“She subsequently attended our office for a read back of the substantive interview. We would now like to make the following further representations on her behalf. We must start by informing you that our client has informed us that on the day of the substantive interview your interpreter did not interpret all questions correctly. After the interview our client consulted her brother in law regarding some of the questions and noted that some questions asked were interpreted completely differently.”
“Our client agreed that your interpreter on the day was fully understood as she did not realise that the questions she was answering were at some points completely different to what you were asking.”
“I find that this case turns upon the credibility of the Appellant’s claim to be a Coptic Christian and the credibility of her claim that she was raped in April 2008 by three police officers, that in November 2008 she was arrested at her home by police officers following the release in the USA of the video defaming the Prophet Mohammed, that in September 2012 she was arrested again at her home by police officers who attempted to rape her and finally upon the credibility of her claim that since her arrival in the UK the same police officers have been repeatedly visiting her mother’s home and that one of the police officers has been demanding that the Appellant becomes his girlfriend and that if she refuses to do so he will ensure that she becomes everybody’s girlfriend.”
“She was asked by [the HOPO] when it came to her attention that the interview record was wrong and she replied that it was three or four hours after the interview when she had gone through the interview record with her brother in law ….. She was asked why neither she nor her solicitors had contacted the Home Office to inform them that the interview record was wrong ….. The Appellant stated that she discussed this issue with her solicitor who told her that she would send a letter to the Home Office pointing out the mistake.”
“It is sufficient if an Applicant can establish that there is a real, as opposed to a purely minimal, possibility that the outcome would have been different.”
“Judges of high authority have held that the subject of a decision who has been denied a right to be heard cannot complain of a breach of natural justice (or unfairness) unless he can show that the decision might have been different if he had been heard.” [Emphasis added.]
“While cases may no doubt arise in which it can properly be said that denying the subject of a decision an adequate opportunity to put his case is not in all the circumstances unfair, I would expect these cases of be of great rarity.” [Our emphasis.] The reasons formulated by Bingham LJ in support of this proposition included the following: “(1) Unless the subject of the decision has had an opportunity to put his case it may not be easy to know what case he could or would have put if he had had the chance. (2) … Experience shows that that which is confidently expected is by no means always that which happens …. (4) In considering whether the complainant’s representations would have made any difference to the outcome, the Court may unconsciously stray from its proper province of reviewing the propriety of the decision making process into the forbidden territory of evaluating the substantial merits of a decision. (5). This is a field in which appearances are generally thought to matter. (6). Where a decision maker is under a duty to act fairly the subject of the decision may properly be said to have a right to be heard and rights are not to be lightly denied.”
“For the purposes of subsection (2), the reference to a right of appeal is to a right of appeal to the Upper Tribunal on any point of law arising from a decision made by the First-Tier Tribunal other than an excluded decision.”
“[63] In our view, the CICB case points to the way to a separate ground of review, based on the principle of fairness …. the unfairness arose from the combination of five factors: (i). An erroneous impression created by a mistake as to, or ignorance of, a relevant fact (the availability of reliable evidence to support her case); (ii). The fact was ‘established’, in the sense that, if attention had been drawn to the point, the correct position could have been shown by objective and uncontentious evidence; (iii). The Claimant could not fairly be held responsible for the error; (iv). Although there was no duty on the Board itself, or the police, to do the Claimant’s work of proving her case, all the participants had a shared interest in co-operating to achieve the correct result. (v). The mistaken impression played a material part in the reasoning.”
“[64] It is in the interests of all parties that decisions should be made on the best available information.”
“[66] In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result. Asylum law is undoubtedly such an area. Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are apparent from the above analysis of CICB. First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been ‘established’, in the sense that it was uncontentious and objectively verifiable. Thirdly, the Appellant (or his advisors) must not have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the Tribunal’s reasoning.”
“[26] The third strand of principle is that statutory power, although expressed in general terms, should not be construed so as to authorise acts which infringe the basic rules and principles of the common law. Parliament is presumed not to have intended to change the common law unless it has clearly indicated that intention either expressly or by necessary implication: R v Secretary of State for the Home Department, Ex parte Pierson[1998] AC 539 , 573E-F, 575D, per Lord Browne-Wilkinson. In his judgment in the same case Lord Steyn stated the principle broadly: "Unless there is the clearest provision to the contrary, Parliament must be presumed not to legislate contrary to the rule of law. And the rule of law enforces minimum standards of fairness, both substantive and procedural": 591F.”
“… The duty of fairness imposed on the Tribunal is thus more likely to be derived from the high common law standards of fairness applied by the higher courts….”