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Closing submissions and post-hearing steps

Chapter number: 
39
Section: 
The Hearing
Last updated: 
30 November 2014
Best Practice Guide to Asylum and Human Rights Appeals
by Mark Henderson & Alison Pickup

39.1 If there is no oral evidence, you will be asked to make opening submissions, followed by the HOPO's submissions, followed by your reply. (Note that as appellant, you are entitled to the last word.)

39.2 If oral evidence was heard, the HOPO will normally be invited to make his submissions first, and will not reply to your submissions. The disadvantage of this procedure is that it helps the HOPO to avoid facing up to the attack on his case. He should have received your skeleton argument, but is unlikely to engage much with the arguments contained in it. (Some judges have commented that a more sensible approach would be to start with your submissions: this would mean that the HOPO would see exactly how you put your case in the light of the oral evidence. It would also expose any failure to answer your case in his response.)

39.2A Occasionally, the judge may indicate that he does not need to hear from the HOPO. In XS (Kosovo- Adjudicator's conduct - psychiatric report) Serbia and Montenegro [2005] UKIAT 00093, the Tribunal said that

36. We do not consider that there was any unfairness in asking for the Appellant's submissions without asking for the Home Office Presenting Officers. It is quite possible for a fair provisional conclusion to have been reached, by the stage of speeches, as to the credibility of a witness. It is fair for the party against whom that conclusion has been provisionally reached to be asked to deal with the issues. Of course, and this case illustrates the point, that assumes that the Adjudicator is dealing with the Home Office Presenting Officer's case rather than his own. The Appellant's advocate must be in a position to know what the Home Office Presenting Officer's position is and importantly also an Adjudicator would benefit from knowing what points were still actively being pursued by the Home Office Presenting Officer. Although we do not see it as a separate head of apparent unfairness, it was unwise for the Adjudicator not to hear even briefly or in outline the main contentions of the Home Office Presenting Officer. That might have enabled the Adjudicator to avoid developing his own theory too far.

The HOPO's submissions

39.3 The HOPO will nearly always start by 'relying' on the refusal letter, even where much of it has been overtaken by events. He will usually make submissions on the oral evidence. He will often ignore the country evidence apart from the Home Office's own country reports.

39.4 His closing submissions ought not to raise new issues of which notice could have been given in advance. While the HOPO should not raise new points at the hearing at all, it is especially inappropriate to do so in closing submissions after the evidence has been completed. The obvious exception is where they arise out of oral evidence. However, any challenge to the evidence should have been made in cross-examination.

39.5 Take a full note of the HOPO's submissions. The judge may not record the submissions in his determination fully (or sometimes at all). It may be important on appeal (whether by you or the Home Office) to be able to show what submissions were and were not advanced. If the Home Office appeals, it will be particularly useful if you can demonstrate that the points that the judge is alleged to have failed to consider were actually not raised by the HOPO at the hearing. Obviously, this will be particularly important if the HOPO makes any express concession: in HA (Conduct of hearing: evidence required) Somalia [2009] UKAIT 00018, the Tribunal emphasised the importance of providing evidence to support an allegation about what was said at the hearing, where that is contrary to the judge's determination, and suggested that any application for permission to appeal which relies on such an allegation should be supported by the representative's contemporaneous note. The need for evidence in an appropriate case was reiterated in BW (witness statements by advocates) Afghanistan [2014] UKUT 00568 (IAC).

39.6 It is only occasionally appropriate to interrupt the HOPO's submissions: essentially to avoid wasting time while the HOPO develops an argument to which there is a fundamental objection. HOPOs (and indeed judges) are not used to their submissions being interrupted and may express surprise and even indignation, and it is not unusual to be told that you should keep your objections for your own submissions. Nonetheless, there are circumstances where it is more appropriate – and indeed helpful – to raise your objection in the course of the submissions, not least because it may enable the HOPO to indicate if he has a proper basis for maintaining the submission in the face of your objection. The circumstances where it may be helpful to interrupt are if the HOPO:

• embarks on a submission based on a mistake which is apparent from the documents, for example the date of an interview or the date the appellant entered the country;

• misquotes either the interview notes or the evidence given at the hearing;

• misrepresents your case, for example by claiming that you advance an argument that you do not, or accept something that you do not;

• raises an entirely new issue, or makes a point which is inconsistent with a concession or agreement made earlier;

• disputes the credibility of a witness when he raised no challenge by cross-examination.

