Issue 49 June 2010 - Current Awareness, Procedure in Asylum Tribunals
ASYLUM AND IMMIGRATION - HA and TD v Secretary of State for the Home Department [2010] CSIH 28
In allowing one appeal and dismissing another, the Inner House dealt with the general principles governing procedural fairness in proceedings before the Asylum and Immigration Tribunal.
The factual basis of the appeals is not important to this summary but the principles which the Inner House identifies are. Both were cases in which asylum was claimed in addition to protection on art.3 grounds. In both, the critical question is whether the immigration judge was entitled to base his conclusion to some extent upon a matter which had not been raised during the course of the hearing before him. This is a question which has been raised in numerous recent appeals, and applications for leave to appeal, to the court.
Held: (1) Procedure before the Tribunal is regulated by the Asylum and Immigration Tribunal (Procedure) Rules 2005 (SI 2005/230), as amended. The overriding objective of the Rules is "to secure that proceedings before the Tribunal are handled as fairly, quickly and efficiently as possible" (r.4). The Rules contain a number of requirements which are designed to secure procedural fairness, but they do not replicate ordinary judicial procedures. That reflects, to some extent, certain practical difficulties commonly experienced in asylum and immigration appeals. Subject to the Rules, the Tribunal has the power to decide the procedure to be followed in relation to any appeal or application (r.43(l)). In doing so it must however act fairly.
(2) What fairness requires means a consideration of general observations made by Lord Mustill in R v Secretary of State for the Home Department, ex.parte Doody [1994] 1 A.C. 531 at 560, "what fairness demands is dependent on the context of the decision". An overall judgment must therefore be made in the light of all the circumstances of a particular case.
(3) One factor which has been emphasised in numerous cases is the specialist nature of the Tribunal (see e.g. AH (Sudan) v Secretary of State for the Home Department [2008] 1 A.C. 678). This has implications for procedure before the Tribunal: although the procedure is adversarial (R v Secretary of State for the Home Department, ex parte Abdi [1996] 1 WL.R. 298 at 301 per Lord Mustill), the Tribunal is not confined to a consideration of the evidence and submissions presented to it by the parties. In that regard, the observations made by Sedley J. and cited in Secretary of State for the Home Department v Abdi [1994] Imm. AR 402 at 412, in relation to adjudicators appointed under the previous legislation, remain relevant: "Adjudicators are not recruited from the Clapham omnibus. They are skilled and specialised office-holders carrying out an independent and, in many respects, judicial function of profound importance to the individuals who come before them ... From case to case they will build up a fund of information about different third countries. It would be wrong, of course, for them to decide cases upon the basis of private information of this kind; but it would also, in my judgment, be wrong for them to ignore such information and close their minds to everything except the evidence that the Home Office chose or the applicant was able to put before them."
(4) Similarly, the Tribunal may identify an issue which has not been raised by the parties to the proceedings, but it will be unfair, ordinarily at least, for it to base its decision upon its view of that issue without giving the parties an opportunity to address it upon the matter.
(5) As an expert body, the Tribunal is en-tided to reject evidence notwithstanding that the evidence has not been challenged before it. Fairness may however require it to disclose its concerns about the evidence so as to afford the parties an opportunity to address them.
(6) There is, on the other hand, no general obligation on the Tribunal to give notice to the parties during the hearing of all the matters on which it may rely in reaching its decision.
(7) There are circumstances where, as a matter of fairness, the Tribunal cannot remain silent in the face of the evidence presented to it. The Tribunal is not under a general obligation to air its concerns about the evidence presented to it, even if the evidence is unchallenged.
(8) Circumstances can arise in which the Tribunal cannot fairly adopt the passive role which a judge or a jury would ordinarily adopt. Such circumstances are particularly apt to arise in situations where the Secretary of State is unrepresented at the hearing before the Tribunal. The difficulties which can arise in securing a fair hearing in such circumstances have long been recognised by the Tribunal itself, see MNM v Secretary of State for the Home Department [2000] INLR 576. They were also recognised by the Inner House in Koca v Secretary of State for the Home Department, 2005 S.C. 487.
(9) Finally, it was necessary to bear in mind that a procedural impropriety will not vitiate a decision if it is apparent that no prejudice was suffered: Ahmed v Secretary of State for the Home Department [1994] Imm. AR 457 (following Malloch v Aberdeen Corporation, 1971 S.C. (HL) 85 at 104 and 118).