[2024] UKUT 238 (AAC)

It is convenient at this stage to consider BK (Afghanistan), and related case law, in a little more detail before turning to discuss the grounds of appeal. It was not argued before the FTT and so has not been subject of any consideration by that tribunal, but the broad considerations arising under it are similar to those that arose under the estoppel argument which was made to the FTT.

As I have said above, the estoppel argument was not pursued before me. This was on the basis that estoppel not applying in or between First-tier Tribunals is the binding legal effect of BK (Afghanistan) (at paragraphs [37], [39] and [44]) Sultana v SSHD [2021] EWCA Civ 1876 (at [35] and [49]-50]) and SSHD v Patel [2022] EWCA Civ 36 (at 31]). I proceed on that basis in deciding this appeal.

All of the above three decisions of the Court of Appeal arose in the context of adjudication on immigration claims, latterly in the First-tier Tribunal (Immigration and Asylum Chamber). The important foundational basis of all three decisions of the Court of Appeal is that the first adjudicator or First-tier Tribunal had made a material finding of fact in deciding the appeal before them and that issue of fact then became relevant in later and separate appeal proceedings (possibly involving different parties, though the Secretary of State would be the same respondent) before a second adjudicator or First-tier Tribunal. The issue of law that arose was the extent to which the second adjudicator or First-tier Tribunal was bound to accept the finding of fact.

The eight factors set out in BK (Afghanistan) are derived from Deveseelan v SSHD [2002] UKIAT 702, and are as follows:

“(1)

The first adjudicator's determination should always be the starting-point. It is the authoritative assessment of the appellant's status at the time it was made. In principle issues such as whether the appellant was properly represented, or whether he gave evidence, are irrelevant to this.

(2)

Facts happening since the first adjudicator's determination can always be taken into account by the second adjudicator.

(3)

Facts happening before the first adjudicator's determination but having no relevance to the issues before him can always be taken into account by the second adjudicator.

(4)

Facts personal to the appellant that were not brought to the attention of the first adjudicator, although they were relevant to the issues before him, should be treated by the second adjudicator with the greatest circumspection.

(5)

Evidence of other facts, for example country evidence, may not suffer from the same concerns as to credibility, but should be treated with caution.

(6)

If before the second adjudicator the appellant relies on facts that are not materially different from those put to the first adjudicator, the second adjudicator should regard the issues as settled by the first adjudicator's determination and make his findings in line with that determination rather than allowing the matter to be re-litigated.

(7)

The force of the reasoning underlying guidelines (4) and (6) is greatly reduced if there is some very good reason why the appellant's failure to adduce relevant evidence before the first adjudicator should not be, as it were, held against him. Such reasons will be rare.

(8)

The foregoing does not cover every possibility. By covering the major categories into which second appeals fall, the guidance is intended to indicate the principles for dealing with such appeals. It will be for the second adjudicator to decide which of them is or are appropriate in any given case.”

It is important to stress a number of points about the eight Devaseelan factors summarised in paragraph [32] of BK (Afghanistan).

First, they were preceded, in para. [31], with a discussion of the case in Devaseelan. That context was:

“31…..The proper approach of the second tribunal should reflect the fact that the first adjudicator's determination stands as an assessment of the claim that the appellant was then making at the time of that determination. It is not binding on the second adjudicator but on the other hand the second adjudicator is not hearing an appeal against it. It is not the second adjudicator's role to consider arguments intended to undermine the first adjudicator's determination but the second adjudicator must be careful to recognise that the issue before him is not the issue that was before the first adjudicator:

"38.

… In particular, time has passed; and the situation at the time of the second adjudicator's determination may be shown to be different from that which obtained previously."”

Second, they are dependent on, here, the (first) First-tier Tribunal having made a finding of fact in its decision on the appeal before it which the FTT may have needed to reconsider in deciding the appeal which was before it. (Given estoppel is not in play, the appellant accepts that as a matter of law the FTT was not bound by any finding of fact made by the (first) First-tier Tribunal.)

Third, the factors are guidelines. They are not laying down any strict legal code that must be followed.

Fourth, the guidelines seek to ensure consistency of approach by decision makers and respect finality of litigation. However, finality of litigation is subject always to the discretion of the tribunal (or court) if wider interests of justice so require. And, per paragraph [30] of Djebbar v SSHD [2004] EWCA Civ 804, “perhaps the most important feature of the guidance is that the fundamental obligation of every [First-tier Tribunal] independently to decide each new application on its own individual merits was preserved”: per paragraphs [34]-[39] of BK Afghanistan.

Fifth, the first decision or finding of fact is a starting point, it is not determinative: para. [43] of BK Afghanistan. This in my judgement very significantly waters down what was said in TK (see paragraph 40 above). However, the case law still emphasises that 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”: per paragraph [37] of Patel.

Sixth, the key consideration is fairness. This is made clear from paragraph [44] in BK (Afghanistan) where the Court of Appeal said that it did not:

“44…accept that in addressing the question of whether the finding of fact should be carried forward in that way, the tribunal is only entitled to look at material which either post-dates the earlier tribunal's decision or which was not relevant to the earlier tribunal's determination. To restrict the second tribunal in that way would be inconsistent with the recognition in the case law that every tribunal must conscientiously decide the case in front of them. The basis for the guidance is not estoppel or res judicata but fairness. A tribunal must be alive to the unfairness to the opposing party of having to relitigate a point on which they have previously succeeded particularly where the point was not then challenged on appeal. (The underlining is mine and has been added for emphasis.)

See further, Sultana at paragraph [50] and (as set out in paragraph 47 above) Patel at paragraph [31].

I need to make one final observation about this BK Afghanistan line of case law. The Secretary of State accepted for the purposes of this appeal that that line of case law applies to equal effect in the War Pensions and Armed Forces Compensation Chamber of the First-tier Tribunal. I have, accordingly, not heard any argument to the contrary, and I proceed on that same assumed basis. However, I am mindful that the same policy considerations that led to the BK Afghanistan line of case law (e.g., per paragraph [27] of Ocampo v SSHD [2006], as well as fairness, the “maintenance of proper immigration control”) may not have an analogue in armed forces compensation appeals. The approach of the Court of Appeal in the Duncan and McWilliams case which I discuss immediately below, as well as the possible application of a similar rule to that set out by Baroness Hale in paragraph [41] of Gillies v SSWP [2006] UKHL 2 (that the system tries to ensure that the claimant receives the correct award of benefit), might suggest a different approach may apply in AFCS (and War Pensions) appeals.