Ha And Td V. Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lord Reed,Lord Hardie,Lord Mackay of Drumadoon |
| Judgment Date | 06 April 2010 |
| Neutral Citation | [2010] CSIH 28 |
| Court | Court of Session |
| Published date | 06 April 2010 |
| Date | 06 April 2010 |
| Docket Number | XA149/08 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Reed Lord Hardie Lord Mackay of Drumadoon | [2010] CSIH 28 XA149/08 & XA30/09 OPINION OF THE COURT delivered by LORD REED in Appeals by HA and TD Appellants; against SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: _______ |
Act: Winter, Solicitor Advocate; McGill & Co (for second appellant)
Alt: Webster (in the first appeal), Lindsay (in the second appeal); C. Mullin
6 April 2010
Introduction
[1] These appeals were heard separately but are closely related in their subject matter. Both are concerned with procedural fairness in proceedings before the Asylum and Immigration Tribunal. In both, the critical question is whether the immigration judge was entitled to base his conclusion to some extent upon a matter which had not been raised during the course of the hearing before him. This is a question which has been raised in numerous recent appeals, and applications for leave to appeal, to this court. Against that background, it is convenient to begin by considering the issue of fairness in the context of proceedings before the Tribunal in somewhat general terms, before turning to the circumstances of these particular appeals.
[2] Procedure before the Tribunal is regulated by the Asylum and Immigration Tribunal (Procedure) Rules 2005 (SI 2005 No. 230), as amended. The overriding objective of the Rules is "to secure that proceedings before the Tribunal are handled as fairly, quickly and efficiently as possible" (Rule 4). These objectives of fairness, speed and efficiency are reflected in the requirements imposed by the Rules. They require, for example, that the appellant give notice of an appeal within a specified time limit: in the case of a person in the United Kingdom, the time limit is 5 days after being served with notice of the decision if the person is in detention, or 10 days in any other case (Rule 7). The notice of appeal must set out the grounds of appeal, give reasons in support of those grounds, and, so far as reasonably practicable, list any documents which the appellant intends to rely upon as evidence in support of the appeal (Rule 8). Unless rejected by the Tribunal on preliminary grounds, the notice of appeal must be served on the respondent (Rule 12). The respondent must file with the Tribunal the notice of the decision appealed against, any other document served on the appellant giving reasons for the decision, any statement of evidence form completed by the appellant in relation to the decision, any record of an interview with the appellant in relation to the decision, and any other unpublished document relied upon; and those documents must also be served on the appellant. They need not however be filed or served before 2pm on the business day before the hearing (Rule 13). The appeal must ordinarily be considered by the Tribunal at a hearing, but there are a number of circumstances in which the Tribunal may determine an appeal without a hearing. These include circumstances where the parties consent, or where the appellant and his representatives are outside the United Kingdom, or where the Tribunal considers that the appeal can be justly determined without a hearing (Rule 15). The Tribunal may hear an appeal in the absence of a party or his representative in a variety of circumstances: for example, if the party is outside the United Kingdom or is unable to attend the hearing, or if the party is unrepresented and it is impracticable to give him notice of the hearing (Rule 19). The Tribunal's power to adjourn hearings is restricted (Rule 21). The Tribunal must ordinarily issue a written determination within 10 days of the hearing (Rule 22). Subject to Section 108 of the 2002 Act, the Tribunal must not take account of evidence that has not been made available to all the parties (Rule 51(9)).
[3] The Rules thus contain a number of requirements which are designed to secure procedural fairness, but they do not replicate ordinary judicial procedures. That reflects, to some extent, certain practical difficulties commonly experienced in asylum and immigration appeals. The appellant may, for example, be outside the United Kingdom, as may his representative, or the whereabouts of the appellant may be unknown. The procedures also reflect the importance attached to the prompt disposal of appeals: the short time limits for giving notice of appeal, for lodging documents prior to the hearing, and for the Tribunal to issue its determination following the hearing, impose constraints on all involved.
