[2025] UKUT 17 (AAC)

The scope of the Upper Tribunal’s fact-finding jurisdiction was analysed in the decision of the three-judge panel in PF v DBS [2020] UKUT 256 (AAC). That decision demonstrates that there is no limit to the form that a mistake of fact may take. It may consist of an incorrect finding, an incomplete finding or an omission. A mistake may be in a primary fact, or in an inference, but some mistake by the DBS must still be identified in order for an appeal to succeed. It is not enough that the Upper Tribunal would have made a different finding of fact. Furthermore, the Upper Tribunal, in deciding an appeal, is not limited to considering the appellant’s criticism of the DBS’s decision nor the evidence before the respondent, but it should assess the evidence as a whole, including the evidence that may be relevant to the reliability of the appellant’s evidence. The Court of Appeal has also provided further guidance in a series of cases on the role of the Upper Tribunal in fact-finding, including notably in DBS v JHB [2023] EWCA Civ 982, Kihembo v DBS [2023] EWCA Civ 1547 and DBS v RI [2024] EWCA Civ 95, which we also took into account.