Ali v. Secretary of State for the Home Department

Publisher	United Kingdom: Court of Appeal (England and Wales)
Author	Court of Appeal (Civil Division)
Publication Date	1 March 1984
Citation / Document Symbol	[1984] 1 All ER 1009, [1984] 1 WLR 663, [1984] Imm AR 23
Cite as	Ali v. Secretary of State for the Home Department, [1984] 1 All ER 1009, [1984] 1 WLR 663, [1984] Imm AR 23, United Kingdom: Court of Appeal (England and Wales), 1 March 1984, available at: https://www.refworld.org/cases,GBR_CA_CIV,3ae6b6cb20.html [accessed 5 November 2019]
Disclaimer	This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

Ali v Secretary of State for the Home Department

COURT OF APPEAL, CIVIL DIVISION

[1984] 1 All ER 1009, [1984] 1 WLR 663, [1984] Imm AR 23

Hearing Date: 21 FEBRUARY, 1 MARCH 1984

1 MARCH 1984

Index Terms:

Court of Appeal -- Evidence -- Further evidence -- Principles on which received -- Application for judicial review -- Applicant seeking order of certiorari to quash decision of immigration officer -- Judge refusing application and applicant appealing -- Applicant seeking to adduce fresh evidence before Court of Appeal -- Evidence available at hearing before trial judge -- Whether fresh evidence should be admitted in appeal.

Immigration -- Detention -- Illegal entrant -- Burden of proof that entry illegal -- Immigration officials refusing entry clearance certificate because not accepting identity of applicant -- Applicant successfully appealing to adjudicator -- Applicant obtaining indefinite leave to enter United Kingdom -- Secretary of State obtaining further evidence casting doubt on applicant's identity -- Whether burden of proof on Secretary of State to show that on balance of probabilities that applicant an illegal entrant -- Whether further evidence obtained after adjudicator's decision showing that fraud practised on adjudicator.

Held:

The applicant was a citizen of Bangladesh. In 1973 the applicant's father, C, applied for entry clearance certificates for his wife and children, including the applicant. As a result of certain information and doubts that C was the father of the children, the applications were rejected. In March 1977 after the matter was fully investigated an adjudicator held that he was satisfied that C was in fact the father of the children and he allowed the appeal. The applicant was accordingly permitted to enter the United Kingdom. In 1983, as a result of further investigations, the Home Office decided that the applicant was not C's son and ordered his detention as an illegal entrant. The applicant applied for an order of judicial review. The Divisional Court found that, on the evidence which had come into existence since the adjudicator's decision, the Home Office had established that the applicant was not C's son and accordingly was an illegal entrant. The applicant appealed to the Court of Appeal and sought leave to adduce further evidence to support his case that he was C's son.

Held -- (1) Applying the principle that there should be finality in litigation, the Court of Appeal would refuse to allow fresh evidence to be adduced on an appeal from a decision of the Divisional Court on an application for judicial review unless the wider interests of justice required the fresh evidence to be admitted. It was an abuse of the process of the Court of Appeal to use an appeal as a means of retrying the originating application on different and better evidence, since the Court of Appeal was limited to deciding whether the Divisional Court's decision was right on the available evidence before it, unless there was new evidence which could not have been made available to the Divisional Court by the exercise of reasonable diligence or unless there was some other exceptional circumstance which justified the admission and consideration of the new evidence by the Court of Appeal. Since the fresh evidence had been clearly available and should have been placed before the Divisional Court, the evidence would not be admitted on appeal (see p 1014 c d f g and p 1017 d to g, post) Ladd v Marshall [1954] 3 All ER 745 and Re Tarling[1979] 1 All ER 981 applied.

