Macharia v The Immigration Appeal Tribunal [1999] EWCA Civ 3001 (11 November 1999)


Royal Courts of Justice
London WC2
Thursday, 11th November 1999

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____________________MISS C M FIELDEN (instructed by Perera & Co, London E7 9HA) appeared on behalf of the Appellant.
MR R TAM (instructed by Treasury Solicitor, London SW1H 9JS) appeared on behalf of the Respondent.



Crown Copyright ©

Thursday, 11th November 1999

    1. LORD JUSTICE PETER GIBSON: The appellant, David Macharia, is a Kikuyu, born in Kenya in 1963. On 7th February 1996 he and his brother arrived in the United Kingdom and promptly applied for asylum. The grounds for the appellant’s application were that he was involved with the then unregistered political party, SAFINA, in Kenya, and that he feared persecution because another brother, John, had been killed by the Kenyan police and the appellant had refused to attend court, fearing for his safety, having named the police officers who had done the killing.
    2. On 3rd June 1993 the appellant attended an interview that was recorded. In July 1996 the Respondent Secretary of State for the Home Department refused his application for asylum, and leave to enter the United Kingdom was also refused.
    3. The appellant appealed to the Special Adjudicator, but asked for a “paper hearing”. The appellant supplied written statements by himself and his brother and Amnesty International and newspaper reports.
    4. On 18th December 1997 the Special Adjudicator conducted a hearing of the appeal in the absence of the appellant or any representative of his in accordance with Rule 33(4) of the Asylum Appeals (Procedure) Rules 1996 (“the Procedure Rules”). The Secretary of State was represented by a presenting officer who produced a bundle of documents including Home Office briefing notes on SAFINA and the asylum interview record. The Special Adjudicator accepted that the appellant was a member of SAFINA and was involved in its activities and that he was arrested twice because of his membership. She also accepted that his brother, John, had died following his arrest by the police. She concluded:

“The oral evidence and background information on Kenya lead me to conclude that what the Appellant is stating has occurred and that there is a serious possibility that he has such a fear as he asserts and that the events of which he is in fear will occur if he is returned to Kenya. On the totality of the evidence before me I am satisfied that the appellant has made out the basic facts on which he founds his claim for asylum under the Convention.”

    1. The Secretary of State with the leave of the Immigration Appeal Tribunal appealed to that Tribunal. At the Tribunal hearing on 7th April 1999 the appellant was represented by counsel, Miss Fielden, who appears before us today. She applied to the Tribunal to allow the appellant to give oral evidence but that was refused. The presenting officer for the Secretary of State was permitted by the Tribunal to put in a further document of which no notice had been given. That document was the United States State Department Human Rights Practices Report on Kenya for 1998 (“the US report”). That consists of 21 closely typed pages. Miss Fielden has told us that she protested at that. The Tribunal Chairman stated that he had been able to print out further material available on the Internet. This material, Miss Fielden has told us, was a voluminous bundle of documents, she thinks of about 1 inch in thickness. It included the Home Office Country Assessment – Kenya, dated March 1998 (“the Home Office Assessment”).
    2. The Chairman allowed Miss Fielden ten minutes to look at the material. She asked for a copy of what the Chairman produced but the Chairman said he did not have one to give herbut lent her his copy; so she had ten minutes to read all the new material that was produced that morning, that is to say the US report as well as the bundle including the Home Office Assessment. The time allowed, Miss Fielden has told us, did not permit her to do more than take a cursory look at that material.
    3. The Tribunal, by its decision, promulgated on 24th May referred to that part of the Home Office Assessment which dealt with SAFINA. It noted that SAFINA became a registered party in November 1997. The Tribunal referred to a letter dated 18th February 1998 from the High Commission in Nairobi. That was a document, notice of which had been given to the Appellant. The Tribunal also referred to a change in SAFINA’s position since September 1996 and to the greatly reduced likelihood of harassment of SAFINA members. The Tribunal then referred to the US report, noting that it did not make reference to the position of SAFINA or to the persecution of SAFINA members. It concluded that there was no reasonable likelihood of persecution of the appellant by reason of his political affiliations were he to return to Kenya. The Tribunal rejected the evidence of the appellant that he feared a return to Kenya because of the position relevant to his brother. It concluded that in the circumstances prevailing in Kenya at present and on the basis of its findings in relation to the position of the appellant within SAFINA, there was no reasonable likelihood of persecution were he to return to Kenya. Accordingly, the appeal of the Secretary of State was allowed.
    4. The appellant now appeals to this Court with the leave of the Tribunal. Miss Fielden submitted that a number of issues arose. Her substantial submission relates to the way in which the Tribunal accepted new documentary evidence for which no notice had been given under the Procedure Rules and she also complains of the way the Chairman put in evidence of his own. She asks the question: what amounts to a fair opportunity for an appellant to address new evidence produced against him on the morning of the hearing?
    5. What evidence can be before a Tribunal is prima facie to be found in Rule 27 of the Procedure Rules. By paragraph (1) of that rule the Tribunal may receive as evidence the summary made of any evidence which had been received by the Special Adjudicator. Paragraph 2 reads:

“(2) If any party to the appeal wishes to adduce evidence before the Tribunal further to that to be received in accordance with paragraph (1) above, he shall give notice in writing to that effect to the Tribunal indicating the nature of the evidence; and any such notice shall be given –

(a) in the case of the appellant,with the notice of appeal or assoon as practicable after notice of appeal is given or is deemed to have been given;

(b) in the case of any other party,as soon as practicable after he has been notified of the appeal. (3) In any proceedings on an appeal –

(a) the Tribunal may, in its discretion, receive or decline to receive further evidence of which notice has been given in accordance with paragraph

(b) (2);

(c) (b) if, to enable it to arrive at a proper determination of the appeal, the Tribunal requests the furnishing of further evidence relating to specified matters, it shall receive such further evidence;

(c) where such further evidence as is mentioned in sub-paragraph (a) or (b)falls to be received it shall be given, as the Tribunal may direct, either -(i) orally, in which case the Tribunal may take the further evidence itself or remit the appeal to the same or another adjudicator for the taking of that evidence, or (ii) in writing, in which case it shall be given in such manner and at such time as the Tribunal may require.”

    1. Rule 18 deals with the adjournment of hearings, Paragraph (1) stating:

“Subject to rule 16, the Tribunal shall not adjourn a hearing unless it is satisfied that an adjournment is necessary for the just disposal of the appeal.”

    1. Rule 16 requires every appeal to be decided not later than 42 days after the date of service on the Tribunal of the appellant’s notice of appeal unless time is extended.
    2. Paragraph (2) of Rule 18 says this:

“When considering whether an adjournment is necessary, the Tribunal shall have particular regard to the need to secure the just, timely and effective conduct of the proceedings.”

    1. The language of that rule is matched to some extent in Rule 23 relating to the conduct of appeals. This provides:

“(1) The appellate authority may, subject to the provisions of these Rules, regulate the procedure to be followed at hearings. (2) The overriding objective shall be to secure the just, timely and effective disposal of appeals and, in order to further that objective, the authority may give directions which control the preparation for, and conduct of, any hearing.”

    1. The only other rule to which I should refer is Rule 44, dealing with irregularities.

“Any irregularity resulting from failure to comply with these Rules before the appellate authority has reached a decision shall not by itself render the proceedings void, but the authority shall, if it considers that any person may have been prejudiced, take such step as it thinks fit before reaching a decision to cure the irregularity, whether by amendment of any document, the giving of any notice or otherwise.”

