Scottish Court of Session Decisions

[1] The petitioner is an Indian National. He was born in 1949. He entered the United Kingdom illegally in around January 1997 and claimed political asylum on 20 January. His claim for asylum was refused by the respondent by letter dated February 1997. The respondent at the same time certified the petitioner's claim as being one to which paragraph 5(2) of schedule 2 to the Asylum and Immigration Appeals Act 1993 (as amended) applied but to which paragraph 5(5) of said schedule did not. The petitioner appealed said refusal of asylum to a special adjudicator. By determination dated 30 May 1997 the said appeal was refused by Mr Mungo Deans, special adjudicator. Further, the adjudicator granted a certificate in terms of paragraph 2(7) of the said schedule.

[2] Paragraph 5 of schedule 2 to the Asylum and Immigration Appeals Act 1993 (as amended) provides:

[3] The decision of the Secretary of State to refuse the petitioner asylum, was based on an interview conducted with the petitioner, a record of which is No. 8/6 of process. In that document the petitioner was asked "what particular event caused you to leave your own country?" He replied as follows

Later in the interview the petitioner was asked why he had come to the United Kingdom. He replied "to save my life. We tried to apply for stay in other places but could not stay." He was also asked whether he supported any political party or religious group, to which he replied "no I don't personally support anyone but my boy, my adopted nephew who is deceased did. It was a terrorist group Panjpar part of the Sikh Federation." He was asked if he had any criminal conviction to which he replied "no, but I was beaten up by the police and you can still see the marks on my ribs". In the course of the interview the petitioner continued to claim that he had been beaten and tortured by police and detained by them. He claimed that he was in fear for his life and had physical marks on him as evidence of these beatings. That asylum interview record was the only information before the Secretary of State and upon which he based his decision, including his decision to certify the case under paragraph 5. The decision of the Secretary of State was given in a letter dated February 1997 No. 8/2 of process. In paragraph 9 of that letter the Secretary of State had this to say,

Paragraph 10 of the letter reads as follows:

[4] Mr Sutherland for the petitioner claimed that the Secretary of State's decision in general terms failed to deal with the real reason behind the petitioner's claim. It was not his own activities but his connection with his son that was the problem. The letter does not deal with the petitioner's claim that he is still in fear for his life and that he is not worried about prosecution in India but about persecution. Mr Sutherland claimed that this decision did not deal properly with the petitioner's claim. In relation to the petitioner having given a false name to the authorities, Mr Sutherland claimed that persons detained were often not truthful with the police and that that fact was familiar to the courts and as a standard sort of background in cases such as this. He made reference to the case of Sokha v Secretary of State for the Home Department 1992 S.L.T. 1049 Lord Prosser at 1050. With regard to the petitioner's delay in making application for asylum, Mr Sutherland referred to Home Office Statistics No. 14/4 of process. These statistics indicated that a significant majority of persons who applied for asylum did so not at the port of entry but later on while they were resident in the country. He suggested that a significant number are granted asylum who have delayed to some extent or another. Mr Sutherland also referred to extracts from Hansard No. 14/5 of process and to an extract from "Current Issues of UK Asylum Law and Policy" No. 14/3 of process. In R v The Secretary of State for Social Security ex parte B 1997 1 W.L.R.275 Simon Brown L.J. at page 287 pointed out that there was no distinction in the statute between applications made at the port and while resident in the country. Mr Sutherland submitted that applying after entering the country does not therefore mean that the applicant is any less likely to be genuine. There was no justification for the Secretary of State taking the view that the timing of the application threw doubt on the petitioner's credibility. Mr Sutherland then referred to paragraph 10 of the Secretary of State's decision letter in which the Secretary of State approached the matter by determining the application for asylum and then dealing separately with the question of certification. In referring to "all the evidence", he failed to deal with any information regarding torture. There was particular significance regarding the alleged marks on the petitioner's ribs. That might have affected the outcome of the application and might have a bearing on certification. Accordingly the Secretary of State did not deal with all the evidence available. He dealt with generalities and background and not the particulars of the case. In all these circumstances, Mr Sutherland submitted that the decision of the Secretary of State was unreasonable. Furthermore, there was a total absence of explanation for certification under paragraph 5(5) in the circumstances of this case. No reasons were given. This was particularly significant said Mr Sutherland, because the Secretary of State is required to give reasons for certification. For that proposition Mr Sutherland advanced three arguments.

