United Kingdom Asylum and Immigration Tribunal

jh

Heard at Field House

[2003] UKIAT 00087 D (Iran)

On 29 August 2003

IMMIGRATION APPEAL TRIBUNAL

Date written

Determination notified: 26.09.03

Given orally in court

Before:
Mr J Barnes (Chairman) Mr J A O'Brien Quinn QC

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT

APPELLANT

and

RESPONDENT

Representation

For the appellant: Mr S Walker, Home Office Presenting Officer

For the respondent: Ms H Williams of Counsel, instructed by Young, Solicitors

DETERMINATION AND REASONS
1. The respondent is a citizen of Iran born on 29 September 1983 who arrived clandestinely in the United Kingdom on a date which is unspecified, but he was certainly here on 4 March 2001 when he made an application for asylum after entry. He submitted a self-completion questionnaire and thereafter the Secretary of State refused his application for the reasons set out in a letter dated 13 June 2002. We note at this point that the Secretary of State at paragraphs 5 and 6 of that letter did raise issues as to the credibility of the respondent's claim. He noted at paragraph 5 that there had been a delay in making the application for asylum which had not been made at the point of entry and he noted also that the respondent would have travelled through a number of countries which were signatories to the Refugee Convention en route to the United Kingdom and that a genuine refugee would seek asylum in the first safe country which he reached. For those two reasons he said that there were doubts as to the credibility of the claim.
2. On 20 June 2002 the Secretary of State issued directions for the removal of the respondent to Iran as an illegal entrant after refusal of his asylum application. He appealed against that decision on both asylum and human rights grounds. His appeal was heard on 11 November 2002 by an Adjudicator, Mr A M Baker, who allowed his appeal. The Secretary of State was represented at the hearing by Mr T McAllister, a Presenting Officer, and the respondent was then represented by Miss J Brady of Counsel. In the course of the proceedings, when the Presenting Officer sought to cross-examine the respondent on credibility issues, Miss Brady objected on the basis that such matters were not raised in the reasons for refusal letter and that she had no notice that such an approach was intended. As a result of that the Adjudicator prevented cross-examination on issues outside those raised in the reasons for refusal letter, although he subsequently did ask certain questions for clarification himself at the end of cross-examination. The Adjudicator found the respondent to be credible and allowed his appeal on both asylum and human rights grounds.
3. The Secretary of State sought leave to appeal against that decision on the basis that the Adjudicator had erred in law in restricting cross-examination in the way which had occurred. He relies in that connection on the Tribunal decision in Jonas da Pajxao Costa (17740) promulgated on 23 July 1998. A similar situation had arisen in that appeal in that the claimant's representative had objected to any cross-examination going outside matters strictly raised in the reasons for refusal letter but had been over-ruled by the Adjudicator, who had permitted the Presenting Officer to cross-examine as he thought appropriate, regarding all issues as being open before him. The Tribunal said this:

"It is the responsibility of an Adjudicator or Special Adjudicator to control the proceedings before him or her and to ensure that both parties to an appeal are given a fair and proper opportunity to present their cases. It is also the responsibility of the Adjudicator to ensure that the proceedings are conducted with due regard to the rules of natural justice. There is no rule of law or evidence which restricts a Presenting Officer from asking questions in cross-examination which are not specifically raised by the refusal letter, nor is there any obligation upon an Adjudicator to impose such a restriction."

4. In fairness to Miss Brady, she acknowledges in the witness statement put before us that, in the light of the Tribunal findings in Costa, she should not have objected to the line of questioning outside the reasons for refusal letter and that is undoubtedly correct. It appears that neither she nor anyone else present at the hearing before the Adjudicator were aware of Costa and we therefore take this opportunity to re-state the position.
5. The limitation on cross-examination of the respondent imposed by the Adjudicator was undoubtedly an error of law. Unless there is a specific concession, then the refusal letter does not fetter or limit the scope of the case to be pursued by the Secretary of State before the Adjudicator as a party to judicial proceedings in asylum and human rights appeals, in which the duties of an Adjudicator are defined by paragraph 21 of Part III of Schedule 4 to the Immigration & Asylum Act 1999. There the duties of the Adjudicator in determination of appeals are defined as follows at paragraph 21(1):

"On an appeal to him under Part IV, an Adjudicator must allow the appeal if he considers –

(a) that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case or,

(b) if the decision or action involved the exercise of discretion by the Secretary of State or an officer, that the discretion should have been exercised differently,

but otherwise must dismiss the appeal.

That defines the duties of an Adjudicator in appeals of this nature under Part 4 of the 1999 Act and beyond that it is the duty of the Adjudicator, as of any other judicial officer, to ensure that the proceedings before them are conducted in a manner which is fair to both parties and which gives each party the opportunity to put its case as that party thinks appropriate. It is to be recalled that the burden of proof is on the claimant and the Secretary of State is entitled to test the evidence on which the claimant relies by way of cross-examination. Save insofar as it is permissible under the Procedure Rules to impose reasonable time limits, to seek to restrict the scope of the Presenting Officer's cross-examination is an error of law unless it is carried out in a manner which is professionally unacceptable, bearing in mind the wide scope given to a cross-examiner in our adversarial system.

We note further that where limitations have been placed on the conduct of either party in the course of the hearing by the Adjudicator, whether by way of refusal of applications made, limiting examination of witnesses or in relation to submissions, such matters should be clearly recorded in the determination with the reasons for the imposition of such limitations. In that way too the Adjudicator in the instant appeal failed to record matters as she should have done.

6. Mr Walker sought remittal but Ms Williams opposed this course on behalf of the respondent, seeking to rely on the fact that the Adjudicator had raised issues by way of clarification despite the limitation on cross-examination which he had wrongly, as she accepted, imposed upon the Presenting Officer at the hearing before him. The effect of the Adjudicator's restriction of cross-examination in the present appeal is that the respondent has been unfairly prevented from putting his case in the way in which he seeks to do. It is a fundamental error which cannot be cured by the fact that the Adjudicator may have asked certain points by way of clarification subsequently because that has not overcome the improper limitation which was placed upon the conduct of the Presenting Officer.
7. For the above reasons this appeal is allowed to the extent that it is remitted for hearing afresh before an Adjudicator other than Mr A M Baker.

J Barnes

Vice President