The Court of Appeal has taken a restrictive approach to the admission of new evidence before the Upper Tribunal that was not available before the First-tier Tribunal. The case is Kabir v Secretary of State for the Home Department [2019] EWCA Civ 1162.

In Kabir, the First-tier Tribunal had refused an application made for an adjournment to obtain further evidence. Mr Kabir, having got his hands on that further evidence, then launched an appeal to the Upper Tribunal on the basis that the First-tier Tribunal should have granted an adjournment, but in any case that the Upper Tribunal should reconsider the decision using the fresh evidence. The Upper Tribunal refused.

The two related issues for the Court of Appeal were, first, was the adjournment refusal unlawful, and second, should the new evidence be admitted.

These issues arose in the context of a Tier 1 (Entrepreneur) application. There was a dispute about the authenticity of documents provided by Mr Kabir demonstrating the funds available to him. Mr Kabir and the Home Office contacted separate branches of the relevant bank and received conflicting answers about the authenticity of the documents.

The Home Office sent this evidence to Mr Kabir’s solicitors six weeks ahead of his appeal hearing. But its email did not say which client it was about and wasn’t passed on to the solicitor with conduct of his appeal. Lord Justice McCombe had little sympathy for Mr Kabir on this point:

The email did not identify the solicitors’ clients, but that could have been easily remedied by looking at the attachments or by the simple expedient of further enquiry of the Respondent’s Presenting Officers’ Unit.

McCombe LJ went on to hold that Mr Kabir had had ample opportunity to obtain further evidence in response to the unlabelled email from the Home Office, so the tribunal’s decision to refuse to adjourn the hearing was reasonable:

I find that it is impossible to criticise the FTT’s decision to refuse the Appellant’s request for adjournment on the material then available to it. There had been one previous adjournment and the Appellant’s solicitors had not taken the opportunity to seek out further evidence in the period that was open before the date of the appeal hearing. It was well within the proper exercise of the FTT’s wide discretion to grant or refuse adjournments to refuse the application in this case. There was no error of law in that decision.

After the adjournment had been refused, Mr Kabir’s solicitors obtained further evidence which cast doubt on the evidence relied upon by the Home Office. But the Upper Tribunal was correct to refuse to admit this new evidence:

The UT was, in my view, entitled to refuse the application in view of the failure to follow the correct procedure and to take into account the Ladd v Marshall principle that this new evidence could, with reasonable diligence, have been made available to the FTT on the initial appeal. I discern no error of law, therefore, on the UT’s part in the decision that the judge made in declining to admit the fresh evidence.

It is quite harsh for the court to rely on Mr Kabir’s failure to comply with the formalities of presenting new evidence, which had caused no prejudice to the Home Office, when he had himself been the victim of a failure by the Home Office to properly provide notice of the case against him.