[5] The first was that such a requirement was implied by the Immigration Rules (HC395). Paragraph 333 of the rules provides as follows:

Paragraph 348 of the rules provides as follows:

Mr Sutherland submitted that it was implied by both of these rules that where a decision was made regarding certification, reasons should be given. In this case there were two decisions, the refusal of asylum and the decision to certify. It was inconsistent to be notified of one with reasons without notification of reasons for the other. There was a close link between the two which is apparent in this case, in respect that the question of torture affects both.

[6] Secondly, Mr Sutherland suggested that the obligation to give reasons was required by general rules of natural justice and fairness (R v Civil Service Appeal Board ex parte Cunningham 1991 4 All ELR 310 Lord Donaldson MR).

[7] At page 319 his Lordship goes on to say:

Mr Sutherland submitted that the position of the Secretary of State in this case was that, if the applicant put forward evidence of torture, bearing in mind the practical consequences of certification being granted, the Secretary of State required as a matter of fairness to give reasons for his certification. In all the circumstances before the Secretary of State, his failure to deal specifically with the evidence as to torture and his decision to grant certification cried out for an explanation. Reference was also made to Regina v The Secretary of State for the Home Department ex parte Doody 1994 1 A.C. 531; Regina v Higher Education Funding Council ex parte Institute of Dental Surgery 1994 1 W.L.R. 247; and R v The Secretary of State for the Home Department ex parte Erdogan 1995 Imm. A.R. 430.

[8] Thirdly, Mr Sutherland submitted that in all the circumstances of the present case, it was irrational for the Secretary of State not to have given reasons. Mr Sutherland referred to the case of Regina v Secretary of State for Trade and Industry ex parte Lonrho Plc 1989 1 W.L.R. 525 (Lord Keith at pages 539-540) and submitted that here the petitioner has stated that he was tortured and that he has marks on his body and the Secretary of State has failed to deal specifically with the issue of torture. In the absence of reasons for a decision that there was no torture and where there is evidence pointing in a different direction, it was irrational for the Secretary of State not to give reasons and he cannot complain if the court holds that he had no good reason for granting certification. Reference was also made to the case of Cunningham Lord Donaldson M.R. at page 316 and Leggat L.J. at 326. Mr Sutherland submitted that it was so irrational for the Secretary of State not to give reasons that the court were entitled to the view that there was no good reason for certification having been given. If reasons were required then the standard submitted Mr Sutherland was that set out in the well known case of Wordie Property Co Ltd v Secretary of State for Scotland 1984 S.L.T. 345 where the Lord President (Emslie) at page 348 said:

Reference was also made to the case of Safeway Stores Plc v National Appeal Panel 1996 S.C. 37 where at pages 40-41 Lord Justice Clerk Ross said this:

Mr Sutherland submitted that the decision letter in this case did not meet that test. It did not meet it in relation to the refusal of the asylum application since the lack of credibility through delay and other facts was irrelevant and was a misdirection by the Secretary of State. Also the decision letter did not meet that test regarding the decision to certify. The material issue in that context, that of torture was not dealt with and the informed reader cannot understand why the decision was taken and what considerations were taken into account. In the whole matter Mr Sutherland submitted that the Secretary of State had erred in law and acted in a perverse and unreasonable manner.

[9] Mr Sutherland then turned to the decision of the special adjudicator. That decision is recorded in No. 8/1 of process. At his original interview, the petitioner had stated that at one point he stayed in a place Uttar Pradesh for about four years in hiding because he had been beaten by the police. At the hearing, both the petitioner's representative and the Home Office representative referred to that fact. The petitioner gave evidence before the special adjudicator and according to the adjudicator's determination, appeared to claim that he was in hiding for four years at a place called Andra Pradesh. However, it appears that both the applicant's representative and the Home Office representative continued to refer to Uttar Pradesh. Mr Sutherland submitted that there was here fundamental confusion on a matter which was relied on by the adjudicator in his decision. There is no explanation as to how the confusion came about. The two places referred to are in fact many hundreds or if not thousands of miles apart. Again at page 4 of the determination, the petitioner is recorded as saying that these two are in fact names for the same place. At page 5 of the determination the Home Office representative is recorded as having made a submission about the petitioner's credibility saying that there was a number of discrepancies in his account. Again, the Home Office representative is clearly referring to Uttar Pradesh whereas the special adjudicator is still referring to Andra Pradesh. At pages 6 and 7, it is clear that in assessing the petitioner's credibility, the special adjudicator relied on the difference between Uttar Pradesh and Andra Pradesh and this formed a material part in his assessment of credibility.

