The Court of Appeal gives guidance on the applications to adduce new evidence at the Upper Tribunal

The Court of Appeal gives guidance on the applications to adduce new evidence at the Upper Tribunal

CategoryNews Author Zane Malik KC Date

The Court of Appeal (Underhill LJ, Vice President of the Court of Appeal Civil Division, McCombe LJ and Hasson-Cave LJ) hand downs its judgment in Kabir v Secretary of State for the Home Department [2019] EWCA Civ 1162. The Court of Appeal considered issues arising from the Appellant’s request made to the Upper Tribunal, on a statutory appeal, to consider documentary evidence that was not before the First Tier Tribunal. The Upper Tribunal had declined to admit that fresh evidence and the Appellant sought to argue that it was wrong in law.

The case involved an allegation that the Appellant had submitted false documents (a bank letter and statement) purportedly issued by BRAC Bank in Bangladesh in support of an application for leave to remain as a Tier 1 (Entrepreneur) Migrant.

The Court of Appeal, in summary, held that: (1) A party wishing to adduce new evidence in an appeal to the Upper Tribunal “must” send or deliver a notice to the Upper Tribunal and any other party stating the nature of the evidence and explaining why it was not submitted to the First Tier Tribunal, and it is not sufficient to attach fresh evidence with the grounds of appeal. (2) In considering whether to admit fresh evidence on appeal, the Upper Tribunal should apply Ladd v Marshall principle.

On the facts of this case, the Court of Appeal held that the Upper Tribunal was entitled to refuse the Appellant’s request to admit fresh evidence in view of the failure to follow the correct procedure and to take into account the Ladd v Marshall principle that this new evidence could, with reasonable diligence, have been made available to the First Tier Tribunal on the initial appeal.

Zane Malik appeared for the Secretary of State for Home Department.

Full judgment is available here

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