Secretary of State for the Home Department v Krupaliben Patel

25/01/2022

Citation

[2022] EWCA Civ 36

Dates of case

21.1.22

Nicholas Chapman acted for the Secretary of State in an important case concerning the principles of finality, res judicata and issue estoppel in the Tribunal jurisdiction, and the circumstances in which the Tribunal can permissibly depart from previous findings in cases involving different parties with a material overlap of evidence.

The Appellant argued that the Upper Tribunal had been bound to adopt the earlier findings of fact made by the First-tier Tribunal in determining her husband’s immigration appeal.  She contended it was not entitled to take into account additional evidence which could and should have been adduced for the purposes of that earlier appeal.

The Court of Appeal refused the appeal, instead adopting the submissions made on behalf of the Secretary of State as to the guiding principles:

• Where there are different parties but with a material overlap of evidence, the Devaseelan principles of fairness apply with appropriate modification.
• What fairness requires will depend on the particular facts of the case. The findings at an earlier FTT hearing will be an important starting point but the second FTT judge cannot avoid the obligation to address the merits of the case on the evidence then available.
• The second FTT judge necessarily will look for a very good reason to depart from the earlier findings. Whether the evidence could have been adduced at the previous hearing may be relevant to that issue. Equally, a very good reason may be that the new evidence is so cogent and compelling as to justify a different finding.

The judgment can be viewed here.