APPEAL No. TK (Consideration of Prior Determination, Directions) Georgia  UKIAT 00149
Date of hearing: 18 February 2004
Date Determination notified: 3 June 2004
|Secretary of State for the Home Department||RESPONDENT|
'14. The next event described by the Appellant in her written statement was on 20 November 2002. The Appellant and her son had returned home as she thought the situation may have improved. However, when they arrived she discovered from neighbours that the police were asking about her husband's whereabouts. She said therefore that she returned straightway to her aunt's house only to find that in the short time they had been away two men from the security police had arrived at the aunt's house asking about her whereabouts. The following day a neighbour telephoned the aunt's house to say that the Appellant's own house had been burnt down. The Appellant's father-in-law reported this event locally and a certificate is produced by the Appellant which he says confirms the event. There are also some photographs.
15. The Appellant says that it was then necessary to leave the aunt's house and they moved into a vacant property belonging to a friend, again in the region of Tbilisi. Relatives raised enough money between them for an agent and the Appellant came to the United Kingdom. There was insufficient money for her son to accompany her and he remains in Georgia with her husband's parents.
16. Finally, since arriving in the United Kingdom the Appellant has heard from a neighbour that the KGB has left two summonses for her and her husband to attend their office or the police station and this, the Appellant says, demonstrates that her life is still in danger in Georgia and so she cannot return.'
(i) On 15 August 2003 Mr M.J. Blandy, Adjudicator, gave various directions including a direction that the respondent should serve a copy of Mr Neyman's Determination so that this would be available at the hearing of the Appellant's appeal
(ii) The Appellant's representatives took exception to this direction and they applied to the Deputy Regional Adjudicator who, on 11 September 2003, stated the following:
'You object to the directions given by the Adjudicator for the production of the husband's Determination and the other documents relating to the husband's application for asylum.
Your client based her claim on the basis of her husband's activities and as such the Home Office would be entitled to cross-examine your client and her husband in relation to it. In the circumstances it would only be right for the Adjudicator to have that information before him. I agree that the Determination in the husband's case should not be before the Adjudicator. The Adjudicator's direction to that extent is rescinded.'
'Counsel for the Appellant did not seek to resist that amended direction. The difficulty, of course, was that the Respondent was not represented at the hearing and so there would be no cross-examination on the basis of information available to the Respondent relating to the husband's appeal. I indicated to counsel for the Appellant that I was minded to take a different view with regard to the Determination in the Appellant's husband's appeal and that I would read it before the hearing commenced. I reached this decision because the Appellant had prepared for the hearing in expectation of a cross-examination based upon the husband's Determination and so would not be disadvantaged if I had available to me details contained within the Determination. I regarded the Determination of the husband's appeal as an authoritative Determination of the facts relating to the husband's evidence as at 15 November 2002. I indicated that I would be happy to hear any evidence relating to matters subsequent to that hearing but that I was not prepared to revisit the decision that had already been made by the first Adjudicator in relation to the Appellant's husband's evidence. The Appellant's case was that her husband had not disclosed to her any of the difficulties he had experienced as were set out in his own asylum claim and therefore the adverse credibility finding reached by the Adjudicator in respect of the husband's evidence did not mean that a similar view would necessarily have to be taken of the evidence of the Appellant herself.'
(i) The present Adjudicator should have followed and been bound by the direction contained in the Deputy Regional Adjudicator's letter.
(ii) The present Adjudicator should have recognised that Mr Neyman's Determination was not part of the Respondent's case, in that it had not been formally put forward by the Respondent. The Adjudicator should therefore have recognised that, as the proceedings were adversarial and not inquisitorial, the Determination of Mr Neyman was not part of the evidence adduced in the case and should not have been looked at by the Adjudicator.
(iii) Prior to the hearing the Appellant and her husband, and indeed she herself, had been proceeding on the basis that the Adjudicator would not read the Determination in the husband's case.
(iv) The present case was a case for cross-examination and the Adjudicator should only have reached an adverse credibility finding in respect of the husband's evidence after hearing him cross-examined. He should not have treated Mr Neyman's Determination as authoritative as to the husband's evidence.
(v) The Appellant perceived herself to have been the subject of an unfair hearing.
(vi) There was also a point regarding the interpreter which we will deal with separately below.
'(4) On an appeal under Section 82(1) or 83(2) against a decision an Adjudicator may consider evidence about any matter which he thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision.'
'An Adjudicator or the Tribunal may allow oral, documentary or other evidence to be given of any fact which appears to be relevant to an appeal or an application for bail, even if that evidence would be inadmissible in a court of law.'
'Counsel for the Appellant confirmed that the evidence of the husband to be tendered in support of the wife's appeal was precisely that offered at his own appeal hearing, which evidence was rejected by the Adjudicator as being untrue.'
'If before the second Adjudicator the Appellant relies on facts that are not materially different from those put to the first Adjudicator, and proposes to support the claim by what is in essence the same evidence as that available to the Appellant at that time, the second Adjudicator should regard the issues as settled by the first Adjudicator's Determination and make his findings in line with that Determination rather than allowing the matter to be relitigated.'
We are aware that there was some extra evidence (namely the Appellant's own evidence) and that this was not available at the hearing of the husband's appeal as she was not in the country. However bearing in mind that (as pointed out in paragraph 20 above) her evidence only supported a small portion of the husband's account and bearing in mind that the husband's evidence as offered in the Appellant's appeal was precisely the same evidence as offered in his own appeal (which had been disbelieved), the Tribunal concludes that the Adjudicator acted consistently with the principles in Devaseelan in treating Mr Neyman's Determination as authoritative as to the credibility of the husband's evidence as given to Mr Neyman and as offered again to the Adjudicator.