Your own submissions

39.7 It is usually best to prepare notes rather than a full speech. That way your delivery will be much more natural and you will be able to make eye contact with the judge. More importantly, you will be better able to adapt your submissions to the issues that have arisen at the hearing if you are working from notes rather than a prepared speech.

39.8 Respond to each of the HOPO's arguments. It may help to note the HOPO's submissions down one page, and pointers to your counter arguments on the facing page. You will not usually be offered any time to consider his submissions before making your own, although you should not be afraid to ask for a short pause if you need to check page references or consider how to respond to points which have arisen from the evidence.

39.9 You should have checked at the start of the hearing whether the judge had read your skeleton and if not, you should have invited him to do so. To some extent, the nature of your submissions will depend upon the nature of your skeleton argument. If you have made detailed submissions in your skeleton on the country of origin evidence, and quoted the relevant passages, you will be able to move more quickly through these points in submissions.

39.10 Many judges (particularly if they did not have long to consider your skeleton) prefer you to go through the skeleton in closing so that they have an opportunity to raise any point which occurs to them. Others will ask you not to repeat these points in closing. They may take time to consider the skeleton argument immediately before your closing submissions so that it is fresh in their mind in the light of the evidence that they have just heard.

39.11 A judge should never refuse to listen to oral submissions unless they are plainly irrelevant. In particular, he should not limit oral submissions on the basis that you have submitted a skeleton argument. On the contrary, the Tribunal stated in SSHD v Klajic [2002] UKIAT 03452 that:

Practitioners should not rely on [skeleton arguments] as a substitute for dealing with any significant feature of their case in oral argument.

39.12 The best structure for your submissions may change from case to case, so long as they have a structure. One example might be:

• summary of the appellant's evidence;

• any corroborating evidence;

• summary of factors establishing present risk;

• country and expert evidence;

• how the case engages the UK's obligations and other legal arguments;

• rebuttal of refusal letter and HOPO's oral submissions;

• any human rights issues not embraced by the above submissions (e.g. family life in the UK).

39.13 Some advocates prefer to start by responding point by point to the HOPO's oral submissions as these will be fresh in the judge's mind. The additional advantage of this is that you can finish on a positive note stressing your own case. You must deal at some stage with each point in the HOPO's submissions, showing how they are either wrong or irrelevant.

39.14 Where the HOPO has relied upon the refusal letter without addressing the flaws identified in your skeleton, you should point that out. Highlight other points in the skeleton that the HOPO has been unable to answer in his submissions. Invite the Tribunal to draw an appropriate inference. Remind the Tribunal of evidence that the HOPO did not challenge. If the HOPO's submissions on credibility are unsustainable in light of his failure to challenge a corroborating witness, point this out; similarly where his submissions on risk are inconsistent with a witness's unchallenged evidence of continuing interest in the appellant. If the HOPO has questioned the credibility of a witness called to give evidence when he raised no challenge in cross-examination, you should object in the strongest terms (if you did not interrupt his submissions to do so).

39.15 You do not normally need to refer to basic authorities in closing submissions, any more than in your skeleton. However, you should ensure that your submissions on the facts reflect the basic caselaw (e.g. following Karanakaran vSSHD [2000] EWCA Civ 11 [2000] Imm AR 271, the judge cannot reject the appellant's evidence unless he can exclude any real doubt that it is true).

39.16 Remember that judges hear cases day after day, and see the same allegations put forward day after day by the Home Office, often without serious challenge. You need to engage the judge's attention and explain forcefully why a case built on allegations without evidence (or even explanation) should be rejected by any court. Attack the Home Office presumptions about the reasonable refugee individually, discrediting where appropriate by demonstrating the 'Damned if you do, damned if you don't' philosophy which lies behind them. Point out the alternative standard allegation that the Home Office would have deployed had your client acted differently.

39.17 Make your submissions at a speed which allows the judge to make a proper note. Issues may arise because the judge does not accurately record your submissions in the determination. If you have not given him a chance to make a proper note, you have yourself to blame. If the judge does not appear to have made a note of a submission which is central to your case, there is nothing wrong with asking the judge politely whether he has a note or whether he would like you to pause while he notes the submission. In KD (Inattentive Judges) Afghanistan [2010] UKUT 261 (IAC), the Tribunal emphasised that the parties are entitled to expect the judge to pay attention throughout the hearing, and that a failure to do so may give grounds for setting aside the determination, but that it is preferable for any concerns to be raised at the hearing.

