The recent and important decision of ML (Nigeria) v SSHD [2013] EWCA Civ 844 ( http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2013/844.html&query=ML(Nigeria)&method=boolean) provides important guidance on situations where Judges get some of the facts badly wrong in their judgments.
Most practitioners will be familiar with cut and paste errors that can creep into decisions.
The prevailing view in such circumstances was that these errors that are known in legal parlance as: "errors of fact", would not usually be so important (material) to lead to a re-hearing of the case.
The important thing about this decision is that the Court indicated quite clearly that where a Judge has been particularly careless then this could amount to an error that could lead to a re-hearing of the case.
The key point the court decided when a case was heard was to ensure that an appellant had "a fair hearing".
In this case the Judge referred in his determination to having taken account of the appellant's screening and asylum interview and a skeleton argument when in fact there had been no screening or asylum interview nor a skeleton argument before him.
In addition to this, in summing up why the appellant should not return to Nigeria, the Judge indicated that he was attacked and injured by members of a Tamil party which supported the Sri Lankan government.
Initially when the mistakes of the Judge were challenged, the Upper Tribunal found that there were no material errors and allowed the decision to stand. As a result, the matter came before the Court of Appeal.
Notwithstanding the fact that (on the face of it) the appellant's case did not seem strong, it was clear that he had not a fair hearing.
The appellant in this case had come to the UK in 2004 and claimed asylum in what he later admitted was a bogus claim. He was removed to Nigeria in 2005 but subsequently re-entered the UK again coming to the attention of the authorities when he was arrested for a sexual offence against a woman and imprisoned for six months.
On his release he claimed asylum again, this time on the basis that he was a homosexual and would be at risk for that reason in Nigeria.
Notwithstanding the chequered immigration history of the appellant, the Court indicated that the key point was that the claimant was entitled to a fair hearing and even though it was a difficult case to win, it could not be said that (given the mistakes in the judgement) that he had had a fair hearing.
Especially in asylum cases where anxious scrutiny is a key requirement at all stages of the process, it is clear from this judgment that where there are such clear mistakes in determinations it will be open to the appellants to argue that there has not been a fair hearing of their case on the basis of such errors.
It will be interesting to see how the Upper Tribunal responds to these types of cases in light of the Court of Appeal judgment.