United Kingdom Asylum and Immigration Tribunal

APPEAL No. [2004] UKIAT 00044 M (Chad)

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 08 March 2004

Date Determination notified: 16 March 2004

Before John Freeman (chairman) Mrs ML Roe and Mr P Bompas
Between

 

M	APPELLANT
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT	RESPONDENT

Mr N Ahmed (counsel instructed by Burton & Burton, Nottingham) for the appellant Mr A Lawther for the respondent
DETERMINATION AND REASONS

Mr N Ahmed (counsel instructed by Burton & Burton, Nottingham) for the appellant

Mr A Lawther for the respondent

This is an appeal from a decision of an adjudicator (Mrs M Gurung-Thapa), sitting at Birmingham on 15 April 2003, dismissing an asylum and human rights appeal by a citizen of Chad. Permission to appeal was given on the basis of allegations about the adjudicator's conduct of the hearing.

1. There is one other point, on which permission was not given, on which we agreed to hear Mr Ahmed's representations as to why it should be taken into account. It concerns a letter from the Movement for Democracy and Justice in Chad [MJDC] Great Britain section, dated 15 October 2002, which reads, so far as relevant, as follows:

[The appellant] born 25/8/1977 at N'djamena (Chad) is a member of the Movement for Democracy and Justice in Chad [MJDC] and in consequence his life is under serious threat in his country.

2. The complaint about that is that the adjudicator (at § 40) rejected it on the basis of her general credibility findings, rather than taking it into account before reaching those, and then arriving at a view on it. While that was a wrong reading of Tanveer Ahmed [2002] UKIAT 00439, we regard the letter as a wholly valueless generalized testimonial, which had no real bearing on the credibility or otherwise of the appellant's account of events in Chad. We see no reason to stray outside the points on which permission was given.
3. These stemmed from the difficult situation in which the adjudicator was placed, once again, by the now notorious inefficiency of the Home Office, in failing to field a presenting officer before her, in insignificant and far-flung Birmingham. On the other hand, while not everything in the claimant's account was specifically challenged in the refusal letter, it was made very clear that in general it was not accepted at all, with a number of reasons. That left the adjudicator with the job of assessing the claimant's credibility for herself.
4. We reject Mr Ahmed's suggestion, not supported by any authority to which he could refer us, that she was limited to the specific points taken in the refusal letter. Provided she made it clear, where it was not already so from that, where there were problems with the claimant's account, then it was for her to reach an independent decision on its credibility or otherwise.
5. Most of the points turn on interventions by the adjudicator. There is one which does not: it is about the effectiveness or otherwise of the interpreter. It is said in the grounds of appeal that there were problems with this, contrary to the adjudicator's statement at § 23 that there were not. If one actually reads the adjudicator's § 23, it at once becomes clear that this is a misrepresentation of it. She did note that there were problems (over the dialect of Arabic used, always a potential source of difficulty); but she said the claimant had confirmed he understood everything.
6. Following directions by the vice-president who gave permission, we have the adjudicator's typed record of proceedings and comments from her as to the points raised in the grounds of appeal. There is also a copy of the record of proceedings, annotated by Miss G Allwood of the claimant's solicitors, who appeared for him before the adjudicator, and two statements by her. Miss Allwood has marked the record of proceedings to show where a particular question was asked by the adjudicator, rather than her; and at some points with her own version of what was said. We wish that too had been put to the adjudicator for her comments on it; but in the event we have been able to resolve whatever differences in the two versions we needed to.
7. One of these points concerns the claimant's confirmation that he had understood everything the interpreter had said: see p 8 of the typewritten record. Miss Allwood has added to the adjudicator's version of his reply "… but it has been difficult". That might have led to some difficulties in resolution, if it were not for Miss Allwood's helpful and conscientious specification in her second statement of what "the interpretational problem" had actually involved. She says it related to the word "stretcher".
8. This was a reference to the point in the claimant's account where at interview he had described being taken out of prison on a stretcher: see the adjudicator's review of this part of the evidence at § 16. Contrary to that version, in his oral evidence before her he had said he was dragged upstairs on a sheet. When this discrepancy was put to him by the adjudicator ("Stretcher or sheet?", as she records with no waste of words at p 4 of the record of proceedings), the claimant insisted it had been at least some form of bed-covering. Unlikely as that might seem, he was clearly confirming the account he had given in oral evidence, and blaming the Home Office interpreter at his interview for recording him as saying he was taken out on a stretcher.
9. The adjudicator made it clear at § 37 that she understood the claimant as saying that: this is not a point on which any deficiencies of the interpreter used before her could affect her view of the evidence. She was entitled to note, as she did at § 39, that the claimant had confirmed at the end of the interview record that he had understood the questions put to him, and had had an opportunity to add anything he wished, and had signed the record. In our view she was entitled to take this particular point against the claimant, as she did at § 37, though not with any degree of prominence.
10. The remaining points all concern interventions by the adjudicator. They fall into three main groups:

a) (at pp 6 and 8 of the record of proceedings) what is said to be an over-confrontational challenge to his explanation of the different dates he had given for his leaving Chad;

b) (also p 6) a too-wide ranging foray of the adjudicator's own on the details of the claimant's account of the route and times he took in doing so; and

c) (at p 9) a similar foray on the history of the claimant's father's involvement with the MDJC (referred to here as 'MJDT', using the French spelling of the country in the acronym).

