by Mark Henderson & Alison Pickup
40.1 The number of appeal hearings that the Home Office fails to attend has increased markedly in recent years. The Tribunal has repeatedly expressed concern about the practice. In Surendran v SSHD (19197), it set out guidelines for judges (at that time known as adjudicators) where the Home Office was unrepresented. These were approved and annexed to the starred decision of MNM v SSHD (00/TH/02423)  INLR 576. They are as follows:
1 ... The Home Office . . . requests that the... adjudicator deals with the appeal on the basis of the contents of the letter of refusal and any other written submissions which the Home Office makes when indicating that it would not be represented.
2 [We do not] consider that the appeal should be allowed simpliciter. The function of the adjudicator is to review the reasons given by the Home Office for refusing asylum within the context of the evidence before him and the submissions made on behalf of the appellant, and then come to his own conclusion as to whether or not the appeal should be allowed or dismissed. In so doing he must, of course, observe the correct burden and standard of proof.
3 Where an adjudicator is aware that the Home Office is not to be represented, he should take particular care to read all the papers in the bundle before him prior to the hearing and, if necessary, in particular in those cases where he has only been informed on the morning of the hearing that the Home Office will not appear, he should consider the advisability of adjourning for the purposes of reading the papers and therefore putting the case further back in his list for the same day.
4 Where matters of credibility are raised in the letter of refusal, the Special Adjudicator should request the representative to address these matters, particularly in his examination of the appellant or, if the appellant is not giving evidence, in his submissions. Whether or not these matters are addressed by the representative, and whether or not the Special Adjudicator has himself expressed any particular concern, he is entitled to form his own view as to credibility on the basis of the material before him.
5 Where no matters of credibility are raised in the letter of refusal but, from a reading of the papers, the Special Adjudicator himself considers that there are matters of credibility arising therefrom, he should similarly point these particular matters out to the representative and ask that they be dealt with, either in examination of the appellant or in submissions.
6 It is our view that it is not the function of a Special Adjudicator to adopt an inquisitorial role in cases of this nature. The system pertaining at present is essentially an adversarial system and the Special Adjudicator is an impartial judge and assessor of the evidence before him. Where the Home Office does not appear the Home Office's argument and basis of refusal, as contained in the letter of refusal, is the Home Office's case purely and simply, subject to any other representations which the Home Office may make to the Special Adjudicator. It is not the function of the Special Adjudicator to expand upon that document, nor is it his function to raise matters which are not raised in it, unless these are matters which are apparent to him from a reading of the papers, in which case these matters should be drawn to the attention of the appellant's representative who should then be invited to make submissions or call evidence in relation thereto. We would add that this is not necessarily the same function which has to be performed by a Special Adjudicator where he has refused to adjourn a case in the absence of a representative for the appellant, and the appellant is virtually conducting his own appeal. In such event, it is the duty of the Special Adjudicator to give every assistance, which he can give, to the appellant.
7 Where, having received the evidence or submissions in relation to matters which he has drawn to the attention of the representatives, the Special Adjudicator considers clarification is necessary, then he should be at liberty to ask questions for the purposes of seeking clarification. We would emphasise that it is not his function to raise matters which a Presenting Officer might have raised in cross-examination had he been present.
8 There might well be matters which are not raised in the letter of refusal which the Special Adjudicator considers to be relevant and of importance. We have in mind, for example, the question of whether or not, in the event that the Special Adjudicator concludes that a Convention ground exists, internal flight is relevant, or perhaps, where, from the letter of refusal and the other documents in the file, it appears to the Special Adjudicator that the question of whether or not the appellant is entitled to Convention protection by reason of the existence of civil war (matters raised by the House of Lords in the case of Adan). Where these are matters which clearly the Special Adjudicator considers he may well wish to deal with in his determination, then he should raise these with the representative and invite submissions to be made in relation thereto.
9 There are documents which are now available on the Internet and which can be considered to be in the public domain, which may not be included in the bundle before the Special Adjudicator. We have in mind the US State Department Report, Amnesty Reports and Home Office Country Reports. If the Special Adjudicator considers that he might well wish to refer to these documents in his determination, then he should so indicate to the representative and invite submissions in relation thereto.