[10] The special adjudicator furthermore relied on a document being a report from the Immigration and Refugee Board, Ottawa, to the effect that the family members of militants would not now be targeted by the police in Punjab. The special adjudicator accepted that this was so. Mr Sutherland then referred to that document which is No. 8/11 of process. The document represented a summary of the views of four specialists on various aspects of the human rights, peace and order situation in the Indian state of Punjab. Mr Sutherland suggested that from the description of these four specialists, it could not truly be said that they were independent but that they may well have had a particular axe to grind. He said it was unclear how authoritative or independent these persons were. They all gave information from a particular perspective. Indeed, Mr Sutherland suggested that there was in fact material within the document to support the petitioner's account of the true state of affairs in the Punjab. Clearly the material contained in the document was not all consistent as different people were obviously expressing different views. Mr Sutherland submitted that the document was of limited use and if the special adjudicator was prepared to accept that part of the document to which he referred, he should have given reasons for that. He further submitted that the document was not conclusive as to the merit of any particular claim. Mr Sutherland then referred to No. 14/1 of process which was a set of hand-written notes, which he said were those of Miss Kemp, the petitioner's representative at the hearing before the special adjudicator. These were not agreed to be Miss Kemp's notes, but Mr Sutherland suggested that it was clear that they tied in with what is recorded in the special adjudicator's determination. It is plain from a reading of those notes that, except on one occasion, the discussion between all the parties related to the district of Uttar Pradesh. The only exception to that was the answer which was given to the Home Office representative in cross-examination by the petitioner when he said:

Apart from that, there was no other reference to Andra Pradesh. Indeed, at page 13 of those notes where Miss Kemp records questions asked by the special adjudicator himself, there was no reference to Uttar Pradesh or Andra Pradesh and no attempt to clarify the confusion over the two. No submission was made at the end of the case to the special adjudicator to the effect that the petitioner's evidence was questionable as to the geographical discrepancy. Mr Sutherland submitted that regard should be had to these notes as they showed consistency regarding reference to Uttar Pradesh and pointed out that in the determination the special adjudicator kept referring to Andra Pradesh regarding this as being some sort of discrepancy on the part of the petitioner. He submitted that there was clearly a serious misunderstanding by the special adjudicator regarding this piece of the evidence. Even if the notes were ignored, the discrepancy was clear from the terms of the determination. The discrepancy was material and it significantly affected the special adjudicator's assessment of the petitioner's credibility. Apparently, the special adjudicator after the hearing and before issuing his determination, had gone to a map to ascertain that these places were in fact different. It was submitted that he ought to have cleared it up at the hearing or before the hearing finished. Furthermore, he had the power to reconvene the hearing if he regarded this point as material. Mr Sutherland submitted that in the circumstances there had been a procedural unfairness, which was a breach of natural justice and unreasonable. No reasonable special adjudicator would have dealt with the matter in this way without giving parties an opportunity to clarify matters. Indeed, the confusion might even have arisen as a result of an error in translation.

[11] Mr Sutherland then turned to the question of certification. A certificate had been given by the Secretary of State that the applicant had come from a "white list" country and there was no evidence to establish a reasonable likelihood that he had been tortured. If that certificate was upheld by the special adjudicator, then the petitioner would lose his further right of appeal to appeal to the Immigration Appeal Tribunal. Paragraph 5(5) of schedule 2 to the 1993 Act was in the present tense. Therefore the special adjudicator had to consider the point as at when the matter was before the Secretary of State. Therefore, Mr Sutherland submitted the appropriate thing for the special adjudicator would have been to determine the validity at the outset of the hearing, in other words, that is the first thing he should do. Mr Sutherland suggested that that course of action was consistent with the scheme of the 1993 Act and the special adjudicator's duties in applying the higher standards of fairness in all matters relating to asylum. Mr Sutherland then referred to the case of Secretary of State for the Home Department v Salah Ziar 1997 Imm. A.R. 456. This was a decision of the Immigration Appeal Tribunal but it was a special tribunal in respect that all three members were legally qualified. The tribunal took the opportunity to consider the general approach to be adopted by special adjudicators in determining appeals in certified cases. At page 469 and following, the tribunal had this to say:

Mr Sutherland adopted the reasoning of the Immigration Appeal Tribunal in support of his above submissions.

