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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> D v Secretary of State for the Home Department (Iran) [2003] UKIAT 00087 (26 September 2003) URL: https://www.bailii.org/uk/cases/UKIAT/2003/00087.html Cite as: [2003] UKIAT 87, [2003] UKIAT 00087 |
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jh
Heard at Field House
[2003] UKIAT 00087 D (Iran
)
On 29 August 2003
Date written
Determination notified: 26.09.03
Given orally in court
Between
APPELLANT
RESPONDENT
Representation
For the appellant: Mr S Walker, Home Office Presenting Officer
For the respondent: Ms H Williams of Counsel, instructed by Young, Solicitors
"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."
"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.
J Barnes
Vice President