(2) The onus was on the Secretary of State to prove to the satisfaction of the court that, on the balance of probabilities, the applicant was an illegal entrant. The degree of probability was proportionate to the gravity of the issue and, since the issue before the court involved the liberty of the subject, the degree of probability required was therefore high. Furthermore, the decision of the adjudicator, reached after an investigation on oral testimony, was not merely an element to be taken into account by the Divisional Court together with the new information resulting from the Home Office's investigations which had come into existence after that date instead, the Divisional Court had in effect to determine whether that new information showed that a fraud had been practised on the adjudicator or was such that it undermined the adjudicator's decision. On the facts and on the balance of probabilities, it had not been established that a fraud had been practised on the adjudicator. The appeal would therefore be allowed (see p 1011 c, p 1014 j to p 1015 e, p 1016 f to j and p 1017 c d and f, post) Khawaja v Secretary of State for the Home Dept [1983] 1 All ER 765 applied.

Notes:

For the power of the Court of Appeal to receive further evidence on questions of fact, see 37 Halsbury's Laws (4th edn) para 693, and for cases on the subject, see 37(3) Digest (Reissue) 183--191, 3963--3998. For judicial review generally, see 37 ibid paras 567--583. For illegal entry, see 4 Halsbury's Laws (4th edn) paras 976, 1027, and for detention of persons liable to be removed from the United Kingdom, see ibid para 1009.

Cases referred to in the Judgment:

Khawaja v Secretary of State for the Home Dept [1983] 1 All ER 765, [1984] AC 74, [1983] 2 WLR 321, HL.

Ladd v Marshall [1954] 3 All ER 745, [1954] 1 WLR 1489, CA. R v Secretary of State for the Environment, ex p Hackney London BC [1983] 3 All ER 358, [1983] 1 WLR 524, DC affd [1984] 1 All ER 956, CA. R v Secretary of State for the Home Dept, ex p Hussain [1978] 2 All ER 423, [1978] 1 WLR 700, CA.

R v Secretary of State for the Home Dept, ex p Miah (1983) Times, 19 July. Tarling, Re [1979] 1 All ER 981, [1979] 1 WLR 1417, DC.

Cases cited in the Judgment:

Leeder v Ellis [1952] 2 All ER 814, [1953] AC 52, PC.

Introduction:

Appeal

The applicant, Momin Ali, appealed against the decision of Webster J, hearing the Crown Office list, on 5 October 1983 whereby the judge dismissed an application for judicial review by way of an order for certiorari to bring up and quash the decision of an immigration officer dated 23 January 1983 that the applicant was an illegal entrant. The facts are set out in the judgment of Sir John Donaldson MR.d

Counsel:

Sakhawat Husain for the applicant.

John Laws for the Secretary of State.

Judgment-READ:

Cur adv vult

1 March. The following judgments were delivered.

PANEL: SIR JOHN DONALDSON MR, FOX AND STEPHEN BROWN LJJ

Judgment One:

SIR JOHN DONALDSON MR. Momin Ali, son of Cherag Ali, and Fozlu, son of Roquib Ali, are both citizens of Bangladesh. The applicant says that he is Momin. The Secretary of State says that he is Fozlu. If he is Momin, he has permission to stay in this country. If he is Fozlu, he is an illegal immigrant. Personation is a continual problem for the immigration authorities and it is much more of a problem when the immigrants come from a country without fully developed personal records. Immigration officers wrestle with the problem both at home and abroad and there is a system of appeals to specialist adjudicators, who have unrivalled experience. It is unfortunate that the instant application has arisen in circumstances in which the applicant has no right of appeal to an adjudicator, who would be better equipped to resolve the issues than is a court. It is even more unfortunate that this is not an isolated application. Ever since the decision in R v Secretary of State for the Home Dept, ex p Hussain [1978] 2 All ER 423, [1978] 1 WLR 700, immigration cases concerning illegal immigrants have formed a material part of the Crown Office list, but so long as the duty of the court was only to consider whether the decision was based on reasonable grounds, the task was manageable. However, in Khawaja v Secretary of State for the Home Dept [1983] 1 All ER 765, [1984] AC 74 the House of Lords redefined the supervisory duty of the court in three crucial respects. First, the issue ceased to be whether the Secretary of State had reasonable grounds for his decision and became whether his decision on illegality was justified. Second, the burden of justification was held to lie on the Secretary of State. Third, the standard of proof was held to be commensurate with the seriousness of an issue involving personal liberty. This is bound to result in a very considerable increase in the number of applications to the Divisional Court at a time when that court is already very fully occupied and it is for consideration whether it would not be more sensible and more efficient to arrange that they be heard by specialist adjudicators. This dispute as to the applicant's identity is of long standing. In October 1973 application was made to the British High Commission in Dacca for entry clearance certificates for Mr Cherag Ali, his wife and children, including Momin Ali. Mr Cherag Ali was successful on the basis that he was a returning resident. The applications of the others were adjourned because of allegations by an informant and, after further inquiries and the receipt of further allegations from the informant, all the applications were rejected. The basis for the rejection seems to have been doubts whether Mr Cherag Ali was the husband of the lady said to be his wife and whether he was the father of the children, including the present applicant.

