United Kingdom Asylum and Immigration Tribunal

YB (Allegations against adjudicator: Presidential note) Jamaica [2005] UKIAT 00029

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 17 January 2005

Date Determination notified: 01 February 2005

Before
John Freeman (a vice-president) Catriona Jarvis (a vice-president) and Alan Jones
Between

 

YB	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

Mr L Lourdes (counsel instructed by Anthony & Roberts) for the claimant Miss M English for the respondent
DETERMINATION AND REASONS
1. This is an appeal from a decision of an adjudicator (Mr EH Woodcraft), sitting at Bradford on 23 March 2004, dismissing an asylum and human rights appeal by a citizen of Jamaica, now 24. Permission to appeal was given on the basis of a claim apparently suggesting that the adjudicator had refused to hear a witness for the claimant, a Mr Kamaley Clarke.
2. The relevant history of the case follows:

08.03.2001	claimant given one month's leave to enter
14.05.2002	arrested as overstayer and claims asylum
18.06.2002	asylum refused and notice of removal directions given
09.10.2002	first appeal to adjudicator heard
02.12.2002	decision issued: dismissed
14.02.2003	leave to appeal given
18/27.02.2003	claimant commits four offences of supplying crack cocaine
30.06.2003	convicted and sentenced to 18 months' imprisonment
17.07.2003	first appeal to Tribunal heard
22.08.2003	decision issued: remitted for fresh hearing
02.10.2003	notice of intention to deport (for public good)
23.03.2004	second appeal to adjudicator heard (against both decisions)
29.04.2004	decision issued: dismissed

3. It follows from the date of the decision now under appeal that this appeal can only succeed on a point of law: see CA [2004] EWCA Civ 1165, and the extended definition of "point of law" in E & R [2003] EWCA Civ 49. If the claim about refusing to hear the witness were made out, that would be one; and that is the main ground on which permission to appeal was given, some time before the decision in CA came out. The grant of permission also referred to two decisions on "issues relating to a sufficiency of protection for homosexuals [the claimant is a Lesbian] and internal relocation in Jamaica"; but those were not relied on by the draftsman of the grounds of appeal, and we see nothing either in the grounds or the adjudicator's decision itself capable of raising any arguable error of law on his part, except for the claim about the witness.
4. That was the subject of a direction by Goldstein VP who gave permission to appeal, requiring either:

•    an affidavit or statement of truth by counsel (not Mr Lourdes, but a Mr Shamin) who had appeared before the adjudicator, attaching any notes to support the account of what had happened; or

•    if the claim could not be made out, an affidavit or statement by the draftsman of the grounds of appeal, explaining how it came to be made.

On 3 September 2004 the Tribunal wrote to the claimant's solicitors, reminding them of the directions: on 14 September they wrote back, explaining that counsel was unable to support the claim which had been made, and the person who had made it did not work for them any more. On 19 October they sent in a statement by that person, a Mr . He explained that he had not meant to make any claim that the adjudicator had refused to hear the witness: the witness had arrived late, and, for whatever reason, it had been counsel who decided not to call him. The writer said the point he had been trying to make was simply that hearing the oral evidence of Mr Clarke would have resulted in a fairer decision by the adjudicator.

5. What the ground in question (§ 13) had actually said was this: "The hearing was unfair and so breached ECHR Article 6 because the crucial witness Mr Kamaley Clarke was not afforded the opportunity to give oral evidence even though he attended the court." As is the practice when grounds are settled by solicitors, they were not signed by the draftsman: we are not surprized that Goldstein VP should have read this one as a complaint against the adjudicator, as there could have been no reasonable ground of appeal based on anyone else's decision that Mr Clarke should not be called. We are however prepared to accept that this had not been Mr Domas-Pheghe's intention.
6. As Goldstein VP noted, the adjudicator recorded at § 15 that he was told by counsel that Mr Clarke had attended court late, and so could not be tendered for cross-examination: there had been a written statement by him before the adjudicator. The adjudicator in his observations on statement confirms this, and that he would of course have been ready to hear the witness if he had been told he was there: he notes the absence of anything from Mr Shamin, counsel before him. The presenting officer (Miss Donnelly)'s file-note, produced before us records that the claimant "… wanted to call her cousin [Mr Clarke] but he hadn't arrived by 12.45 when [she] had completed her evidence." She expressed surprize, not unreasonably, that another witness (a Miss , the Lesbian partner of the claimant) had not been called.
7. Mr Lourdes told us that both Mr Clarke and Miss who were present before us, said they had both been there at least before the end of the hearing before the adjudicator: afterwards they had been told by Mr Shamin that he had been unable (rather than unwilling to call them). Assuming that counsel did say something they understood in that way, his motives for doing so are not clear, and for all we know he might have simply been trying to explain his own decision without undue embarrassment. There is nothing to show that either of them had any first-hand knowledge of what had gone on in the hearing room: it is of course the practice before adjudicators, as with criminal courts, for witnesses, other than the subject of the case, to remain outside till called. What is crystal clear is that the adjudicator himself did nothing whatsoever to prevent either Mr Clarke or Miss (about whose evidence there is in any case no complaint in the grounds of appeal) from being called before him.
8. It was the loosely-drafted grounds of Mr Paul which led to the elaborate and expensive machinery of a second appeal (in fact the fourth in this case) being brought into operation. We note that he is no longer working for these solicitors, and we accept that he had no intention of deliberately misleading the Tribunal; but we have to say that more care should be taken before putting in proposed grounds of appeal which could be read as a serious allegation against the adjudicator's conduct of the proceedings.
9. The following is the gist of Ouseley P's note to vice-presidents of 23 November 2004, suitably modified for the guidance of persons advising claimants (or presenting officers) where such allegations are being considered:

If the allegation is very general, and more in the way of a throwaway line, it is likely to be dealt with on the application for permission to appeal as wholly unsubstantiated, bearing in mind the inherent seriousness of such an allegation.

If the allegation is more particularised in the grounds of appeal, it may be treated as arguable. "Particularised" means not only that it should have some detail to support the point, but it should be apparent that the allegation is being made or supported by someone who was arguably in a position to know what happened. If that is not the case, then the applicant can be said not to have shown that the case was reasonably arguable.

This is not to say that the grounds should be accompanied by a witness statement, nor that if the grounds are signed by someone who was not there, that they must fail. They must however go beyond a vague general assertion, and show something of significance which the party was willing and able to support. They should also show that there was the prospect of evidence being obtained for the appeal.

10. In the present case, as we have seen, not only did the evidence eventually obtained show no misconduct whatsoever of the hearing by the adjudicator; but that the grounds were never intended to claim that there was in the first place.

Appeal dismissed

John Freeman

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