H-NB-V2

Heard at Field House			
On 18 October 2004			

IMMIGRATION APPEAL TRIBUNAL
    SA (Absence of party -late evidence.) Sri Lanka [2005] UKIAT 00028                                                           	
                                                                                                
                  Date Determination notified:

                                                                                     25 January 2005	

	Before:		

Mr N H Goldstein (Vice President)
Ms C Jarvis (Vice President)
Mr P Bompas	
Between	

	
		APPELLANT	
			
	and		

SECRETARY OF STATE FOR THE HOME DEPARTMENT
	
		RESPONDENT 	

Representation:

For the Appellant:	Ms G S Peterson, Counsel
For the Respondent:	Mr S Underwood, Home Office Presenting Officer

DETERMINATION AND REASONS

1.	The Appellant, a citizen of Sri Lanka, has been granted permission to appeal to the Tribunal against the Determination of an Adjudicator (Mr M Cohen) promulgated on 25 March 2004, when he dismissed the Appellant’s appeal on asylum and human rights grounds.

2.	The Vice President, Miss B Mensah, in granting permission considered that the grounds of appeal raised arguable issues regarding the Adjudicator’s refusal to admit into evidence a medical report submitted on the day of hearing which it was said may have made a material difference to the Adjudicator’s consideration of the case.

3.	The parties’ representatives agreed with us that this was a Determination flawed beyond cure and that the appropriate course was to allow the appeal to the extent that it was remitted for a fresh hearing before another Adjudicator.

4.	We do not propose to detail here individual aspects of the Appellant’s claim that will now have to be considered as a whole by another Adjudicator.  It suffices to observe, that the Secretary of State in his Letter of Refusal doubted the credibility of the Appellant’s account inter alia, based upon a lack of medical evidence notwithstanding that the Appellant purported to submit proof of the hospital treatment that he claimed to have received.

5.	The grounds explain that two days before the hearing of the appeal before the Adjudicator, the Appellant’s legal representatives received further medical evidence relating to the Appellant’s claimed mental difficulties from the Appellant’s GP on 25 February 2004.  It is claimed that they could not serve the document on the Court or upon the Home Office in time for the hearing.  In the meantime the Home Office gave notice that there would be no Presenting Officer at the hearing.

6.	The grounds contend that at the hearing, the medical evidence was produced and representations were made for admitting the document into evidence, in particular with reference to its import on the challenge to the Appellant’s credibility.

7.	In the event, the Adjudicator refused the application and his reasons for so doing are set out at paragraph 16 of his determination under the sub heading “Preliminary Issue”.   Three reasons were given, namely:

	(i)	The report was dated 24 February 2004 and “since the document was not produced before the day of the hearing or in accordance with the Procedure Rules I excluded it from evidence”.

	(ii)	The Respondent “would not have had the opportunity to respond to this evidence”.

	(iii)	The Appellant had been in the United Kingdom since May 2000 and there had been ample time to produce and submit such evidence.  

8.	The parties’ representatives agreed with us that it was upon the basis of the first two reasons given that the Adjudicator erred in law.  

9.	Our starting point is Rule 4 of the 2003 Procedure Rules:

		“The overriding objective of these Rules is to secure the just, timely and effective disposal of appeals and applications in the interests of the parties to the proceedings and in the wider public interest”.

10.	Rule 48(5) of the Immigration and Asylum Appeals (Procedure) Rules 2003 provides as follows:

		“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” (emphasis added).

11.	The evidence in question had not been filed in accordance with the time limit set out in the standard-form directions sent to both parties and therefore the Adjudicator clearly had the power to exclude that evidence, namely the medical report, under Rule 48(5).  The issue was however whether he was right to do so.

12.	The provisions of Rule 48(5) are mandatory in their terms.  They provide expressly that an Adjudicator must not consider any evidence which is filed or served late unless he is satisfied that there are “good reasons to do so”.  

13.	We drew to the attention of the parties, the decision of the Tribunal in AK (Admission of Evidence – Time Limits) (Iran) [2004] UKIAT 00103, in which the Tribunal, comprising two Vice Presidents, explained that the qualification “good reasons to do so” related to good reasons for considering the evidence, not good reasons as to why the evidence was not filed or served in time.

