United Kingdom Asylum and Immigration Tribunal

APPEAL No. MD (good reasons to consider) Pakistan [2004] UKIAT 00197

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 18 May 2004

Date Determination notified: 16 July 2004

Before
Mr J Perkins (Vice President) HH Judge G Risius CB (Vice President) Mr D J Parkes (Acting Vice President)
Between

 

MD	APPELLANT
Secretary of State for the Home Department	RESPONDENT

DETERMINATION AND REASONS
1. Before us the Respondent was represented by Mr A Hutton, a Senior Home Office Presenting Officer. The Appellant did not appear and was not represented.
2. The papers show that notice of hearing was sent to the Appellant at his home address in Leeds and to his solicitors, Maher & Co of Harrow, by first class post on 30 October 2003. This is good service in law but on this occasion we asked the usher to contact the solicitors' offices to see if there was any explanation for their not attending. There was. The usher was told that the office had been damaged by fire and many papers had been destroyed. Additionally members of staff handling immigration matters had left. Since the hearing we have received a letter from the solicitors confirming all this. The point is that the solicitors did not actually know about the hearing. Given the nature of the criticisms made in the grounds of appeal we decided to carry on in their absence.
3. The Appellant is a citizen of Pakistan. He was born on 23 August 1959 so is now 44 years old. He appeals the decision of an Adjudicator, Mr M Davies, who in a determination promulgated on 3 July 2003 dismissed the Appellant's appeal against the decision of the Secretary of State that he was not entitled to refugee status and that removing him from the United Kingdom was not contrary to his rights under the European Convention on Human Rights.
4. Although the grounds of appeal extend to 11 paragraphs they essentially make two points. In part they complain about the Adjudicator's attitude. They suggest he was impatient and inattentive to the case before him. We attach no weight whatsoever to those criticisms. There is nothing before us to substantiate them and we find them somewhat unattractive coming, as they do, from a firm of solicitors whose own attention to the case did not extend to ensuring that the Appellant produced a witness statement in accordance with directions.
5. The second point in the grounds of appeal arises from the Adjudicator's decision to refuse to receive a witness statement on the morning of the hearing. The statement had not been served in accordance with directions. According to the determination the Adjudicator announced that he was considering determining the appeal under the provisions of Rule 45(1)(c) or 45(1)(ii) of the Immigration and Asylum (Procedure) Rules 2003. We assume that the "Immigration and Asylum (Procedure) Rules 2003" is an inaccurate description of the Immigration and Asylum Appeals (Procedure) Rules 2003. Rule 45(1)(c) provides:-

"An Adjudicator … may … determine an appeal without a hearing if … (c) a party has failed to comply with a provision of these Rules or the direction of the Appellate Authority, and the Adjudicator …is satisfied that in all the circumstances, including the extent of the failure and any reason for it, it is appropriate to determine the appeal without a hearing;".

6. The reference to Rule 45(1)(ii) puzzles us. There is no such Rule in the Immigration and Asylum Appeals Procedure Rules 2003.
7. The Adjudicator says in paragraph 1 of his determination that the Appellant has failed to comply with directions made on 4 February 2003, 2 April 2003 and 30 May 2003. We note additionally that the application was refused under paragraph 340 of HC 395 because the Appellant did not comply with the requirement to attend for interview and, as indicated above, he did not appear before us.
8. However the directions given on 4 February 2004 were standard directions requiring the Appellant to complete a Reply. The Appellant did not mark box A and B as directed but he did mark box C explaining that he was not ready to proceed and referring to a letter that he attached to the reply. The directions given on 2 April 2003 were the standard directions requiring a witness statement, an indexed bundle, a skeleton argument and a chronology. These were repeated in directions issued on 30 May 2003. There is a file note dated 16 June 2003 indicating that a clerk had "chased" the Appellant for a bundle.
9. The Adjudicator was faced with an Appellant and representative who appeared to be ready for a hearing. The Appellant wanted to give evidence and wanted to serve on the morning of the hearing a witness statement. The Adjudicator should have, and should have shown in the determination that he had, addressed his mind to the requirements of paragraph 48(5) of the Immigration and Asylum Appeals (Procedure) Rules 2003. This provides that:-

"An Adjudicator or the Tribunal must not consider any evidence which is not filed or served in accordance with time limits set out in these Rules or directions given under Rule 38, unless satisfied that there are good reasons to do so."

