[2025] UKUT 221 (AAC)

DBS submit that the nature of the Upper Tribunal’s factual jurisdiction, on an appeal against a barring decision, was clarified by several Court of Appeal authorities:AB v DBS (2021) EWCA Civ. 1575; Kihembo v DBS (2023) EWCA Civ. 1574; DBS v JHB (2023) EWCA Civ. 982; and DBS v RI [2024] EWCA Civ. 95. Those authorities establish the following propositions:

the Upper Tribunal is entitled to find that an appellant’s denial of wrongdoing is credible, such that it is a mistake of fact to find that he/she did the impugned act. In so doing, the Upper Tribunal is entitled to hear oral evidence from an appellant and to assess it against the documentary evidence on which DBS’ decision relied. That is different from merely reviewing the evidence that was before the DBS and coming to different conclusions (which is not open to the Upper Tribunal). In most cases, in order to establish a material mistake of fact the Appellant will need to adduce new evidence not before the original decision maker that materially affects the outcome of the decision. New evidence is very unlikely to include the Appellant giving oral evidence that simply maintains existing denials;

the Upper Tribunal must identify an error of fact in the findings on which the decision was based. The Upper Tribunal is not free to make its own assessment of the written evidence unless, and until, it finds such an error. It cannot simply examine the same materials as were before DBS and come to a different conclusion;