Nare (Evidence by Electronic Means) Zimbabwe
| Jurisdiction | UK Non-devolved |
| Judge | C M G OCKELTON |
| Judgment Date | 14 November 2011 |
| Neutral Citation | [2011] UKUT 443 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 14 November 2011 |
[2011] UKUT 443 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Mr C M G Ockelton, Vice President
Upper Tribunal Judge Grubb
Immigration Judge Holmes
For the Appellant: Ms R Pettersen, Senior Home Office Presenting Officer
For the Respondent: Mr G Brown, instructed by Howells Solicitors
Nare (evidence by electronic means) Zimbabwe
The decision whether to allow evidence to be given by electronic means is a judicial one, requiring consideration of the need to do so, the arrangements at the distant site, and the ability to assess such evidence, by reference to guidance such as that set out here.
The rules governing procedure in the Immigration and Asylum Chamber of the First-tier Tribunal are the Asylum and Immigration Tribunal (Procedure) Rules 2005, as amended ( SI 2005/230) Rule 45 is headed “Directions”, and by Rule 45(4)(h), directions may:
“provide for a hearing to be conducted or evidence given or representations made by video link or by other electronic means”.
This appeal raises issues as to the circumstances in which directions should be given for the taking of evidence by electronic means.
Thabang Nare (“the claimant”) is a national of Zimbabwe. He came to the United Kingdom as a visitor, obtained an extension to his leave, but has had no leave since 2005. In 2009 he decided to claim asylum. Since then he has pursued two appeals on asylum grounds: this is the second of them. He has a sister who is in the United Kingdom, as is his mother. His sister also claimed asylum in 2009. She has been granted asylum following a successful appeal against an earlier refusal.
The claimant's first appeal was heard in his absence and dismissed. He did not appeal the adverse determination of Immigration Judge Boyd. The present appeal results from further submissions put to the Secretary of State at a later date. As Immigration Judge Zucker (“the IJ”) recognised when the present appeal came before him, there is a clear tension between the judgement of Immigration Judge Boyd dismissing the claimant's first appeal, and the judgement of Immigration Judge A E Walker, who allowed the claimant's sister's appeal. Both appeals were based, to an extent on similar underlying facts, the evidence of which was rejected in the one judgement and accepted in the other.
When the claimant's appeal came before the IJ, he sought to support it by evidence from his sister, who did not attend the hearing. It was said that she was unable to afford to travel to the hearing in North Shields. The history of this difficulty, and of the IJ's solution to it, is not easy to discover from the file. The note of proceedings at a case management review hearing on 19 April 2010 has the following entries:
“7. Are any witnesses aside from the appellant to be called?
Possibly sister
…
11. Special court requirements (e.g. all female preference, video link or player required)
No.”
Following that hearing, the appellant's then representative, Refugee and Migrant Justice, wrote to the First-tier Tribunal on 23 April 2010, stating as follows:
“As was indicated at the Case Management hearing, his sister will be available as a witness in this case but due to travel costs and time this would have to be by telephone”
The letter is endorsed:
“called Rep to explain witness auth to give evidence via telephone”.
That note is dated “23/4/10” and signed “JA”. We have not been told who “JA” is, or on what basis he or she was able to “auth” (sc authorise) the giving of evidence by telephone.
By 28 April 2010 the matter was being treated as settled. A letter from the claimant's then representatives on that date describes the claimant's sister as “available as a telephone witness”. The IJ's note of the hearing records evidence from the claimant's sister, and no cross-examination of it. The note does not indicate that the sister was not present in the hearing room, and does not indicate that the IJ heard any submissions on whether the taking of evidence by telephone was appropriate in this case. The IJ's determination says, at [39], “the appellant's sister gave evidence by telephone”. It summarises her evidence, and records that the Presenting Officer did not cross-examine.
In his determination, which appears to have been sent out on 11 May 2010, the IJ allowed the claimant's appeal.
The Secretary of State then applied for permission to appeal to this Tribunal. The grounds are as follows:
“ Ground 1
The IJ has failed correctly to apply procedure rules and materially prejudiced the Secretary of State.
A key witness the sister of the appellant was not present at the hearing to give evidence.
The presenting officer refused to cross examine by telephone as he was not satisfied with the witness's identity or the authenticity of her evidence.
It is submitted that the IJ should have called the witness to give evidence or should have placed less weight on her written evidence.
The IJ has found adverse ‘findings of fact’ as the Presenting Officer did not cross examine the witness (Paragraphs 42, 43 and 44 of the determination).
Paragraph 43
In the absence of any challenge to the appellants sister I accept and find as a fact that the appellants is the son of Colonel Nare.
Paragraph 44
I accept and find as a fact in the absence of any challenges that the appellants sister was raped and was raped by Zanu-PF supporters.
The IJ has failed to consider the overriding objective – The Asylum and Immigration Tribunal (Procedure) Rules 2005, subsection 4. Where the interests of all parties to the proceedings should be considered.
4 Overriding objective
The overriding objective of these Rules is to secure that proceedings before the Tribunal are handled as fairly, quickly and efficiently as possible; and, where appropriate, that members of the Tribunal have responsibility for ensuring this, in the interests of the parties to the proceedings and in the wider public interest.
By allowing this appeal the IJ has incorrectly applied procedure rules and inadvertently prejudiced the respondent.
I request a material error of law is found.”
SIJ Perkins, sitting as a judge of the First-tier Tribunal granted permission, giving his reasons as follows:
“It appears that the Immigration Judge permitted a witness to give evidence by telephone. Arguably he had no power to do that and should not have received evidence in that way or, if he did, he should have made it plain that he could not give the evidence the weight that would be afforded to someone who attended and gave evidence. There are many reasons to be wary of evidence given away from the hearing room including the possibilities of impersonation that could not be proved later or of a witness being coached or threatened.
That said, the Presenting Officer's refusal to cross-examine the witness was, on face of things, bizarre. The Immigration Judge would certainly have risked criticism if he had rejected evidence that the Presenting Officer had decided not to challenge.
I note as well that the witness's assertion that she had been raped had been accepted on a previous occasion. It may be hard for the respondent to show that any error was material.
Nevertheless, the grounds are arguable and I give permission to argue each point.
Thus it is that the Secretary of State's appeal comes before this Tribunal.
The hearing before us was brief, because neither Ms Pettersen nor Mr Brown dissented from the view we had provisionally reached. That view is that, whatever error may...
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