10. The Adjudicator may well have appreciated that the Rule prohibits the consideration of evidence served late but that prohibition is subject to the qualification "unless satisfied that there are good reasons to do so". There is nothing in the determination to suggest that the Adjudicator asked if there were good reasons why he should receive the evidence. This is not the same as asking if there were good reasons why the evidence had been served late. We have to say that the grounds of appeal suggest to us very strongly that there were no good reasons for the evidence being served late. If, as is suggested, the Appellant had difficulty maintaining contact with his solicitors, or them with him, then it is a difficulty that could have been remedied by telephone calls, letters, travelling, using local agents, or instructing a different firm.
11. Although it may be easy for an adjudicator, faced with an Appellant who has failed to comply with directions and who has not disclosed his case, to forget how important his decision may be it is incumbent upon him to remember his duty. Rule 4 of the Immigration and Asylum Appeals (Procedure) Rules 2003 provides "The overriding objective of these Rules is to secure the just, timely and effective disposal of appeals". In a case considering the proper application of paragraph 45(2) of the Immigration Asylum and Appeals (Procedure) Rules 2003, Muhammad (01/TH/01223) Mr J Barnes, Vice President, said:-

"… Adjudicators should be conscious that part of their over-riding duty is to ensure a just disposal. Partly this is because a just disposal will be a final disposal; partly because there is a duty on immigration judiciary to give the most anxious consideration to applications which involve a claim that their makers fear persecution for a Convention reason if returned to [their] own country, or, since the introduction of the Human Rights Act 1998, that [they] will suffer inhuman or degrading treatment contrary to Article 3."

12. The Procedure Rules provide for the oral hearing of an appeal. The Appellant wanted to give evidence and produced a witness statement, albeit late. Adjudicators have a duty to apply the most anxious scrutiny and the high standards of fairness to the Appellant's case.
13. One of the problems of the late disclosure of evidence is that it can cause unfairness to the Secretary of State who is expected to respond to a case that he has not considered. This does not mean that it will always be right to exclude evidence that is served late. Often the late service of evidence will not really cause any difficulty to the other side, usually the Secretary of State. Often a witness statement simply repeats points that have been made previously but puts them into a better order or makes points that might be dealt with better in cross-examination in any event. Where this Adjudicator, in our view, was clearly wrong is that he decided to exclude the evidence upon which the Appellant wanted to rely without enquiring if there were any "good reasons" to admit the evidence, including if admitting it would cause any unfair problems for the Secretary of State.
14. Faced with an application of this kind it is clear to us that the Adjudicator should have reminded himself of the requirements of Rule 48(5) and addressed his mind specifically to the points raised there and, particularly if he decided to exclude the evidence, explained carefully why he was not satisfied that there were good reasons to consider it.
15. We do not intend to make an exclusive list of "good reasons" but the adjudicator should have enquired into the significance of the evidence, the reason for the late submission and any problems that late service would cause to the other side. "Good reasons" must mean more than that the evidence is relevant. Adjudicators never have to consider evidence that is not relevant at all. However "good reasons" could include the fact that the evidence is highly pertinent; that it could not have been served in accordance with directions; that the other side had notice of the nature of the evidence and that considering it causes no unfair difficulty to the other side.
16. Further in deciding whether or not there were "good reasons" to consider the evidence the Adjudicator should have considered if any unfair difficulties to the Respondent could have been corrected by an Adjournment. If it could he should then have decided if adjourning the hearing was the appropriate course bearing in mind the restraints on adjourning hearings provided by Rule 40 of the Immigration and Asylum Appeals (Procedure) Rules 2003 and the need to decide cases quickly.
17. We are very far from saying that a person who produces evidence other than in accordance with directions should automatically have it considered or have his appeal adjourned for the other side to consider it. The just consequence will sometimes be that the adjudicator must not consider the evidence that the party wants to adduce. However remedying a problem by adjourning is something the Adjudicator should have considered and on this occasion this Adjudicator did not.
18. The Adjudicator had before him an appeal that was listed for hearing. He had a represented Appellant and a representative from the Respondent who, it seems, was ready to go ahead with the hearing. The Procedure Rules show what the Adjudicator should have done when faced with an application to consider evidence that had not been produced in accordance with directions. The adjudicator was quite wrong to consider determining the appeal without a hearing without first satisfying himself that there were no good reason not to admit the statements or that the hearing could not justly go ahead and should not be adjourned.
19. Although at paragraph 7 of his determination the Adjudicator purports to have considered the requirements of Rule 45(1)(c) and has concluded that it "was appropriate to determine the appeal without a hearing" he gives no sufficient explanation for that.
20. Most significantly the adjudicator gives no indication that the Respondent has been in any way prejudiced by the late production of the statement. We have not seen the statement that the Appellant wanted to produce. Before us Mr Hutton had a copy. He said that he did not see how the Secretary of State would have been prejudiced by the late production of the statement. To borrow a phrase that used to appear in the commentary to the Rules of the Supreme Court, rules do not exist for the sake of discipline. Rule 45(1)(c) empowers the Appellate Authority to determine an appeal without a hearing but it will rarely be "appropriate" to do that where at least one of the parties wants a hearing and there is no unfairness to the other in letting a hearing go ahead.
21. With respect to the Adjudicator the approach he took on this occasion was clearly wrong. The Appellant wanted a hearing and the Adjudicator has given no proper reasons for his decision to determine the case without a hearing.
22. In the circumstances we allow the appeal to the extent that we direct that it be heard again by an Adjudicator other than Mr Mark Davies.

Jonathan Perkins

Vice President

1 July 2004