10 We do not consider that a Special Adjudicator should grant an adjournment except in the most exceptional circumstances and where, in the view of the Special Adjudicator, matters of concern in the evidence before him cannot be properly addressed by examination of the appellant by his representative or submissions made by that representative. If, during the course of a hearing, it becomes apparent to a Special Adjudicator that such circumstances have arisen, then he should adjourn the case part heard, require the Home Office to make available a Presenting Officer at the adjourned hearing, and prepare a record of proceedings of the case, which should be submitted to both parties up to the point of the adjournment, and such record to be submitted prior to the adjourned hearing.
40.1A The guidelines were further elaborated in WN (Surendran; credibility; new evidence) Democratic Republic of Congo  UKIAT 00213:
29. Third, it is necessary to say something here about the significance of the Surendran guidelines. Too often there have been challenges to Adjudicators' conduct of a hearing, both during the hearing and subsequently on appeal to us and indeed as here, on a further application for statutory review, based upon asserted breaches of these guidelines. The guidelines are guidelines and guidance; they are not rules of law. They are not a strait-jacket. They do not represent black and white answers to all the situations, many and varied as they are, which arise before an Adjudicator where the Home Office Presenting Officer is not present. The object behind them is to provide guidance as to how to ensure a fair hearing and how to avoid circumstances arising in which a fair-minded and informed observer would conclude that there was a real possibility or a real danger that the Adjudicator was biased; Porter v Magill  UKHL 67,  2WLR 37.
30. The real test to be applied, however, is whether the hearing was fair or unfair and whether a fair-minded and informed observer would conclude that there was a real possibility that the Adjudicator was biased. In each case where there is non-compliance with the guidelines, it remains for the person asserting the unfairness or apparent unfairness to show that the actual or apparent unfairness was present. It is not sufficient merely to assert that the guidelines were not complied with. It is not by itself an error of law not to comply with the guidelines. The point rather is that compliance with the guidelines will make it very difficult, if not impossible, for an Appellant to show that the Adjudicator acted, or could properly be thought to have acted, unfairly. If they are not complied with, it plainly assists an argument as to actual or apparent unfairness. But it is not conclusive as to it at all. The statement in MNM paragraph 19 that they must be observed was never intended to elevate the guidelines into a distinct set of rules which had to be complied with, regardless of the underlying effect of any non-compliance. The Surendran guidelines should never be the means, and were never intended to be the means, whereby the proper and fair conduct of the hearing by the Adjudicator and the proper raising of issues by the Adjudicator should be prevented.
31. The guidelines now need to be read in the light of the two decisions in Koca and Maheshwaran where, as here, credibility is generally at issue. The obligation is on the Appellant to deal with obvious points which relate to his credibility without necessarily being asked to comment on them by the Adjudicator. The Appellant cannot expect to be able to make tactical decisions as to whether he should deal with an issue or ignore it, later to complain successfully if an Adjudicator has not raised it with him. An Appellant cannot simply say that a question was not put and therefore it was unfair for an inference to be drawn adversely to him on that point, where his credibility has been put at issue and the issue dealt with by the Adjudicator in the determination goes to credibility. Whether it is unfair depends on the circumstances in the case.
32. Guideline four is clearly sound; there remains, in the light of those two decisions, an obligation on the Appellant to address issues of credibility raised in the letter of refusal. But it is clearly not inappropriate for the issue of concern to be raised in questions by the Adjudicator. It may be more useful for the Adjudicator to put those questions than to ask the representative to do so. This can all be seen as "clarification", for that emphasises that the task is not one of cross-examination and is subject to the caveats as to timing, manner, length and content which we deal with later.
