHD in 2018 that Mr Yasser Al-Sirri did not qualify for the grant of refugee status. Prior to all this the FTT had decided that Mr Al-Sirri was not excluded from the Refugee Convention 1951 under article 1F(c) and that he was a refugee. The FTT’s decision was upheld by the UT in August 2016 after the SSHD’s appeal. On 4 August 2017 the Court of Appeal refused the SSHD permission to appeal but she nonetheless made a decision in 2018 that despite the FTT’s decision there were reasonable grounds for regarding Mr Al-Sirri as a danger to the UK’s security under article 33(2) of the Convention and that he therefore did not qualify for the grant of refugee status and would be granted restricted leave to remain in the UK, for a period of six months, on the grounds that to remove him would breach his rights under article 3 of the ECHR. Notably, the restricted leave was subject to conditions requiring Mr Al-Sirri to report quarterly and to obtain the SSHD’s written consent before changing his residence, entering employment or engaging in business or enrolling on any course of study. He thus argued in judicial review proceedings that the SSHD’s failure to give effect to the FTT’s 2015 determination was unlawful. 

Indeed, there was no fresh evidence and the SSHD had relied upon matters which were available to the FTT or added nothing new. Richard Clayton QC granted judicial review as there were insufficient new facts to justify a departure from the FTT’s ruling. He found that Mr Al-Sirri was entitled to apply for judicial review rather than appealing again to the FTT. The 2018 decision was quashed. Albeit unsuccessfully, the SSHD argued that there was no general principle that any case under article 33(2) should be brought at the same time as resisting a claim to refugee status on any other basis. She also submitted that fresh evidence that would pass the Ladd v Marshall  [1954] 1 WLR 1489 test was unnecessary because it was a fresh assessment of a new issue. The SSHD also complained that Richard Clayton QC accordingly erred in holding that she was not entitled, on the facts of Mr Al-Sirri’s case, to make a decision on article 33(2) of the Convention and paragraph 334 of the Immigration Rules. As a further aspect of the second ground, the SSHD challenged Richard Clayton QC’s decision that Mr Al-Sirri did not have an alternative remedy in the form of a statutory appeal to the FTT, contending that the merits of the SSHD’s decision, on the facts, was properly a matter for determination in that forum. Underhill LJ was of the view, and the SSHD accepted, in oral argument that there was merit in the Court of Appeal determining the substantive point of principle, even if the FTT has jurisdiction.

The Court of Appeal 

The court first examined the article 33(2) claims and then looked at the issue of satisfying the Ladd v Marshall test and Underhill and Phillips LJJ and Sir Stephen Irwin dismissed the SSHD’s appeal. As to the article 33(2) claims, the court followed the earlier decision in R (TB (Jamaica)) v SSHD [2008] EWCA Civ 977 that any claims under article 33(2) should be brought at the same time as a claim under article 1(F)(c). 

The SSHD (in the form of Mr Tam QC) unsuccessfully argued that article 33(2) (and rule 334(iii)) raised issues of a different nature altogether to article 1F(c), and the SSHD was at liberty to mount a case under article 33(2) subsequent to a decision that article 1F(c) did not apply. It was said that the SSHD was under a continuing statutory duty to consider whether a refugee was a danger to the security of the country within article 33(2), taking into account the most up to date information, regardless of a previous determination that the refugee had not committed a crime which would have excluded them altogether from the Convention under article 1F(c). 

Reliance was placed in R (TN (Afghanistan)) v SSHD [2015] 1 WLR 3083 to aver that the approach was consistent with the principle confirmed by the Supreme Court that asylum appeals must be determined on the basis of the factual position at the time of the appellate decision rather than the factual situation at the time of the decision under appeal. But the Court of Appeal rejected that submission and Philipps LJ held that:  

46. In my judgment the ratio of the decision in TB (Jamaica)was not restricted in the manner suggested by Mr Tam, but was (as the Judge held) a recognition of the broad principles of finality and proper use of process (or power), applicable in the public law sphere just as in the private law context: a party must bring before the court their entire case, will be bound by the resulting decision and will not be permitted to re-open that decision on the basis of matters which could have been raised, but which were not.

On proper analysis, it was not clear that the SSHD was challenging the application of the principle of finality. It was accepted that a new objection to refugee status could not be taken based on the same matters as were before the FTT. The dispute appeared to concern the hurdle the SSHD had to overcome, in terms of new matters, to justify re-opening the question of refugee status. 

As to the Ladd v Marshall testthe starting point was that an unappealed tribunal decision was final and binding and had to be accepted and implemented by the SSHD, unless there was a good basis for impugning the tribunal’s decision. Dually, both the binding nature of the tribunal’s decision and the high hurdle for re-opening it were aspects of the principle of finality. The SSHD’s arguments focussed far too closely on the specific facts of certain of the authorities rather than the reasoning adopted and the principles defined and applied. Philipps LJ therefore held that: 

66. As appears from the authorities, that principle underlies the test (R (Momin Ali) v Secretary of State for the Home Department [1984] 1 WLR 663)and the test exemplifies the principle (Saribal v SSHD [2002] EWHC 1542 (Admin)): they are two sides of the same coin. The high hurdle is the test in Ladd v Marshall.

