by Mark Henderson and Rowena Moffatt of Doughty Street Chambers
and Alison Pickup and Monika Nollet of Asylum Aid
~ Revised 2023 Edition ~
10.1 Rule 24(1) provides that:
...when a respondent is provided with a copy of a notice of appeal, the respondent must provide the Tribunal with—
(a) the notice of the decision to which the notice of appeal relates and any other document the respondent provided to the appellant giving reasons for that decision;
(b) any statement of evidence or application form completed by the appellant;
(c) any record of an interview with the appellant in relation to the decision being appealed;
(d) any other unpublished document which is referred to in a document mentioned in subparagraph (a) or relied upon by the respondent;
(e) the notice of any other appealable decision made in relation to the appellant.
(f) any documents provided to the respondent in support of the original application.
10.2 Rule 24(3) requires the Respondent to provide these documents to the Tribunal within 28 days of being served with the notice of appeal. The requirement for the Respondent to comply with rule 24(1) & (3) is repeated in the Standard Directions for appeals in the online reform procedure: see Annex A of Practice Statement No 1 of 2022.
10.2A The Home Office guidance entitled 'Bundles: preparing appeal PF1 documents and service of respondent appeal bundles' states that the Home Office must include the following documents in its bundle for in-country appeals:
• the notice of decision to which the appeal relates
• any application form and any evidence submitted with the application that has been retained (where evidence submitted has not been retained, this should be referenced in the PF1 [appeal cover sheet])
• any screening interviews
• any witness statement or preliminary information form
• any interview record
• any further submissions
• any country information, Country Policy and Information Note (CPIN) or Country Policy Information request and response referred to in the refusal letter
• any other information not listed above which is referred to in the refusal letter
• any previous refusal where there has been an appealable decision and any appeal determination (if applicable)
10.3 Check the appeal papers when you receive them to ensure that they include everything required by rule 24(1) and the Home Office's own policy.
10.4 The reference in rule 24(1)(c) to providing 'any record of an interview with the appellant, in relation to the decision being appealed' should include all interviews conducted in connection with the asylum/ human rights claim. For a discussion of the scope of rule 24(1)(d) and disclosure, see chapter 9.
10.5 The API on Disclosure and Confidentiality states that:
You must treat all information provided by a claimant in support of their asylum claim in confidence and in accordance with legislation. Data protection applies to all living people. If a claimant has died since making their asylum claim, data protection provisions may no longer apply. However, we must continue to ensure that any personal information about other living family members is treated in line with data protection legislation, and that family members are not put at risk in breach of Immigration Rule 339IA. If you are unsure about what information you can legitimately share you must refer to a senior caseworker. (p12)
10.5A There is also a section on disclosure and confidentiality in the API on Dependants and Former Dependants which reads:
There may be cases where it is considered appropriate and necessary to disclose evidence provided by one family member to another if this is the only way to properly investigate a material aspect of the claim that cannot otherwise be explored through methods that do not require such disclosure. It may also be considered appropriate and necessary to refer to evidence from dependants or other family members in the decision. Before doing so caseworkers must have due regard to confidentiality, data protection requirements and any evidence of individual protection needs relating to family members.
Under the terms of the Data Protection Act it is important to obtain informed consent from all members of the family providing evidence as part of the claim before directly referring to such evidence during an interview or in any decision to refuse the claim. An applicant may have legitimate reasons why they do not give consent, such as a fear of violence from their partner, so careful consideration needs to be given to the evidence before citing failure to give consent as a credibility issue.
10.6 Therefore, if the family details indicate anything prejudicial to the appellant's case, the HOPO is likely to supply copies at the hearing and try to cross-examine on them. If the family member's appeal was considered in private or was itself subject to an anonymity direction, they should not be producing the details at all. It is in any event a matter for the Tribunal not the Home Office whether the details may be given in private and family members anonymised in the determination. The standard anonymity direction suggested in the Presidential Guidance Note No 2 of 2022 on Anonymity Orders and Directions prohibits the identification of the appellant or any member of her family in protection appeals. Given HOPOs' practice, it is as well to request copies from the Home Office for your records if you do not already have these, so that you are not caught by surprise. Be aware that the Tribunal may itself call up a family member's determination from its records, particularly if they are to give evidence before the Tribunal.
10.7 Check that pages of interview notes have not been omitted accidentally. This happened more often when handwritten notes were taken when an interviewer has continued a note on the reverse side of the page, but only one side has been reproduced.
10.8 It is now standard practice for the asylum interview record to be typed, however, you may come across handwritten interview records in cases with some procedural history. The (now withdrawn) Asylum Instruction on 'Asylum appeal hearing - Case Management Review' said that the Home Office should 'prepare a typed copy of the interview record, if the written record is not legible.' If the Home Office notes are illegible, you should seek a direction from the Tribunal that the Home Office provide a typed transcript. The Tribunal is no more keen than you to have important documents presented in illegible scrawl rather than typescript. However, be aware that the transcripts are usually made from the handwritten notes and not by the author. They may contain errors of transcription and should be checked against the handwritten record (if you have it) or the audio recording in advance of the appeal hearing.