14.	It follows that the Adjudicator erred as regards the first reason given for refusing to allow the medical report to be tendered in evidence.

15.	The Tribunal in AK rightly observed:

		“There is a clear public interest in ensuring that it should not be open to parties to disregard with impunity directions given by the Immigration Appellate Authority, whether by an Adjudicator or this Tribunal.  The same public interest applies in ensuring that parties should not be entitled to disregard with similar impunity the requirements of the Procedure Rules.

	However, the understandable desire on the part of Adjudicators and this Tribunal to enforce due compliance with such directions and provisions must be balanced against a competing requirement to ensure that justice is done in a jurisdiction in which appeals routinely require the “most anxious scrutiny” and in which the issues at stake frequently involve matters of life, limb and liberty.  There is an inevitable tension between those conflicting interests.

Whilst there may be individual cases in which it would be right for an Adjudicator to exclude material, or potentially material evidence on which party (normally the Appellant) wishes to rely by reason of the failure by that party to file or serve the evidence in time, nevertheless, as a general principle, the requirement to ensure that justice is done in appeals requiring the most anxious scrutiny, will in most cases outweigh the understandable desire on the part of the Immigration Appellate Authority to ensure that its directions and the provisions of the Procedure Rules are not flouted with impunity.”

16.	This brings us back to the provisions of Rule 4 and the requirement to ensure that justice is done in appeals requiring the most anxious scrutiny.  This indeed was a factor that Mr Underwood, in supporting Ms Peterson’s submission that the appeal should be remitted, considered of particular importance in the context of this appeal. 

17.	He agreed with us that it also raised in the circumstances of this case, an issue as to perception of fairness. 

18.	In this regard, Mr Underwood most helpfully raised before us a further concern, with which we agree, that led him to conclude that this appeal should be remitted, namely; that as contended in the grounds, the Adjudicator, having refused to allow the medical report to be tendered in evidence (notwithstanding that it was available to him at the hearing), failed to consider evidence that might (and he put it no higher than that) have had direct relevance to the issue of the Appellant’s credibility.    The Adjudicator then proceeded to make adverse credibility findings that included at paragraph 34 of his Determination a consideration of the Appellant’s claim that he was in a poor state of health when he arrived in the United Kingdom and concluded that the Appellant had attempted “to enhance and bolster his claim” in terms of his evidence “concerning the reasons for his hospitalisation and length of his hospitalisation” that the Adjudicator described as “extremely damaging to his credibility”.

19.	We now turn to the second reason given by the Adjudicator for refusing permission for the report to be entered into the evidence, namely that the Respondent would not have had the opportunity to respond to it.  

20.	In fairness to the Adjudicator, we recognise that he may have had in mind the fact that, had the medical report been served in accordance with the Rules, the Respondent would have had the opportunity of considering it beforehand.  However, the Adjudicator failed to make this clear at paragraph 16 of his Determination and thus left open a concern that his refusal was also based upon the fact that there was no Presenting Officer in attendance at the hearing.

21.	In this regard, we would observe that in such circumstances it would be wrong in principle, that a party who failed to attend either in person or by his representative before an Adjudicator, should be in a better position to resist the admission of late evidence than a party who had attended.
 
22.	In this case, the Appellant’s application to tender fresh evidence was refused, inter alia, for a reason that would appear to have benefited the Respondent, notwithstanding his absence. A party that attends should not be disadvantaged by the absence of the other party.

23.	It follows that, in these circumstances, the Adjudicator’s decision to exclude that evidence from consideration was one which he ought not to have taken in the sense that he was not justified in taking that decision, notwithstanding that he was empowered to do so under Rule 48(5) in the particular circumstances before him.  In so doing, the Adjudicator allowed himself to fall into error.  

24.	For the above reasons and in accordance with the provisions of Rule 22 of the 2003 Procedure Rules, we have decided that the appropriate course is to allow this appeal to the extent that it is remitted for a fresh hearing before another Adjudicator.  

N H Goldstein
Vice-President
Approved for electronic distribution.