Held, appeal allowed. (1) While it was now common ground that the slip rule applied, the fact that the claimant had thought it necessary to mount an appeal to have the error corrected gave rise to a point of some general importance. The essential distinction to bear in mind in considering the application of the slip rule, in any of its legislative formulations, was between the case where the order in question did not express what the court actually intended at the moment of promulgation and the case where it did express what the court intended at the time but it subsequently appreciated that it should have intended something different. How the distinction applied in a particular case might not always be straightforward, but the concept was clear. It was simply wrong that the slip rule could not be used in a case where the correction would produce a decision with the opposite effect to that promulgated. In the case of a simple failure of expression, most obviously a straightforward slip of the pen, the error could and should be corrected even if it altered the outcome. The Upper Tribunal judge was wrong to find that the Secretary of State had failed to exercise a right to appeal. That course was not open to her because she was (ostensibly) the winning party. Section 11 (2) of the Tribunals, Courts and Enforcement Act 2007 was intended to confer a right of appeal only against some aspect of the actual order of the First-tier Tribunal, and the phrase “any party” must be read as referring only to a party who had in that sense lost. On a purposive construction, the effect of rule 24 of the 2018 Rules was that, in a case where a respondent wished to rely on a ground on which they were unsuccessful below, they were under an obligation to provide a response to the notice of appeal. In the interests of fairness and in accordance with the overriding objective (see rule 2) it had been necessary for the Secretary of State to put the claimant and the tribunal on notice in advance of the hearing that if he succeeded in showing that the First-tier Tribunal intended to allow the appeal she would argue that that intended decision was wrong. That notice would most appropriately have been given by providing a rule 24 response sooner than the deadline under paragraph (2) (a), but it would have been acceptable for the point to be made in correspondence or, as the judge said, in a skeleton argument. That was not done. The Upper Tribunal judge, therefore, was right to find that the Secretary of State had failed to give proper notice of the challenge raised, but in the exercise of his discretion, was wrong not to have considered that challenge (paras 20, 21–25, 27, 31–37, 41, 66).

Per curiam. It may be worth the Tribunal Procedure Committee having another look at its drafting, and in particular at whether it should state more explicitly in what circumstances the provision of a response is mandatory. It may or may not also be desirable to cater for the situation where, as here, a hearing is fixed before the expiry of the time limited for filing a response. The court does not know what arrangements exist for considering in good time before a Upper Tribunal hearing what steps need to be taken by way of preparation, but the Home Office might wish to consider whether this was a one-off error (it is fair to say that the appeal came on pretty quickly) or whether it reveals some more systemic deficiency ( paras 39, 40, 41, 66).

(2) Section 14(2) and (4) of the Tribunals, Courts and Enforcement Act 2007 permitted the appeal court itself to determine the Secretary of State’s challenge to the First-tier Tribunal's findings. The issue for determination was whether an unverified news report was capable of constituting a sound evidential basis sufficient to undermine the assurances, accepted by the Divisional Court, given by or on behalf of the Republic of Kenya in respect of the claimant. The case law demonstrated: (i) that the courts of England and Wales would, as a general rule, be reluctant to question the reliability of assurances provided by a requesting state in relation to prison conditions; (ii) an argument that a foreign state would not honour assurances represented a very serious allegation of bad faith and the evidence required to displace good faith should possess “special force”; (iii) there was no principle that assurances had to eliminate all risk of inhuman treatment before they could be relied upon; the issue was whether no reasonable tribunal, properly instructed as to the relevant law, could have reached the same conclusion on the evidence; (iv) there was a fundamental presumption that a requesting state was acting in good faith and the burden of showing an abuse of process was on the person who asserted it, with the standard of proof being the balance of probabilities. Underpinning the scrutiny which a court brought to assurances and any conclusions to be drawn from them was the principle of international comity and the public interest in upholding an effective system of extradition. Specific assurances had been given by senior office holders in Kenya which were accepted by the Divisional Court. In considering the article 3 challenge a court should begin with the presumption that the Republic of Kenya was acting in good faith. The evidence before the First-tier Tribunal judge was an online news report. It was unverified and was no more than anecdotal evidence that Kenya had breached assurances in respect of another person. The weight to be attached to the news report was limited. It had no special force. It did not begin to provide the evidential weight required to undermine the specific assurances given by senior office holders in Kenya. Accordingly, the judge had erred in attaching considerable weight to the report which it simply did not carry. Extradition to Kenya would not breach the claimant’s article 3 rights (paras 20, 42, 51, 59–61, 63–64, 65, 66).