[4] Subject to the Rules, the Tribunal has the power to decide the procedure to be followed in relation to any appeal or application (Rule 43(1)). In doing so it must however act fairly. What fairness requires has been considered by the Tribunal and by the courts in numerous cases, a few of which we shall shortly turn to. It is however necessary to emphasise, before doing so, the relevance of certain general observations made by Lord Mustill in R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531 at page 560, in a speech with which the other members of the House expressed their agreement. As Lord Mustill observed, what fairness requires is essentially an intuitive judgment. Although it is possible to identify a number of general principles, they cannot be applied by rote identically in every situation: "what fairness demands is dependent on the context of the decision". An overall judgment must therefore be made in the light of all the circumstances of a particular case. That said, guidance can be obtained from decided cases, provided careful attention is paid to any relevant factual circumstances, and judicial dicta are not taken out of context.
[5] In relation to the context in which the Tribunal operates, a number of salient features were identified by the Court of Appeal in Secretary of State for the Home Department v Maheshwaran [2004] Imm AR 176 at paragraph 3:
"Those who make a claim for asylum must show that they are refugees. The burden of proof is on them. Whether or not a claimant is to be believed is frequently very important. He will assert very many facts in relation to events far away most of which no one before the adjudicator is in a position to corroborate or refute. Material is often adduced at the last minute without warning. From time to time the claimant or the Home Secretary are neither there nor represented and yet the adjudicator carries on with his task. He frequently has several cases listed in front of him on the same day. For one reason or another not every hearing will be effective. Adjudicators can not be expected to be alive to every possible nuance of a case before the oral hearing, if there is one, starts. Adjudicators in general will reserve their determinations for later delivery. They will ponder what has been said and what has not been said, both before the hearing and at the hearing. They will look carefully at the documents which have been produced. Points will sometimes assume a greater importance than they appeared to have before the hearing began or in its earlier stages. Adjudicators will in general rightly be cautious about intervening lest it be said that they have leaped into the forensic arena and lest an appearance of bias is given."
[6] One factor which has been emphasised in numerous cases is the specialist nature of the Tribunal (see e.g. AH (Sudan) v Secretary of State for the Home Department [2008] 1 AC 678). This has implications for procedure before the Tribunal: although the procedure is adversarial (R v Secretary of State for the Home Department, ex parte Abdi [1996] 1 WLR 298 at page 301 per Lord Mustill), the Tribunal is not confined to a consideration of the evidence and submissions presented to it by the parties. In that regard, the observations made by Sedley J and cited in Secretary of State for the Home Department v Abdi [1994] Imm AR 402 at page 412, in relation to adjudicators appointed under the previous legislation, remain apposite:
"Adjudicators are not recruited from the Clapham omnibus. They are skilled and specialised office-holders carrying out an independent and, in many respects, judicial function of profound importance to the individuals who come before them ... From case to case they will build up a fund of information about different third countries. It would be wrong, of course, for them to decide cases upon the basis of private information of this kind; but it would also, in my judgment, be wrong for them to ignore such information and close their minds to everything except the evidence that the Home Office chose or the applicant was able to put before them."
In that case (per Steyn LJ at page 420), and in subsequent cases (e.g. Gnanavarathan v A Special Adjudicator [1995] Imm AR 64), it was accepted that the adjudicator was entitled to rely on matters within his own knowledge, provided such matters were disclosed to the parties so as to afford them a fair opportunity to deal with them.
[7] Similarly, the Tribunal may identify an issue which has not been raised by the parties to the proceedings, but it will be unfair, ordinarily at least, for it to base its decision upon its view of that issue without giving the parties an opportunity to address it upon the matter. That point is illustrated by the decision of this court at an earlier stage of the proceedings in relation to the first appellant, reported as HA v Secretary of State for the Home Department 2008 SC 58. As we shall explain, the first appellant's claim for asylum is based on an account of having had a relationship in Afghanistan with the daughter of an army commander, who became pregnant as a result of the relationship. At an earlier stage of the proceedings, an immigration judge rejected the credibility of the first appellant's account in part because no evidence had been given of the precautions taken by the couple...
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