10.8A The Home Office will always prepare an appeal cover sheet (a PF1) which details its view of the decision under appeal, a summary of the appellant's immigration history, and a list of the documents included in the Respondent's appeal papers. Check that you have all the documents in the list. It is not uncommon for the immigration history to be incomplete or incorrect and any dispute with the Home Office presentation of the immigration history should be raised in your skeleton argument or at the outset of the hearing.
10.9 The Home Office not uncommonly fails to include in its bundle all the documents submitted with the application (contrary to Rule 24(1)).
10.10 You should check the bundle against any list of enclosures in the cover letter to an application. If the Home Office bundle is missing documents submitted with representations, if you have copies of these, it will usually be more efficient for you to provide these in the appellant's bundle, rather than seek a direction that the Home Office file and serve these. Do not, however, include material that is already in the Respondent's bundle. It is particularly important to check that any documents submitted at port have been included in the bundle which may have been omitted (due to lack of communication between the port and the Home Office). If there is a CMRH, and you have the Respondent's bundle in advance, it is worth checking with the HOPO whether he has any missing documents, especially if you don't have copies. You should also check that any original documents submitted by your client to the Home Office are either returned to you before the full hearing, or will be made available at the hearing for the Tribunal to see. Adverse inferences may be drawn against an appellant whose original documents remained with the Home Office if no attempt has been made to have these returned.
10.11 Rule 24(1)(d) and the Home Office guidance on 'Bundles' also require the Home Office to produce any unpublished document referred to in the immigration decision appealed against or otherwise relied upon. For a fuller discussion of the disclosure obligation in Rule 24(1)(d), see chapter 9.
10.12 In Macit v SSHD (12613), the Tribunal indicated that the obligation was not limited to documents referred to by name. Where the refusal letter gave particulars about the Secretary of State's 'understanding' that something was the case, the rule required him to provide any document which formed the basis of that 'understanding'. In MH (Respondent's bundle: documents not provided) Pakistan [2010] UKUT 168 (IAC), the Upper Tribunal held that where an unpublished document was referred to in the refusal letter, but not included in the respondent's bundle, the Tribunal would be entitled to conclude that the respondent no longer relied on it (and that the passages referring to it no longer formed part of the respondent's case). In Cvetkovs (visa – no file produced – directions) Latvia [2011] UKUT 212 (IAC), it observed that "A failure to provide this material is not merely a breach of the respondent's obligation under the Procedural Rules it will usually frustrate the effective hearing of the appeal" and observed that (para 2 of the headnote):
Where the respondent breaches Procedure Rules by failing to send documentation to the Tribunal, and the First-tier Tribunal issues a reasoned decision, based on the material before it, allowing the appeal, a challenge by the respondent based on sufficiency of reasons is unlikely to prosper on an application for permission to appeal to the Upper Tribunal. (Emphasis added).
10.13 The 'Bundles' guidance requires 'any country information, Country Policy and Information Note (CPIN) or Country Policy Information request and response referred to in the refusal letter' to be included within the Home Office bundle.
10.13A It is true that rule 24(1)(d) does not strictly require the Respondent to provide copies of these reports since they are 'published' but if the Respondent wishes to rely on them at the hearing, copies should be provided to the Tribunal and the appellant. Moreover, the Tribunal has deprecated judges carrying out their own research on the internet after a hearing. In EG (post-hearing internet research) Nigeria [2008] UKAIT 00015 the Tribunal said:
It is, however, most unwise for a judge to conduct post-hearing research, on the internet or otherwise, into the factual issues which have to be decided in a case. Decisions on factual issues should be made on the basis of the evidence presented on behalf of the parties and such additional evidence as the parties are aware of as being before the judge. To conduct post-hearing research on the internet and to base conclusions on that research without giving the parties the opportunity to comment on it is wrong. If such research is conducted, and this determination gives absolutely no encouragement to such a process, where an immigration judge considers the research may or will affect the decision to be reached, then it will be the judge's duty to reconvene the hearing and supply copies to the parties, in order that the parties can be invited to make such submissions as they might have on it.
10.13B However, in AM (fair hearing) Sudan [2015] UKUT 00656 (IAC), the Tribunal condoned the practice of judges accessing websites contained in the footnotes of Home Office refusal letters:
4. An increasingly familiar feature of decisions in the fields of immigration and asylum is the inclusion of footnotes with links to websites. There were nine of these in the Secretary of State's decision in the present case. This phenomenon will be quickly recognised by both judges and practitioners. The FtT Judge did not engage in some kind of independent research exercise. Rather, as stated unequivocally in [21] of the decision:
"I accessed the background information relied on by the Secretary of State as set out in the footnotes to the refusal letter."
This was an entirely legitimate exercise, since the Secretary of State was relying on the source materials identified in the footnotes and, further, the latter contained the outworkings of the précis in the text of the decision.
10.13C Whilst, therefore, AM makes clear that a Judge who follows the links in the footnotes of the refusal letter will not be committing an error of law, the judgement does not condone the Home Office practice of failing to produce the documents upon which it relies in footnotes. You should however consult all of the source materials identified in the footnotes when preparing for the appeal, both to check that the sources do in fact support the proposition for which they are relied on by the Home Office, and in order to decide whether you need to produce evidence in response. Given that the Home Office may quote selectively from sources, sometimes these linked materials will contain other evidence which is helpful to your client, or will assist in rebutting the Home Office's argument.