There was an appeal to an adjudicator, who in March 1977 allowed the appeal and directed the issue of entry certificates. The applicant was then aged 21. It is clear from the adjudicator's decision that the matter was very fully and carefully investigated. The adjudicator correctly directed himself that the burden of proof lay on Mr Cherag Ali and those who claimed to be his relations to satisfy him that they were indeed his wife and children. The adjudicator recorded that they had discharged this burden.

On the strength of this decision, the applicant was permitted to enter this country without limitation on the duration of his stay. The Home Office now say that they had grave doubts about the correctness of that decision, but did not appeal. The plain fact is that they could not appeal, because the adjudicator made no error of law and they had to have further evidence before they could bypass the adjudicator's decision. All went well for two years, but then the Home Office was informed, by what was called a 'police informant', that the applicant was not the son of Cherag Ali as he claimed, but really a nephew, Fozlu, son of Roquib Ali. I do not know anything about the source of the information, the circumstantial details supplied or the apparent reliability of the source, but it is reasonably clear that this was the same allegation as had earlier been made and investigated and rejected by the adjudicator, who had been told, and may well have accepted, that there were many people of Mr Cherag Ali's village who were jealous of the progress which his family had made. For whatever reason, in June 1979 the Home Office decided to take the matter further and the applicant was detained briefly and interviewed by an immigration officer, who also interviewed Mr Cherag Ali. It emerged that the applicant had not been living with Mr Cherag Ali for the past six months, because Mr Cherag Ali disapproved of his drinking habits. Nevertheless, Mr Cherag Ali was able to produce the applicant's passport. The immigration officer doubted whether Mr Cherag Ali's wife was old enough to be the mother of the applicant, but the matter which really aroused his suspicions was the fact that the applicant did not know the name of the baby who had been born nine months before and who must have been in the same house with him for three months. I share the immigration officer's surprise, but since it is common ground that the applicant was living in the house with the baby for three months, I would have expected him to know the baby's name whether or not it was his brother.

The applicant was released after a few hours and later his passport was returned to him. He thought, not unreasonably, that the incident was closed. In this he was gravely mistaken.

The following year the applicant visited Bagladesh and at about the same time the British High Commission, on instructions from the Home Office, mounted what can only be described as an 'expedition' to the applicant's home village of Holimpur. There were no less than four entry clearance officers involved, travelling in two Land Rovers. For the last three miles they had to walk and cross two rivers, one by boat and the other by way of what is described as 'a rather precarious bamboo bridge'. It is clear that the local inhabitants regarded them with hostility and at one stage they had to beat a strategic retreat. They were armed with photographs of the applicant and of two other people who were, or claimed to be, sons of Mr Cherag Ali and therefore brothers of the applicant, if he was who he claimed to be. However, it seems probably that the photograph of the applicant was one which had been taken eight years before, when he was 16. What they may not have anticipated was that they would meet the applicant, but this is what happened.

Just outside the village the applicant came from the direction of the bazaar and introduced himself. He asked whether they were making inquiries in connection with his family and, on being told that this was so, invited them to visit Mr Cherag Ali's compound. Two officers went with him and two went to other compounds.

