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Court of Appeal rules on Home Secretary's duty of candour

Written by
Doughty Street Chambers
Date of Publication:
31 March 2017

The Court of Appeal has ruled that the Home Secretary is required to refer judges hearing asylum and immigration appeals to relevant country information and guidance which may assist the appellant, regardless of whether she has already published it on the Internet. Mark Henderson, instructed by Birnberg Peirce & Partners, acted for the appellant in UB (Sri Lanka) v Home Secretary [2017] EWCA Civ 85.

In its judgment, the Court "delineate[d]… the clearest obligation on the Secretary of State to serve relevant material and ensure it was before the Tribunals at both levels" and held that the duty could not be avoided by the Home Secretary publishing the material on the Internet and claiming that it was therefore "publicly available" to tribunals, appellants and their representatives. Irwin LJ, with whom Sir James Munby PFD and David Richards LJ agreed "deprecate[d] any suggestion that this obligation of service is displaced or diminished by the availability of the material online".

He added that: "Apart from the clear obligation in law derived from authority, many appellants in immigration and asylum cases are unrepresented. In a number of cases where there is legal representation, the quality of representation is less than optimal" (para 21).

The judgment establishes that this duty requires the Home Secretary to assess the relevance of her country information and guidance in advance of the appeal hearing. It explains "The obligation is clear but must not be taken beyond the proper bounds… [C]omplaints as to alleged failures of disclosure of material which is truly peripheral or irrelevant should readily be rejected" (para 22).

The Court also makes clear that the Home Secretary's duty to submit material applies to any appeal where it is relevant to the appellant's claimed facts, including where she has rejected that factual account. On the contrary, by rejecting the account, she will have demonstrated her awareness of the claimed facts, and therefore her duty to assess in advance of the hearing whether her country material would be relevant if that account were to be accepted by the judge.

The Court confirms that an appeal on a point of law will succeed where the Home Secretary's breach of her duty renders the determination(s) below materially unfair. It is unnecessary to identify any fault on the part of the tribunal judges. The Home Secretary had contended that the appeal could not succeed because the document that she should have submitted did not establish that any particular factual finding of the tribunals was mistaken. UB contended that the test was the common law materiality test of whether the document(s) were capable of leading to a different conclusion. The Court's judgment confirms that the latter approach is correct, holding that it was sufficient to render the determinations wrong in law that the Court could not "preclude the possibility that these letters [from the British High Commission] might affect the outcome" (para 23).

The judgment ought to end the widespread practice in recent years of the Home Secretary failing to submit or draw the attention of judges in the First-tier and Upper Tribunals to her country information and guidance where it may assist an appellant. The Court of Appeal has now ruled in the clearest terms that she should not seek to avoid her duty by arguing that she has made her material "publicly available" on the Internet. She can no longer claim that it is the responsibility of the appellant to find and submit her material, whether or not he is represented (adequately or at all).

To comply with the judgment will require the Home Secretary to operate procedures to ensure that her country information and guidance is assessed for relevance to the appellant's claimed facts (regardless of whether she disbelieves them) in advance of the hearing and to submit any relevant material. This includes material post-dating her own decision but pre-dating the appeal hearing (as in UB). Breach of her duty will render a decision in her favour unfair and wrong in law unless the reasons for the determination preclude the possibility that a different outcome could be reached.