    1. It is not in dispute that the production by the presenting officer of the US report, not being the subject of a notice, amounted to a contravention of Rule 27(2). It is also not in dispute that the Tribunal had to assess the circumstances in Kenya at the date of the hearing of the appeal (see Sandralingham and Ravichandran [1996] Imm AR 1997). If the Secretary of State wished to argue that circumstances had changed materially since the hearing before the Special Adjudicator, then it was for him to produce the further evidence to make good that argument, but in compliance with Rule 27(2).
    2. Mr Tam for the Secretary of State has submitted to us that it is both undesirable and indeed futile to construe Rule 27 strictly. He says that the Tribunal has a discretion to admit evidence even where no notice has been given. He points out that there is no express prohibition in the Procedure Rules against the Tribunal receiving new evidence. That is literally true, but, in my judgment, given the terms of Rule 27(2) and the use of the word, “shall”, in “he shall give notice in writing”, and the express discretion conferred by Rule 27(3)(a) to receive or decline to receive further evidence limited to evidence of which notice has been given, Mr Tam’s submission is a very bold one.
    3. In the circumstances, it would seem to me to be remarkable if a statutory Tribunal, whose powers and functions are to be found in the statute and the regulations made pursuant to the statute, were to have an implied and unexpressed power to receive further evidence without notice. Mr Tam pointed to Rule 27(3)(b) as enabling the Tribunal to achieve the same result by another route. That in an appropriate case may be so, but that does not seem to me to justify the implication of a power for this statutory Tribunal to admit evidence of which no notice has been given. The Tribunal may, in the circumstances spelt out in Rule 27(3)(b), require evidence to be produced, but when that occurs, as Mr Tam rightly accepted, the Tribunal would have to exercise its powers under paragraph (3)(c) in such a way as to enable the other party to have full opportunity to deal with the evidence.
    4. The Tribunal also has the power under Rule 18 to adjourn a hearing. It appears from Jackson’s Immigration: Law and Practice (1996), paragraph 25-40, that the Tribunal has traditionally admitted documentary evidence which is relevant even if adduced at the hearing. The author explains that the requirement of notice is met through the offering of an adjournment to the other party. That may not meet the requirement of Rule 27(2)(a) or (b) requiring notice of further evidence to be given as soon as practicable. But, for my part, I think that that provision may be directory only, and in a case where justice requires, it must be right that the Tribunal is able to allow important evidence to be received by treating the application to adduce the evidence as the notice and allowing an adjournment to enable the other party to deal with it.
    5. Mr Tam further submitted that the Tribunal was able to draw upon sources of relevant information which the Tribunal itself might have, though he qualified that by adding, rightly in my view, the proviso that the Tribunal must give the parties a fair opportunity to deal with that material. Mr Tam asks why there should be a difference between that and the position where a party wishes to adduce further evidence without notice. The answer to that appears to me to be that the Procedure Rules cater specifically for the circumstances in which a party may adduce further evidence and impose restrictions thereon. The Procedure Rules are silent as to the Tribunal itself adducing evidence. However, I am inclined to accept that the Tribunal may treat material of which it itself has knowlege as in evidence before it, provided that the safeguard, which Mr Tam accepted, of the parties being given a fair opportunity to deal with the material is observed. I say that because of the remarks of Steyn LJ in Abdi and Gawe [1994] Imm AR 402 at 420, approved as they were by this Court in Gnanavarathan [1995] Imm AR 64 at 70.
    6. Mr Tam further submitted that as an asylum seeker may be the person who is seeking to adduce the further evidence without notice, it would be wrong to exclude what may be vital evidence. I accept that; but the answer to that point is not to imply a discretion at large in the Tribunal to receive further evidence without notice but to require the Tribunal to adopt either the route of Rule 27(3)(b) or Rule 18 to allow such evidence in.
    7. The safeguard to which I have referred requires a party other than the party producing new evidence to have a fair opportunity to deal with that evidence, and that must entail that he has time both to consider the material and also to see whether any further relevant material needs to be adduced to counter the new evidence. That may well necessitate an adjournment.
    8. Of course, the Tribunal faces the discouragement in Rule 18(1) and (2) against granting adjournments. A Tribunal has to have particular regard to the need to secure the just, timely and effective conduct of the proceedings. It may be that this consideration, together with the requirement in Rule 27(2) that further evidence will only be admitted on notice, will lead the Tribunal to the conclusion that there should be no adjournment and that the further evidence should be excluded. There may be circumstances where, in the interests of justice, or for the effective disposal of the appeal, it would be proper to grant an adjournment, particularly in a case where it is the asylum seeker putting in the further evidence. Throughout, the Tribunal has to bear in mind that an asylum decision has potentially grave consequences for the asylum seeker whose very life may be put at risk by an adverse decision (see, for example, Lord Bridge’s often cited comments in the R v Secretary of State for the Home Department, ex parte Bugdaycay [1987] AC 514 at 531). The Tribunal could not properly admit further evidence which another party wishes to adduce in breach of the Procedure Rules when that course prejudices the asylum seeker by denying him an adequate opportunity to deal with that evidence. Miss Fielden’s main point before us is that the appellant was not given an adequate opportunity to deal with the further evidence which the Secretary of State adduced in the form of the US report, nor was she given an adequate opportunity of dealing with the material the Tribunal itself produced.