The two who went to the Cherag Ali compound seemed to have concentrated on determining whether the applicant was staying there and disbelieved him when he said that he was. The basis of their disbelief was that he did not seem to have any spare clothes, other than a shirt, and had no washing things. He also had some women's clothing in a suitcase which bore someone else's name and which he said that he had borrowed. The clothing was said to be gifts which he had brought with him. So far as identification was concerned, one villager in this compound identified the applicant as Fozlu, but the rest said that he was Momin. The report relies heavily on this identification as Fozlu and dismisses the contrary identifications with the words, 'The rest of the family all agreed the sponsor's story as naturally they would'.

The officers who went to other compounds had to rely on their photographs and it is fair to say that there were several identifications of the old photograph of Momin as being Fozlu.

The officers clearly had difficulty in getting answers to their questions, but whether this was a sign of hostility to their invasion of the village or whether, as they thought, it was due to a briefing by or on behalf of the applicant may be a matter for conjecture. It may, of course, have been partly one and partly the other. What is, I think, clear is that the entry clearance officers did not go to the village with an open mind. They clearly believed their informants and were going there in order to establish that the applicant was Fozlu and not Momin. This approach is understandable. The Dacca entry clearance officers probably had always thought that the claims of Mr Cherag Ali to be the father of the applicant were fraudulent, but they had been overruled by an adjudicator in London, who was not as familiar with local conditions. On the strength of this report, the interview with the applicant in June 1979 when he did not know the name of the baby, and the fact that there had been many statements made to the Home Office between 1974 and 1979 that the applicant was not the son of Mr Cherag Ali, the Home Office then decided that the applicant was an illegal immigrant and authorised his detention. However, he could not be traced until 27 January 1983 when he was arrested. The matter was somewhat complicated by the fact that, when arrested, the applicant told the immigration officers that he had married a United Kingdom resident in April 1982, by whom he had a son. The suggestion seems to be that this marriage was effected in order to provide a second line of defence to any attempt to deport him, but, if so, it suffered from a number of defects, not least the fact that there was some evidence that one or other or both parties of the marriage may thereby have been committing bigamy.

The applicant was released on bail when he applied for judicial review and his application was heard by Webster J on 5 October 1983. The judge dismissed his application and he was rearrested. He is now in custody and we have to determine his appeal.

The judge founded his decision on two matters. The first was the results achieved by the 'expedition', saying that if the applicant had in fact been the son of Mr Cherag Ali he would have been residing in the village to which he belonged and that it was clear that he was not so residing. The second matter was his ignorance of the baby's name. Somewhat surprisingly the only evidence filed in support of the application was an affidavit by Mr Cherag Ali asserting that the applicant was indeed his son and relying on the decision of the adjudicator. This led the judge to say:

'Counsel for the Secretary of State also relied, with a very slight emphasis, on the fact that no evidence has been adduced on this application by the applicant in order to rebut the inferences drawn from the evidence adduced on behalf of the Secretary of State. Again, for my part, I do not place much reliance on that. Of course, it is the case that the only evidence that I have before me and the only evidence that the various immigration officers had before them that the applicant was an illegal entrant was the evidence relied on by the Secretary of State. I say that with one qualification. At all material times, there has been available to the immigration authorities and to the Secretary of State, a decision of an adjudicator, which is dated 14 March 1977. That decision arose in these circumstances. In October 1973, Cherag Ali, the applicant's sponsor, applied for an entry clearance certificate in Dacca to enable his wife and five of his purported children, including this applicant, to join him in this country. That certificate was refused and the wife and the five children appealed to the adjudicator against that refusal. The adjudicator allowed that appeal. He gave his determination and reasons at some length when he did so. Counsel for the applicant places reliance on that decision and on the reasons for it. However, although it is right that that decision should not be disregarded, none the less the evidence to which the immigration officer, the Secretary of State and I have had primary regard is the evidence which has come into existence since that date. Taking into account that evidence, I am satisfied that the Secretary of State has established from the material before him, which is now before me, to a high degree of probablility, that the applicant was not Momin Ali, the son of Cherag Ali, as he purported to be when he entered this country in 1977 and again in 1980, but was Fozlu Ali, the son of Roquib Ali. Accordingly, he was an illegal entrant when he entered on both these occasions.'