[12] Mr Sutherland went on to submit that in any event, the special adjudicator had been wrong to uphold the certificate. Having regard to the evidence before him namely the verbal evidence of the petitioner both at interview and at the hearing with regard to his injuries and the marks on his body caused by beatings from the police and secondly, the medical report which was produced to the special adjudicator. The special adjudicator was not satisfied that the petitioner's evidence was credible as to his alleged detentions, mistreatment and harassment by the police in India. He gives no reasons for coming to that conclusion. He also relied on the Canadian report. He submitted that in this case there was no inconsistency regarding the petitioner's evidence of his detentions and referred to the cases of Arthur Kingori v Secretary of State for the Home Department 1994 Imm. A.R. 539 and Sukhdeep Singh v The Secretary of State for the Home Department (a decision of the tribunal heard at Glasgow and determined on 21 April 1999 - unreported). In that case the tribunal had this to say:

Mr Sutherland also mentioned the case of Regina v Special Adjudicator ex parte Alves Paulino 1996 Imm. A.R. 122. Mr Sutherland pointed out the special adjudicator accepted the evidence of the petitioner regarding his nephew and how he came to identify the nephew's body. This was a material part of his evidence. The connection to the nephew was the reason that he gave for the beatings he himself received and therefore was material. Mr Sutherland questioned why, if the special adjudicator accepted that part of the petitioner's story, did he not accept the other parts. At page 5 of the determination the special adjudicator records the submission made by the Home Office representative with regard to the petitioner's credibility.

The first discrepancy he alleged was that during the asylum interview, the petitioner had claimed that he was not involved in any political party whereas at the hearing he admitted that he was so involved. Mr Sutherland suggested that he may well have said that at interview because he was nervous and confused. In any event the questions were not framed clearly regarding his political involvement. Secondly, there was a discrepancy over what he did when he was in Uttar Pradesh. At interview the appellant had said that he went back to Uttar Pradesh to stay with the same man he had stayed with before for four years. He stayed with him and worked with him on his farm. At the hearing, he said that he had spent four years in the jungle and had helped out on the farm. Mr Sutherland submitted that at the hearing the petitioner was simply giving more detail, simply elaborating on what he had said during the interview. He suggested that the evidence was not exactly the same but was not inconsistent the one with the other. This forms an apparent discrepancy but the petitioner explained it by saying that he was scared to say that the record was wrong. Mr Renwick had also submitted that the petitioner's credibility was affected by the fact that he had made no attempt to seek asylum until arrested by the police and that he had given a false name to the police. Mr Sutherland had dealt with these points earlier in his submissions. Mr Sutherland pointed out that the special adjudicator simply accepted Mr Renwick's submissions on a cumulative basis. In these circumstances it was impossible to know what his view would have been if one or more of these factors were wrongly taken into account. Mr Sutherland submitted that if any one of the criticisms regarding these discrepancies was correct, then the accumulative effect of them was destroyed. While accepting that the more criticisms that were valid, the weaker the special adjudicator's view would be, but the acceptance of one criticism would be enough. Even if none of these criticisms were accepted, the same result would flow because of the confusion over the Andra Pradesh Uttar Pradesh business. The special adjudicator had taken that to be a further inconsistency in the petitioner's story although neither party at the hearing had made a submission to that effect. There was a procedural unfairness and an undermining of the proper assessment of credibility. In these circumstances the special adjudicator should have re-opened the hearing to put this matter to parties for their views. That course of action was proposed in the case of Taiwo v The Secretary of State for the Home Department (an Immigration Appeal Tribunal hearing dated 28 March 1995 - unreported). In the whole matter, Mr Sutherland submitted that the decision of the special adjudicator should be reduced on the merits for three reasons (1) the criticism of the apparent discrepancies, (2) the procedural unfairness regarding Andra Pradesh Uttar Pradesh, and (3) the use of the Canadian report. He further submitted that any one of these reasons would be enough to grant decree of reduction.