    9. We have seen the record of the proceedings before the Tribunal. This is a brief document. It states that the Tribunal informed both parties that prior to the hearing, it had taken off the Internet a copy of the latest Home Office Assessment. It also refers to the presenting officer producing the US report. The Tribunal, the record states, agreed to accept this, notwithstanding that notice had not been given, considering that it was a document in the public domain. It records that Miss Fielden asked for a short adjournment to enable her to consider these documents, that the Tribunal agreed to this and that it pointed out to Miss Fielden the passages in the Home Office Assessment which it considered relevant to the appeal. The record also states the adjournment was for ten minutes.
    10. Miss Fielden has told us that her recollection of events is slightly different. She says that she was presented with the US report immediately before the hearing started and that she protested strongly to the Tribunal. As she put it, she made “quite a fuss”. She also says that she protested about the documentation produced by the Tribunal itself. She says that she was “battered down” to ask for an adjournment and was told that she could have ten minutes. She says that it was made clear to her that that was a concession and that she would not get further time. After the ten minutes, she tell us, she had not finished reading the documentation and she made her unhappiness known to the Tribunal.
    11. Unfortunately, we do not have any evidence from the presenting officer who was present on that occasion; we must therefore accept what Miss Fielden has told us, with which the record is not materially inconsistent, as representing substantially what did occur.
    12. The question is whether the appellant was given an adequate opportunity to deal with the new material that was presented so late and, in the case of the US report, contrary to the provisions of the Procedure Rules.
    13. I am not satisfied that the appellant did have that opportunity. It seems to me that ten minutes were a wholly inadequate time in which to assimilate all the material which was produced, still less did it give the appellant’s representatives any adequate opportunity to consider whether there was further evidence which the appellant might wish to be produced to the Tribunal to counter the new material. Miss Fielden has submitted that had the appellant been given adequate time to consider the material, the immediately preceding United States State Department Report (of which the US report was only an update) would have been produced to the Tribunal, because it dealt with matters which were not referred to in the US report. The fact that the US report could in a sense be said to be in the public domain, because it was published and available to all who sought it, does not, to my mind, detract from the fact that it was new evidence, notice of which should have been given if it was to be relied on. There are numerous sources of information about a particular country which in any given case might be thought relevant. Bearing in mind in particular that it was the Secretary of State who was the appellant, I think that the US report really should have been produced on notice in sufficient time for the appellant to consider that evidence properly.
    14. I fear, therefore, that the appellant did not have a hearing which was entirely fair procedurally. No doubt this was because the Tribunal was anxious to get on with the case, and it is notorious that the Tribunal is subject to an enormous volume of work. But I fear that the Tribunal inadequately recognised its duty to be fair to an asylum seeker when new material is produced.
    15. Mr Tam at one stage submitted that it was not open to the appellant now to complain of what occurred before the Tribunal. That, he said, should have been done at the time. But he has very properly not pursued any argument on waiver, rightly so in view of what Miss Fielden has told us of her protestations at the time.
    16. It is unnecessary to discuss further points which Miss Fielden had sought to take in her notice of appeal relating to the refusal of oral evidence by the Tribunal and to the Tribunal reaching conclusions adverse to the appellant on matters which had not troubled the Special Adjudicator. Those arguments had no prospect of success as Miss Fielden rightly recognised.
    17. But for the reasons which I have given, I conclude that this appeal must be allowed, the determination of the Tribunal set aside and that there must be a further hearing before the Tribunal.
    18. LORD JUSTICE SEDLEY: Although manifestly this Court has jurisdiction to entertain the issue which has been argued, the challenge is, in my view, of a class which ought to be made by way of Judicial Review. The Crown Office List is the natural forum for questions of natural justice arising from tribunal proceedings. Any allegation that there has been a want of fair procedure typically raises questions both of law and of fact: in other words, questions not only of what the relevant rules were but of what happened. The latter ordinarily requires evidence, and such evidence is ordinarily given on affidavit. While this Court has power to admit fresh evidence, this is normally only in relation to factual issues canvassed below.
    19. The present case is not of this kind. It concerns not what was argued but what happened. The proper course would have been and should be in future to put the applicant’s account of events on affidavit. In this case it would be Miss Fielden’s affidavit and another counsel would have to conduct the case. If permission is granted, both the Home Office and the Immigration Appeal Tribunal will be served with notice of motion, and each, if so advised, may put in its account of events. This may be important where, as here, the conduct of the Tribunal itself is in question. If there is a conflict, the court of judicial review has means of resolving it.