39.18 Always conclude by asking the judge whether there is any matter of concern upon which you have not already addressed him.

Further submissions and evidence following the hearing

39.19 As an alternative to going part heard at the end of the court day, it may on occasion be suggested that submissions be completed in writing. This may also be proposed where an unforeseen issue has arisen upon which submissions and/or documentary evidence are required. (You can also suggest this course as an alternative to adjournment where a discrete piece of documentary evidence is not yet available – see para 8.42).

39.20 However, the Tribunal's administrative systems have often failed to transfer further submissions or evidence to the judge in time, and it has indicated that judges should accept post-hearing submissions or documents only in exceptional circumstances (Adjudicator Guidance Note No 4, which is one of the 'Guidance Notes for the former AIT that are now relevant to FTTIAC').

That note sets out the procedure to ensure that post-hearing material reaches the judge, namely that there should be a formal written direction which should include a requirement that submissions are marked urgent and for prompt transfer to the named judge.

39.20A In EG (post-hearing internet research) Nigeria [2008] UKAIT 00015, the Tribunal said that it is general inappropriate for a judge to conduct any post-hearing research of his own. If he relied on any material identified in this way without affording the parties the opportunity to make submissions on it by reconvening the hearing, that would be unfair.

After the hearing

39.21 Few people can take a note of what they say as they speak. But you will need to know what your submissions were if you are called upon – maybe months down the line – to draft grounds or make submissions on appeal or respond to a Home Office appeal.

39.22 You need not note points contained in your skeleton. If you are dealing with arguments which you have prepared earlier, then you need only tick off each submission in your notes as you make it. Otherwise, unless you are accompanied by someone who has made a note of your submissions, you should make your own note after the hearing. It need not be verbatim. But the summary should enable you to identify whether the judge has misunderstood or failed to address any of your submissions. It is, of course, crucial that you have a legible and comprehensible note of the evidence that was given at the hearing. You should also note any other point which may be important later (e.g. if an objection was over-ruled, or any indication by the judge or the HOPO on which you relied). The Upper Tribunal has emphasised that allegations about the conduct of the hearing in the First-tier Tribunal must be supported by evidence, and that it will expect that evidence to include the contemporaneous notes of the advocate, to which it will attach more weight than evidence from others present at the hearing who did not make notes (Azia (proof of misconduct by judge) [2012] UKUT 00096 (IAC); KD (Inattentive Judges) Afghanistan [2010] UKUT 261 (IAC) and BW (witness statements by advocates) Afghanistan [2014] UKUT 00568 (IAC)).

39.23 Once the judge has risen, ask your client and any other witnesses whether they have any comments about how the hearing went, and about the evidence they gave. It may transpire that there were misunderstandings or concerns about the interpreting which you had not picked up during the hearing. Ask about any evidence that appears to contradict the information the witness gave you in interview or conference.

If it transpires that there was some very significant misunderstanding, it may be worth seeking to re-open the hearing rather than simply storing the information up for the Upper Tribunal .

39.24 If important evidence comes to light, or if there is a substantial change of circumstances in the country of origin between the hearing and the promulgation of the determination, you should submit it. It will be open to the Tribunal to reopen proceedings if satisfied that it is in the interests of justice to do so (see e.g. Keskin v SSHD (15381)). It is also safest to submit any important new caselaw which emerges between the hearing and the determination (SSHD v Pinter [2002] UKIAT 00164).

39.25 In E & R v SSHD [2004] QB 1044 [2004] EWCA Civ 49, the Court of Appeal confirmed that 'the tribunal remained seized of the appeal, and therefore able to take account of new evidence, up until the time when the decision was formally notified to the parties' (para 92). That was the case even after the author of the determination had signed it.

39.26 The Court however rejected the Home Office's submission that the appellant's representatives should have kept the case under review following the hearing and submitted fresh evidence as soon as it became available. The Court said

...it ignores the practical realities. Assuming some legal assistance is available to the asylum seeker, it is likely to be concentrated at the critical points in the process: that is, for present purposes, the hearings before the adjudicator and IAT, and the consideration of possible appeal following receipt of their decisions. It seems unrealistic to expect continuous monitoring of potential new evidence in the intervening periods. Even if it were possible, it would be very difficult for the IAT (as their stated reasons made clear) to handle such new evidence administratively. The obvious point to review the matter, where necessary, is as part of any application for leave to appeal. (para 94)