On the hearing of this appeal, the applicant sought to supplement the evidence available to the judge by his own affidavit offering a full explanation of events when he met the entry clearance officers in Bangladesh, by an affidavit from the applicant's sister and by no less than ten other affidavits which one way or another support his case. His solicitor, in a further affidavit, explained that the reason why none of this evidence was placed before the judge was that 'It was felt that the case of the applicant was strong enough and that the evidence now adduced was not necessary'.

This at once raised the question of whether this court, in hearing an appeal from the Divisional Court in a claim for judicial review, should apply the principles set out in the judgments in Ladd v Marshall [1954] 3 All ER 745 at 748, [1954] 1 WLR 1489 at 1491. They are, per Denning LJ, that--

'first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive: third, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, although it need not be incontrovertible.'

We refused to allow the evidence to be admitted. In my judgment the evidence met the second and third criteria, but manifestly did not meet the first. Just as I think that the doctrine of issue estoppel has, as such, no place in public law and judicial review (see v Secretary of State, ex p Hackney London BC [1983] 3 All ER 358, [1983] 1 WLR 524, [1984] 1 All ER 956, CA), so I think that the decision in Ladd v Marshall has, as such, no place in that context. However I think that the principles which underlie issue estoppel and the decision in Ladd v Marshall, namely that there must be finality in litigation, are applicable, subject always to the discretion of the court to depart from them if the wider interests of justice so require. In expressing this conclusion, I find myself in complete agreement, mutatis mutandis, with the judgment of the Divisional Court, given by Gibson J, in Re Tarling [1979] 1 All ER 981 at 987, [1979] 1 WLR 147 at 1422--1423, when he said:

'Firstly, it is clear to the court that an applicant for habeas corpus is required to put forward on his initial application the whole of the case which is then fairly available to him. He is not free to advance an application on one ground, and to keep back a separate ground of application as a basis for a second or renewed application to the court. The true doctrine of estoppel known as res judicata does not apply to the decision of this court on an application for habeas corpus . . . There is, however, a wider sense in which the doctrine of res judicata may be applicable, whereby it becomes an abuse of process to raise in subsequent proceedings matters which could, and therefore should, have been litigated in earlier proceedings . . .'

This fresh evidence was clearly available and should have been placed before Webster J. It is not the function of this court, as an appellate court, to retry an originating application on different and better evidence. We are concerned to decide whether the trial judge's decision was right on the materials available to him, unless the new evidence could not have been made available to him by the exercise of reasonable diligence or there is some other exceptional circumstance which justifies its admission and consideration by this court. That is not this case.

I return, therefore, to a consideration of the judge's judgment on the basis of the materials available to him. In R v Secretary of State for the Home Dept, ex p Miah (1983) Times, 13 July, Woolf J was also confronted with a situation in which the main issue had been considered by an adjudicator. He said:

'Having regard to the fact that the matter has previously been before the adjudicator, who has considered the merits and heard evidence on oath, it seems to me only right that in considering all the evidence now in the way directed by the House of Lords, I should primarily devote my attention to the material which has come to the knowledge of and is available to the Home Office now, which was not available to the Home Office when they appeared before the adjudicator. Having regard largely to that evidence, considered against the background of their previous evidence, I have to come to a conclusion, in effect, whether or not I am satisfied that a fraud was practised on the adjudicator. I certainly have to consider whether the evidence which is now available is such that it undermines that decision of the adjudicator.'

In my judgment this approach is right and it is not the one adopted by the judge. The standard of proof required by the House of Lords where there has been no previous adjudication is that appropriate to an allegation of a serious character and one involving the liberty of the subject. Here an even higher standard is required, because the starting point is a binding decision of an appropriate tribunal in favour of the applicant. That decision may not render the issue of his status res judicata, but it comes very close to it. If it is to be reversed, the Home Office must prove fraud to a standard appropriate to such an allegation.

The judge's approach was to examine the evidence and then add in the decision of the adjudicator as something in the nature of a makeweight. This seems to me to be wholly wrong.

