QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF UCAR||(CLAIMANT)|
|THE IMMIGRATION APPEAL TRIBUNAL||(DEFENDANT)|
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT||(INTERESTED PARTY)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MISS RICHARDS (instructed by TREASURY SOLICITOR) appeared on behalf of the DEFENDANT
The INTERESTED PARTY was not represented and did not attend
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"Subject to section 77, where evidence which was not submitted to the adjudicator is relied upon in an application for leave to appeal, the Tribunal shall not be required to consider that evidence in deciding whether to grant leave to appeal, unless it is satisfied that there were good reasons why it was not submitted to the adjudicator."
The obvious reason why Mr McDowall's report had not been placed before the adjudicator was that it had only been commissioned after the adjudicator's determination. The real question, therefore, is whether there was a good reason for the report not to have been commissioned prior to the hearing before the adjudicator, so that it could have been used on the appeal to the adjudicator.
"...the process of appeal to the Tribunal is not intended to provide applicants with a chance to present evidence which they could reasonably have produced to the adjudicator at the appropriate time and had failed to produce despite directions, so appellants' representatives will not have carte blanche to avoid the consequences of their own neglect by an appeal" (see McDonald's Immigration Law and Practice, 5th ed, para.18.173).
"If an applicant seeks to rely on any evidence which was not submitted to the adjudicator, he must include in his application a full explanation of why that evidence was not so submitted. The Tribunal will not in deciding whether to grant leave to appeal consider any such evidence unless satisfied that there are good reasons why it was not submitted to the adjudicator (Rule 18(11)). A decision by an appellant or his representative (for whatever reason) not to submit the evidence will not normally be regarded as a good reason for not having submitted it. Similarly, if the evidence existed and could by taking reasonable steps have been submitted, the Tribunal is unlikely to decide that there was a good reason for not submitting it. If no explanation is given, the Tribunal will almost certainly not take the evidence into consideration."
That Practice Direction reflects the overriding objective of appeals to the Tribunal, which is described in rule 30(2) of the 2000 Rules as being "to secure the just, timely and effective disposal of appeals". The last two sentences of the paragraph in the Practice Direction which I have cited show that there may be cases, although very few, in which it may be appropriate to consider evidence which was not submitted to the adjudicator, even if it could have been submitted to the adjudicator, and even if no explanation for not doing so has been proffered.