by Mark Henderson and Rowena Moffatt of Doughty Street Chambers
and Alison Pickup and Monika Nollet of Asylum Aid
~ Revised 2023 Edition ~
19.1 As discussed in chapter 1, much of the Home Office refusal letter may consist of claims that security forces, rebels, or refugees would not have acted in the manner reported by your client. This approach continues during the appeal. The HOPO, as if competing in a strange parlour game, will eschew evidence in favour of clever reasons suggesting what each would do next. However bizarre it may appear, you ignore such allegations at your (and your client's) peril. You should prepare to refute allegations of implausibility by the Home Office, and any similar point which you think may be taken by the Tribunal.
19.2 Your client is the obvious person to rebut allegations of implausibility. She was there after all and can give first-hand evidence. The Home Secretary was not there and usually offers no evidence whatsoever. But the Home Office may seek to denigrate your client's evidence as self-serving and partial. The HOPO will invite the judge to make an adverse credibility finding purely on the basis that the account seems surprising - from which it can therefore be inferred that she is lying. If the judge accepts this argument, then relying upon your client's credibility to rebut allegations of implausibility becomes a vicious circle.
19.3 Any suggestion that your client requires corroboration to succeed is a misdirection of law. But if the Tribunal is minded to disbelieve your client's evidence (a serious danger when evidence is given in a crosscultural situation of experiences which do not appear from a UK perspective to make logical sense), then you may lose your appeal if you cannot corroborate your client's account. In the absence of documentary corroboration (see chapter 16), corroborating witnesses of fact (see chapter 15) and/or background evidence which specifically addresses your client's situation (see chapter 18), expert evidence may be critical to the success or failure of the appeal.
19.4 Normally, courts admit expert evidence where the issue upon which it is given is outside the knowledge or experience of the fact finding tribunal and where the expert, through experience, training or qualifications, has acquired that knowledge and expertise. Often - one might say almost by definition - the issues which arise in an asylum or human rights appeal will be outside the ordinary experience of the fact-finding tribunal.
19.5 So much has been recognised by the Court of Appeal. Criticising the proposition that an adverse credibility finding rendered an expert report irrelevant, the Court commented in R (Es-Eldin) v Immigration Appeal Tribunal (C/2000/2681) (per Brooke LJ) that:
It must be extremely difficult for special adjudicators to form their view of credibility in relation to somebody who comes from a culture different from theirs and from a political background different from theirs. In those circumstances a special adjudicator always needs all the help that can be given by those who know more about such matters than he or she necessarily does.
19.6 In S and Others v SSHD [2002] EWCA Civ 539, the Court of Appeal said that:
In this field opinion evidence will often or usually be very important, since assessment of the risk of persecutory treatment in the milieu of a perhaps unstable political situation may be a complex and difficult task in which the fact-finding tribunal is bound to place heavy reliance on the views of experts and specialists.
19.7 In Gurpreet Singh v SSHD [2001] EWCA Civ 516, the expert in that case was described as 'plainly a respected and well informed academic expert on Indian affairs... and the sources of her relevant information are in the context substantial. This court should regard the uncontradicted material deriving from her in that light as sufficient in an asylum case to establish the facts which she states.' On other occasions, that Court has expressed concern about expert evidence, particularly uncontradicted expert evidence, being dismissed on inadequate grounds. (See e.g. Karanakaran v SSHD [2000] EWCA Civ 11: '[It] was completely wrong for the tribunal in the present case to dismiss considerations put forward by experts of the quality who wrote opinions on this case as "pure speculation").'
19.8 On the other hand, the Tribunal has regularly complained about being faced with expert evidence which does not meet the standard normally expected by a court and the Practice Direction or from 'experts' who - at least on the face of the report submitted - do not appear to merit the title.
19.9 These views represent two sides of the same coin. Expert evidence is sometimes treated with irrational suspicion, if not hostility by the Home Office, and even in the Tribunal. There are stories of points being taken against experts which would be seen as absurd in other jurisdictions - for example that expert evidence was unreliable because the expert was 'on a retainer' (in reality charged a fee) to the solicitors. (The Home Office country material seldom receives the same treatment, despite their authors being paid employees of the respondent.)
19.10 But some representatives must also shoulder blame for submitting inadequate evidence in inappropriate form. Sometimes, the wrong expert has been chosen, but more often there is nothing wrong with the expert (who nevertheless attracts the blame from the Tribunal): what is wrong is the complete absence of appropriate instructions and guidance from the representative. The unique gravity of the issues at stake in this jurisdiction render it more, not less important that wherever possible, expert evidence meets the normal standards expected by the courts and by the Senior President's Practice Direction.
19.11 A substantial section of this text is therefore devoted to expert evidence. The next chapter deals with the issues where country expert evidence can help; the chapter after that with identifying the right expert.
19.12 Chapter 22 sets out the guidance an expert needs to understand his role in the litigation and avoid eminently avoidable criticism from the court. Experts in other jurisdictions commonly attend courses to familiarise themselves with these points: these pointers will at least start to fill the gap. Chapter 23 deals with instructing the expert. If an expert's answers are deficient, it will often mean he was asked the wrong questions, or given the wrong information. It also discusses the preparation of his report for disclosure, an exercise which can lead to misunderstanding on both sides. Chapter 24 deals with the dangers of so-called 'recycling' of reports. Chapter 25 is about calling the expert to give oral evidence. The Tribunal has emphasised the benefits of an expert giving oral evidence especially in Country Guidance cases, and it may make the difference between acceptance and rejection of his evidence. Chapter 26 deals with specific problems relating to medical evidence.