[13] For the respondent, Mrs Stacey dealt firstly with the case of Ziar. Mrs Stacey referred to the terms of the report and pointed out that what had been held by the tribunal in that case was as follows:

Mrs Stacey suggested that there were two things to do. First of all to check the procedure and then to decide the merits of certification. In terms of paragraph 5 to schedule 2 to the 1993 Act, there were a number of grounds upon which the Secretary of State could certify the claim and it depended on the type of certificate as to when the special adjudicator can decide whether or not to uphold it. Mrs Stacy agreed with the tribunal that the question of certification should be dealt with as a preliminary issue 'where possible'. She referred to what the tribunal said at page 470-471 where they said this:

Mrs Stacey submitted that that encapsulated the ratio of the case in Ziar and suggested that paragraph 5(5) is always a part of the certification decision. It is only if sub-paragraphs 2, 3 or 4 are incorrect that the special adjudicator can deal with certification as a preliminary matter. If sub-paragraph 2 is correct, then he has to go on to sub-paragraph 5 and to do so has to hear evidence on the merits. Mrs Stacey also pointed out that at page 472 the tribunal were not saying that the special adjudicator should deal with certification at the beginning of the case rather "at the earliest possible moment". Mrs Stacey suggested that the special adjudicator in this case did exactly what the tribunal in Ziar said he should do. The letter indicating the Secretary of State's decision No. 8/2 of process, disclosed in the last paragraph a formally valid certification. Accordingly, the duty was on the special adjudicator then to go on to the next stage to consider whether the Secretary of State was right so to certify. The onus of proof being on the Secretary of State to show that he was right. In his determination No. 8/1 of process and in the final paragraph thereof, the special adjudicator expressed his opinion regarding the question of torture and agreed in broad terms with the Secretary of State's view regarding paragraph 5(2) and paragraph 5(5). Mrs Stacey said that the special adjudicator did this process properly. He did so after hearing evidence which she submitted was the correct way to do it.

[14] I agree with Mrs Stacey's interpretation of the tribunal's views in the case of Ziar and with her submission on this point. While it may be simple to deal with the process of certification at the outset of a hearing where the ground of certification is one of those specified by the tribunal in Ziar, where the ground is paragraph 5(2) and 5(5) taken together, as in this case, it makes sense for the special adjudicator to hear the evidence on the merits before taking any of the decisions including that as to his agreement on the question of certification. The appellant's claim for asylum is based upon an assertion that he has been tortured in India and that it was likely that he would be tortured were he to be returned to that country. Both the merits of that claim and the propriety of the certification depends upon the special adjudicator accepting such evidence. It therefore seems only sensible that he should hear such evidence before making a decision on either point. In my opinion, he acted perfectly properly and did not err in law in not taking the decision on certification at the beginning of the case.

[15] Mrs Stacey then went on to deal with the decision or determination of the special adjudicator No. 8/1 of process. She said that this was an appeal in the sense of a second chance to get asylum. It was really a re-hearing and evidence could be led. It was not unusual for an appellant to give evidence to the special adjudicator. Mrs Stacey accepted that applicants before the special adjudicator are often nervous and there sometimes is a difficulty in translation. In these circumstances, one cannot take too fine a point regarding what was actually said. However, this was not the first opportunity that the petitioner had to tell his story, as he had spoken to police officers in the other countries through which he passed regarding his situation. With regard to any confusion that there might have been between Uttar Pradesh and Andra Pradesh, Mrs Stacey submitted that this was not fatal to the special adjudicator's determination. Mr Sutherland had submitted that fairness required that if there was a mistake that the petitioner should have had an opportunity to tell the special adjudicator what his position was and that the special adjudicator should have reconvened the hearing for that purpose. However, Mrs Stacey claimed that he had in fact taken that opportunity already. As is clear from the determination at the bottom of page 4, he had stated his position which was simply that these two places were the same place. Mrs Stacey then dealt with the other alleged discrepancies in the evidence of the petitioner, in particular, those submitted by the Home Office representative at the hearing and accepted by the special adjudicator. She suggested that all the examples given by the representative were sustainable. They were real discrepancies in the evidence of the petitioner and not mere nit-picking. Furthermore, there were other admissible adminicles of evidence which affected the credibility of the petitioner namely, the fact that he had not told anyone of his situation until making the asylum claim after being arrested by the police and that he had apparently given a false name to the police in order to avoid being deported from the country. As far as the Canadian report is concerned, Mrs Stacey submitted that there was material within that report which the special adjudicator was entitled to take into account. The petitioner's real difficulty had been his connection with his adopted son. Such persons, claimed the report, were not now the target of police activity. The views expressed in the report at page 11 clearly fitted the appellant's case, in that he was not now a high profile suspect and had not much to fear from the police. Accordingly, the special adjudicator was entitled to find that there was not established a well founded fear of persecution. In the whole matter, Mrs Stacey submitted that the special adjudicator did carry out his task properly regarding both certification and the substance of the appeal. She submitted that the evidence on the merits was relevant to both questions and he was entitled to take that into account.