For the present, however, Mr Tam has raised no objection to our proceeding by way of appeal. His instructions have not required him to contest Miss Fielden’s account of what went on, save in so far as it conflicts with the Chairman’s record of proceedings.

    1. Upon this basis Peter Gibson LJ has given reasons with which I respectfully agree, for concluding that the present appellant was not given a fair opportunity to deal with substantial and possibly significant materials produced at the 11th hour, both by the Home Office presenting officer and by the Tribunal Chairman himself. This is enough to dispose of the appeal, without deciding whether the requirement in Rule 27(2)(b) for notice of further evidence to be given as soon as practicable after the giving of the notice of appeal is susceptible of waiver, either by consent or, failing consent, by the Tribunal.
    2. For my part I do not find this an altogether easy question in the light of current authority, though, like my Lord, I would incline to the view that the substantial purpose of the rule will accommodate waiver of its time element in the interest of substantial justice, so long as no procedural unfairness results. But this appeal has proceeded upon the mutual assumption that the further evidence was admissible under the rules. Upon that shared assumption, I agree that the appeal on the question of natural justice succeeds.
    3. SIR CHRISTOPHER STAUGHTON: I accept that the Immigration Appeal Tribunal has power to admit fresh evidence in certain limited circumstances even though written notice has not been given in advance of the hearing. It can, for example, be done if all parties consent, or (I think) if written notice is given then and there, and an adjournment is granted, long or short as the case may be. But in the absence of consent, there is no right to adduce unannounced fresh evidence. It is a matter for the Tribunal to decide whether that course should be taken, with an adjournment. I can well understand that adjournments are discouraged by Rule 18; this huge backlog of asylum cases makes that necessary.
    4. The solution to this appeal depends on the facts as to what happened before the Tribunal. Miss Fielding has told us what she remembers. There is nobody here from the Home Office, but we have the Tribunal’s record which states that Miss Fielden asked for a short adjournment which was granted for ten minutes. That would appear to have been insufficient.
    5. In the circumstances of this case I feel that we must allow the appeal and remit the case to the Immigration Appeal Tribunal. For the future, a party to an immigration appeal or his representative who feels that there has not been a fair hearing should record the circumstances in writing immediately and send a copy to the Home Office and the Tribunal. That would at least go some way to avoiding the problem that we face today.

(Appeal allowed; costs and legal aid taxation to appellant).