I would accept that the evidence adduced by the Home Office, coupled with the failure by the applicant to produce significant rebutting evidence (he did not himself file any affidavit) gives rise to serious doubts. But doubts are one thing. Finding fraud is quite another. The evidence about the name of the baby is trivial once it is accepted that the applicant lived in the same household. The evidence from Bangladesh is more substantial, but we only have the report of the entry clearance officers who, in my view, were not inquiring, so much as seeking confirmation for a preconceived view. Furthermore, the cross-currents of a population, some of whom were suspicious of the entry clearance officers and some of whom were probably antipathetic to the Cherag Ali family, are likely to muddy the river of truth at the best of times and what emerged seems to me to be quite insufficient to find fraud on the part of an applicant who, on the face of a decision that he was genuine, has come to this country in 1977 and settled here for seven years.

I would allow the appeal and quash the decision of the Secretary of State.

Judgment Two:

FOX LJ. Cherag Ali came to the United Kingdom in 1963 or thereabouts. In 1973 application was made to the British High Commission, Dacca, for entry certificates to the United Kingdom to enable six persons, namely Sofia Katun and Momin, Nojib, Rahman and Shobib Ali and Salema Katun, to join Cherag Ali here. The application was on the basis that Sofia was the wife of Cherag and that the others were his children. Momin Ali is the present applicant. That application was refused because the Secretary of State was not satisfied that the six applicants were related to Cherag. In particular it appears from para 3 of the affidavit of Mr Mould, one of the immigration officers, filed on the present application, that the entry clearance officer had received information that, inter alia, the present applicant was not Cherag's son. The six applicants then appealed to the adjudicator.

The adjudicator gave a very full written decision in March 1977. The adjudicator, on the third page of his decision, refers to letters 'which suggested that some of the applicants were imposters'.

Cherag gave evidence before the adjudicator for four hours and was cross-examined. Accepting that the burden of proof was on the applicants, the adjudicator nevertheless found that, on the balance of probabilities, the burden was discharged and that the appellants were the persons they claimed to be. He therefore directed entry certificates be issued. All the applicants were duly granted leave in July 1977 to enter the United Kingdom for an indefinite period. In 1979 the Home Office received information from 'a police informant' that Momin, the present applicant, and his brother Nojib were not the sons of Cherag but were nephews. The Secretary of State's case is that the applicant is the son of Roquib Ali. We do not know, in any further detail, the nature of the information so supplied. However, in consequence of that information, the Home Office instituted further inquiries. These were, as to part, in England and part in Bangladesh.

In England it was ascertained that the applicant was no longer living with Cherag. That was in June 1979 he had ceased to live with Cherag about six months earlier. It appears that the applicant did not know the name of the baby born to Cherag three months before the applicant's departure from Cherag's home. In 1980 the applicant visited Bangladesh. At the same time the British High Commission instructed four entry clearance officers to visit Holimpur, which was the applicant's village, and make enquiries about his identity. On arrival at the village the four officers split into two groups. One group visited Cherag's compound. The applicant went with them. He was asked if he slept there and he said he did. He produced a suitcase to prove it. The suitcase bore the name of another person (who, he said, had lent it to him) and which contained women's clothing which he said he had bought as gifts. When asked where his own clothes were he produced one shirt and said the rest were at the laundry. In the house was a man named Ilias Ali. When asked who was Fozlu, son of Roquib Ali, he pointed to the applicant. However, the report of the entry officer says: 'The rest of the family all agreed the sponsor's [Cherag's] story as naturally they would.'

The other group of two entry officers visited another compound. In relation to the identification of photographs by this group the following occurred according to the officer's report. (i) Waris Ali identified a photograph of the applicant as being Fozlu, the son of Roquib Ali. (ii) Moskondor Ali identified the photograph as being Fozlu, but said he was the son of Cherag. (iii) Shawkat Ali did not recognise Momin's photograph. Subsequently he asked to see the photograph again and identified Momin as the son of Cherag because he saw him in Cherag's house in the United Kingdom. (iv) Haris Ali identified the applicant's photograph as Fozlu, son of Roquib Ali. (v) Moh'd Abdul, a member of the Union Council, identified a photograph of the applicant as that of a son of Roquib Ali (name unknown) of the village of Debarachak, which is a village in his district as also is Holimpur. (vi) Abdul Aziz could not recognise a photograph of the applicant. (vii) Monhor Noquib could not identify a photograph of the applicant but said he was not a son of Cherag.