11. The approach to be taken to such points has recently been clarified in K (AS 58733-03), a decision written by Ouseley P (sitting with Eshun VP, as well as a lay member), to which we have his authority to refer, in advance of its being reported: we had it faxed to the parties in Birmingham, so they were prepared to make whatever submissions they wished on it. It was not a case where there had been no presenting officer before the adjudicator; so the views expressed on interventions by her are if anything of more force in this, where there was none. (It is hardly necessary to point out how much more necessary such judicial interventions must be, where only one side is represented).
12. The ratio of K on the points relevant to this case appears at §§ 42 – 44, 49 and 55. We draw from it the following principles:

42. Adjudicators are not limited to asking questions for clarification, and may intervene to move things along, and may also put questions to a witness, where a point which concerns them has not been dealt with, even where both sides are represented.

43. They should not interrupt evidence in chief or cross-examination, except in the circumstances referred to at § 42, "… or for other reasons associated with the general control of the case or the court room". It is nearly always best to wait until after cross-examination and re-examination (where there is either) to see what is put before taking up inconsistencies; but adjudicators are not limited to points raised by the other party (either in the refusal letter or at the hearing), though they should not pursue a different case or theory altogether.

44. Questions by adjudicators should not be asked "… in any hostile manner or in a manner which suggests that the Adjudicator's mind has been made up." They should not be of a leading kind, or concealed traps, but direct and open-ended. Adjudicators should not take over conduct of the case; but the fact that questions they asked may help one side or the other does not make them unfair.

49. "It is important for the distinctions between cross-examination and evidence-in-chief to be remembered. In evidence in chief, the function of the advocate is to elicit the relevant information on which he relies. In cross-examination, one task of the advocate is to show how unreliable a witness is by showing how much he has forgotten and how little he is able to answer questions."

55. "It is important that a fair-minded observer would have been able to distinguish between an Adjudicator firmly in control of a case behaving fairly and properly in order to ascertain how the case related to the available evidence and somebody who is indicating hostility towards a party or predetermination through the timing and manner of intervention."

13. Before dealing with the adjudicator's interventions in the present case according to those principles, we need to reach a view as to what actually happened at the points in issue to which we have referred at 11.

a) We accept Miss Allwood's annotations at pp 6 and 9 as showing that the line of questioning about dates was pursued by the adjudicator, not her. This is because the adjudicator herself confirms that at §§ 23 and 39. There is no such confirmation of the annotation at p 6, recording the adjudicator as asking, not as she records "Date escaped prison, asking you what date did you leave Chad", but "You just described day left prison. We are asking simple question, what date did you leave Chad". However we should not regard this question, even in that form, as objectionable in terms of K: the adjudicator was doing no more than bringing the claimant back to the point, and reassuring him that it was not a difficult one.

b) Miss Allwood has only marked two questions on the claimant's departure route as asked by the adjudicator: "How long spend Lake Tchad?", and "Where stay in Lake Tchad?". However, even if Mr Ahmed is right (as he may well be) in suggesting that the following questions on that page were asked by the adjudicator, they were certainly not a foray of the adjudicator's own, since the point had already been raised by Miss Allwood at the bottom of p 5. If the adjudicator felt the account she had heard there needed clarification, she was entitled to pursue that while it was fresh in her mind, without waiting for the end of the evidence in chief; and there is nothing in the form of the questions to indicate any purpose other than clarification.

c) Again it is clear from the adjudicator's §§ 24-25 that she was pursuing the line of questioning about the claimant's father's involvement with the MDJT. That this was not a foray of her own is shown by her statement of the claimant's own case at § 32:

The MDJT is the main political party for the Gorane tribe [to] which he belongs. He joined the party in 1999 because of the influence of his father. It is customary for sons to join the party that their father's [sic] belonged to.

This intervention, together with the one at p 8, took place at the end of the claimant's evidence in chief, which was an entirely appropriate point for it, there being no question of cross-examination or re-examination in the present case.

14. There was no question of this adjudicator taking up a hostile or apparently prejudged attitude in the questions she asked; nor of them representing an inappropriate, or even inappropriately timed foray of her own. We have no doubt that any fair-minded observer would have regarded her as controlling the proceedings in a fair way. This is a much more difficult task when only one side is present or represented, and it places heavy demands on judicial savoir-faire. We do not accept Mr Ahmed's general suggestion that adjudicators should put points to the advocate, rather than directly to the claimant. That may have been the view at one time; but it is a cumbersome procedure, and not required by anything in K. The important thing, as that decision makes clear, is what the adjudicator's questions are about, and how they are put.
15. While advocates naturally wish to be left alone to bring out the evidence in their own way as much as they possibly can, in our view they must recognize, especially where they have no opposition to face, that some judicial intervention is almost inevitable, and should try not to be too sensitive about it. These are not ordinary civil proceedings, but ones in which there is a strong public interest; and adjudicators would be failing in their duty of "anxious consideration", owed to the public as much as to the individual concerned, if they did not do their best to make sure, within the principles set out in K, that cases before them are properly gone into.

Appeal dismissed

John Freeman (chairman)