He therefore held that test applied, by analogy in public law cases, to attempts to overturn final decisions based on new material because of the high importance ascribed to finality in litigation. Richard Clayton QC was right to apply the Ladd v Marshall test. 

The court added that the matters identified in the SSHD’s 2018 decision were only further examples of Mr Al-Sirri’s activity in publishing extremist views. The SSHD said that the ultimate decision to apply article 33(2) to his case was taken at Ministerial level owing to its seriousness. It was contended that, in the above circumstances, it was not irrational for the SSHD to regard the circumstances of his case as changed and to make a fresh decision as to the danger he posed to the security of the country as at July 2018. 

However, ample evidence of such activity had been produced to the FTT. The additional matters or the revised guidance to the application of article 33(2) could not have had an important influence on the result of an article 33(2) case, had it been argued before the FTT. Therefore, the new matters did not satisfy the second limb of the Ladd v Marshall test. (The new matters being a social media statement in which he “advocated the use of violent jihad as an obligation for Muslims”, social media posts with pictures of Islamic State suicide bombers in Libya and a Facebook post in which he appeared to encourage financing violent jihad, stating that it was “among the best deeds of charity” and “Jihad for the sake of Allah”). Yet, there had to be something different or of significance in the new material to trigger a new decision and Philipps LJ consequently held: 

74. Indeed, in my judgment a decision to make a fresh decision based on the new matters does not even surmount a threshold of rationality. As Irwin LJ put it in the course of argument, there must be something different or of significance in the new material to trigger a new decision, but in this case the new material was, as Mr Husain submitted, “less of the same”.

75. I therefore see no merit in the Home Secretary’s challenge to the Judge’s substantive decision.

As to alternative remedy, the question was whether Mr Al-Sirri’s right of appeal to the FTT against the SSHD’s decision on the grounds that it was a breach of her obligations under the Refugee Convention provided him with an alternative forum for arguing that the decision was unlawful by reason of the previous FTT decision. Therefore, Mr Al-Sirri could not effectively challenge the lawfulness of the decision by appealing to the FTT, nor should he have been required to mount a merits appeal in front of that tribunal before making a judicial review challenge. Philipps LJ said this: 

92. Even if I am wrong about the availability of the FTT as a forum for determining YAS’s challenge to the lawfulness of the Decision, I agree with the Judge that an appeal to the FTT does not provide a satisfactory alternative remedy. The result of a successful appeal on the basis discussed above would be a second decision of the FTT, effectively duplicating the original FTT Decision (as the Home Secretary would not have been permitted to advance a new case). Why, one might ask, would the Home Secretary grant refugee status following that second decision when she did not do so following the first decision? What would stop her from waiting until she had yet further new material, making a third decision and requiring YAS to appeal once more to the FTT? At some point, as a matter of upholding the rule of law, a failure to comply with the determination of the FTT must be capable of enforcement by order of the High Court: it is unclear to me why that should not be at the point when the Home Secretary first ignores such a determination.

The court thus dismissed the SSHD’s appeal against Richard Clayton QC’s finding that Mr Al-Sirri did not have an alternative remedy.

Comment

Ladd v Marshall articulates a three-part test. First whether the evidence now relied upon could with reasonable diligence have been discovered earlier prior to the trial. Second, whether that evidence was likely to have had an impact on the case, namely that it had an important if not necessarily decisive influence in the decision. Third, the evidence must be apparently credible although not incontrovertible. 

Unappealed tribunal decisions are meant to be binding on the parties and, in this case, the SSHD had clearly attempted to unilaterally change settled judicial findings in an unlawful manner. Although it is true that Mr Al-Sirri’s promotion of violent jihad was a very nasty aspect of his existence, the problem for the government was that ample evidence of such activity had been produced to the FTT. 

The outcome in Mr Al-Sirri’s case contrasts rather starkly with the case of Ullah v SSHD [2019] EWCA Civ 550, discussed here, where the Court of Appeal dismissed a Pakistani man’s appeal against the refusal of his judicial review claim challenging the decision to cancel his Indefinite Leave to Remain (ILR) in the UK. Mr Ullah had been granted ILR after FTTJ Turkington allowed his appeal in June 2012 on the basis of having been in the UK for 14 years. In 2013, someone sent a “denunciation” of Mr Ullah to the Home Office which brought into question the past basis upon which he had applied for ILR in 2011 and on which the FTT had found in his favour. All that was trouble for Mr Ullah whose ILR was cancelled. 

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Appeals, Article 3, Asylum, Court of Appeal, ECHR, Egypt, Islam, Judicial Review, Refugee Convention, Terrorism and tagged , , , , , . Bookmark the permalink.

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