Since we refused leave to the applicant to file further evidence on the hearing of this appeal, the only evidence filed on his behalf is the affidavit in support of the application for judicial review. That affidavit was, however, sworn by Cherag who deposes that the applicant is his son by Sofia. The onus is on the Secretary of State to prove to the satisfaction of the court that, on the balance of probabilities, the applicant is an illegal entrant. The degree of probability is proportionate to the gravity of the issue and, since the present issue involves the liberty of the subject, the degree of probability required is high (see Khawaja v Secretary of State for the Home Dept [1983] 1 All ER 765, [1984] AC 74).

The judge, in considering the proper approach to the case said that, while the decision of the adjudicator should not be disregarded, nevertheless the evidence to which the immigration officer, the Secretary of State and he himself had primary regard was the evidence that had come into existence since that date. I do not feel able to agree with that. I think it attaches insufficient importance to the decision of the adjudicator reached after an investigation on oral testimony. In my opinion the adjudicator's decision is not merely an element to be taken into account together with the new evidence. It is of more fundamental importance than that. Of course, all the evidence must be considered but I agree with the view expressed by Woolf J in R v Secretary of State for the Home Dept, ex p Miah (1983) Times, 19 July that, in such a case, the court has to come to a conclusion, in effect, whether or not it is satisfied that a fraud was practised on the adjudicator. He cannot have been innocently misled.

In approaching these problems, it is necessary to be clear as to the function of the four entry clearance officers who visited Cherag's village. That they were engaged on an honest search for facts I do not doubt. But they were sent on behalf of one party to what was likely to become, if it was not already, an active dispute. They were not engaged on an independent judicial inquiry. That is not a criticism of them at all but it needs to be kept in mind when, for example, one considers their statement that 'the rest of family all agreed the sponsor's story as naturally they would'.

Looking at the whole of the facts, it seems to me that there are substantial indications both ways. Some of the villagers identified the applicant's photograph as that of Fozlu. One could not recognise the photograph of the applicant. On the other hand, some members of Cherag's family supported Cherag's case. And two villagers identifed the photograph as a son of Cherag. Then there is Cherag himself. He, at least, knows the truth. He gave evidence for four hours before the adjudicator and was subjected to what the adjudicator described as 'testing' cross-examination. The adjudicator, at the end of it all, said that he found nothing sufficient to say that Cherag's evidence on the whole was not credible. Further, Cherag in the present proceedings has sworn that the applicant is his son.

The evidence that the applicant could not state the name of the baby (which is odd on any view of the case since he was living in the house for three months after the child was born) and the episode of the suitcase do not seem to me to take the matter much further.

At the end, I am not satisfied on the balance of probabilities, and to the high standard which the nature of the case requires, that the adjudicator was deceived. It is possible that he was, but I am left in doubt about it since the Secretary of State's evidence on this application is not tested by cross-examination and, in any event, is not all one way. I would allow the appeal accordingly.

As to the principles applicable to the admission of further evidence in such cases as this, I agree with Sir John Donaldson MR. But accepting the existence of a wider discretion in the court to admit fresh evidence on this appeal than exists in ordinary civil litigation, I see no reason to exercise it in favour of the applicant here. The court is exercising appellate jurisdiction from the decision of the judge. It is not a jurisdiction to rehear the whole case on new evidence. The evidence now sought to be adduced could perfectly well have been placed before the judge.

Judgment Three:

STEPHEN BROWN LJ. I have had the advantage of reading the judgments of Sir John Donaldson MR and of Fox LJ. I agree that the appeal should be allowed for the reasons which they give. I also agree that the further evidence sought to be admitted on behalf of the appellant should not be admitted. The issue in the present case was entirely one of fact and in my judgment the principles underlying the decision in Ladd v Marshall [1954] 3 All ER 745, [1954] 1 WLR 1489 should apply.

DISPOSITION:

Appeal allowed.

SOLICITORS:

BC Mascarenhas, Wood Green (for the applicant); Treasury Solicitor.