[16] I agree that certification of the application has important consequences for an applicant for asylum. In the first place, he is put on what has been referred to as the "fast track procedure" which means that his opportunity to prepare a proper application before the special adjudicator is considerably limited and also that his right of appeal to the Immigration Appeal Tribunal is denied. I also agree that in asylum cases, administrative decisions should be the subject of the most rigorous scrutiny (Secretary of State for the Home Department v Sala Ziar). As Lord Bridge of Harwich said in Regina v The Home Secretary ex parte Bugdaycay "the court must I think be entitled to subject an administrative decision to the more rigorous examination to ensure that it is no way flawed according to the gravity of the issue which the decision determines. The most fundamental of all human rights is the individual right to life and when an administrative decision under challenge is said to be one which may put the applicant's life at risk, the basis of the decision must surely call for the most anxious scrutiny". Bearing that in mind, it is in my opinion vital that both the applicant and on judicial review the court should be able to see quite clearly why the administrative authority has taken a decision to refuse asylum. That is particularly so in relation to certification cases. Accordingly, one has first to look to see whether the Secretary of State and the special adjudicator have given sufficient reasons for refusal. In the words of Lord President Emslie in Wordie Property Co Ltd v The Secretary of State for Scotland "the decision must in short leave the informed reader and the court in no real doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it".

[17] In many cases the authorities will have knowledge of the political and social situation of the countries from which the applicants come and will be able to use that knowledge in assessing the applicant's claim for asylum. Indeed, that is the whole purpose of the so called "white list". Furthermore, the decision maker will be aware of the circumstances of the making of the applicant's claim, his background and his history since leaving his country of origin. Also the decision maker will have the opportunity either through the original interview process or through a hearing to assess the general credibility of the applicant. In this case both the Secretary of State and the special adjudicator not only had access to all those sources of information but clearly took them into account. Both fundamentally had two questions to answer; firstly, whether the applicant's account was to be accepted and secondly, if so, whether in terms of the statutory provisions that entitled him to asylum. In this case both rejected the applicant's account. In my opinion, there was in general terms sufficient material before them to entitle them to do so. There were a number of significant discrepancies in the appellant's evidence at the end of the day which, in my view, could not be explained away by translation difficulties, nervousness or apprehension. Further, it was in my opinion significant that the petitioner had told no one of his situation, even the fellow countrymen he stayed with until his arrest by the police and that he gave a false name to the Immigration Authorities. The authorities were quite entitled to conclude that the petitioner was not a genuine asylum seeker. Since his claim for asylum was based on his treatment by the Punjabi authorities and since that claim was not accepted, it was in my view, open to the Secretary of State and the special adjudicator to conclude further that it had not been established that there was a reasonable likelihood either that he had been or would be tortured and therefore to certify the claim under paragraph 5(5).

[18] Since that was the way in which both decisions were approached, it is further my view that sufficient reasons have in general terms been given. Both the letter and the determination set out very fully the nature of the claim, the extent of the authority's knowledge of the situation, background of the appellant and history of the case and give cogent reasons why they did not accept his claim and why the case fell to be certified. However, I have come to the conclusion that Mr Sutherland's submission that the hearing before the special adjudicator was procedurally unfair is in one respect well founded. In my view, it is clear that there was confusion on the question of whether the petitioner had fled to Uttar Pradesh or Andra Pradesh. That confusion is not to be ignored simply because at one stage the petitioner seemed to think they were the same place. That is because of the use to which this confusion is put by the special adjudicator at pages 6-7 of his determination. Having dealt with the discrepancies he goes on to say:

If the special adjudicator was to take this into account as he did and bearing in mind that he only found out about the difference after the hearing, it was in my view only fair that he give the petitioner an opportunity to explain. It was not just the petitioner's remark that required explanation but the fact that neither representative seemed to be aware of the confusion or the significance of it. In my opinion, that unfairness was sufficient to render the hearing before the special adjudicator null and void and to render his determination reducible. I therefore sustain to that extent the second and fourth pleas-in-law for the petitioner and grant decree of declarator that his determination was unreasonable and grant reduction thereof. Further, I direct that any further appeal against the decision of the Secretary of State be heard before a different special adjudicator.