• In the case of E v Home Secretary [2004] EWCA Civ 49 2004 qb 1044, a ground for judicial review on the fairness principle can take the form of a misunderstanding or ignorance towards a relevant/established fact.

Facts of the Case

  • An Egyptian individual, C, attempted to claim asylum in the UK who was afraid to be deported back to his national country, Egypt.
  • C was refused asylum by the Home Secretary who then made an appeal to the Adjudicator and Immigration Appeal Tribunal. C failed on the appeals.
  • Another applicant, who was also a foreign citizen seeking to claim asylum, had also been unsuccessful in their appeal
  • Both applicants attempted to fall back on new evidence which highlighted that, if they were deported, they would be subject to persecution or torture.

Issues

  • Would it be possible to challenge the Immigration Appeal Tribunal’s decision to reject asylum be challenged on a point of law where it can be proved that the Tribunal’s decision was reached based on a misunderstanding or ignorance to an established set of facts?

Held by the Court of Appeal

  • The Court of Appeal allowed the claim and held that a mistake of fact which produces unfairness can be an individual ground of review in an appeal based on a point of law.

Carnwath LJ:

  • Carnwath LJ expressed that there may not be a real and material difference between ignorance of fact and unfairness and that ultimately there was unfairness present in this case, thereby allowing the appeal.
  • “In our view, the CICB case points the way to a separate ground of review, based on the principle of fairness. It is true that Lord Slynn distinguished between “ignorance of fact” and “unfairness” as grounds of review. However, we doubt if there is a real distinction. The decision turned, not on issues of fault or lack of fault on either side; it was sufficient that “objectively” there was unfairness.” [63]
  • “Accordingly, we think it is right for the appeals to be allowed on the narrow ground, that in each case the IAT wrongly failed to consider the new evidence in the context of its discretion to direct a rehearing. The matters will be remitted to the IAT to reconsider in the light of the principles set out in this judgement.”

Editor’s Notes

  • This was an important case which assisted the legal arena with determining the grounds on which judicial review could be brought on, particularly when considering mistake of fact.

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