33. Where guideline five applies because no matters of credibility have been raised in the refusal letter, and there is no new material before the Adjudicator, the Adjudicator should raise any issues which concern him, as guideline five says. But as with guideline four, it is proper for the issue to be raised by the Adjudicator himself directly in questions of a witness, subject to the same caveats as to timing, content, manner and length. The Adjudicator must here be especially careful not to invent his own theory of the case and must deal with what are significant problems, not minor points of detail. In this situation, it is much less likely that an Appellant would be aware that his credibility was under consideration if it were not raised with him, and it is unlikely to be fair for the issue to be raised in the determination for the first time. This is rather different from Koca and Maheshwaran.
34. Guideline five also needs to cover the position where no issue of credibility has been raised in the Refusal Letter and yet it may be obvious that further material provided to the Adjudicator raises issues of credibility. Issues of credibility which arise from the new material should be raised or put by the Adjudicator to the Appellant so that he may answer it, but it does not mean that the hearing has been unfair, where that is not done. That depends on the degree to which the issue of credibility was one which an advocate ought properly to have realised needed to be dealt with on the material which he was presenting to the Adjudicator, in the light of the Secretary of State's decision. Obvious points are: why the material had not been mentioned before; why there were contradictions between that and what had been said before; and how obvious implausibilities or improbabilities in it are to be answered. For an unrepresented Appellant, the Adjudicator is likely to have to draw his attention explicitly to the point, in order fairly to be able to rely on it.
35. Guideline six does not confine the Adjudicator to questions arising out of the Secretary of State's material. But as it is the Secretary of State's material which an Appellant usually seeks to answer, often with further evidence, it is right for Adjudicators to put questions on it and on the further evidence as the total case put forward by the Appellant emerges.
36. As to guideline seven, clarification goes beyond checking whether something has been understood or for confirmation of a fact. It is legitimate for an Adjudicator to raise the questions relevant to the Secretary of State's decision letter or later material to which the Adjudicator considers he needs answers if he is to deal fairly, adequately and intelligibly with the material upon which he is being asked to adjudicate. He is not obliged to be the silent recipient of whatever an Appellant puts forward. If obvious points are not dealt with, the Adjudicator can deal with them in his determination and it is generally better that he should do so having given the Appellant the chance to answer them.
37. The last sentence of guideline seven can be misleading. It is designed to prevent cross examination or the appearance of cross examination, rather than to prevent a question being asked if it was a question which the Home Office Presenting Officer could have put if he had been present. The risk of cross-examining or appearing to cross-examine can be avoided by an Adjudicator in the manner, style or length of questions, which he asks. Generally, questions other than those designed to clarify what was said or intended to be said are better left until after the conclusion of evidence where no Home Office Presenting Officer is present and after re-examination where a Home Office Presenting Officer is present but see K (Côte D'Ivoire) UKIAT 00061.
38. Questions should not be asked in a hostile tone. They should not be leading questions which suggest the answer which is desired, nor should they disguise what is the point of concern so as to appear like to a trap or a closing of the net. They should be open ended questions, neutrally phrased. They can be persisted in, in order to obtain an answer; but they should not be persisted in for longer than is necessary for the Adjudicator to be clear that the question was understood, or to establish why it was not being answered, or to pursue so far as necessary the detail underlying vague answers. This will be a matter for the judgment of Adjudicators and it should not usually take more than a few questions for an Adjudicator to establish the position to his own satisfaction. An advocate should always be given the chance to ask questions arising out of what the Adjudicator has asked, which will enable him to follow up, if he wishes, the answers given thus far. The Adjudicator can properly put, without it becoming a cross-examination, questions which trouble him or inferences from answers given which he might wish to draw adversely to a party. These questions should not be disproportionate in length to the evidence given as to the complexity of the case, and, we repeat, an Adjudicator should be careful to avoid developing his own theory of the case.
39. There is a tension, reflected in the guidelines, between fairness in enabling a party to know the points on which an Adjudicator may be minded to reach conclusions adverse to him where they have not directly otherwise been raised, and fairness in the Adjudicator not appearing to be partisan, asking questions that no-one else has thought it necessary to ask. This has proved troublesome on a number of occasions.
40. The tension should be resolved, so far as practicable, by recognising the following:
(1) It is not necessary for obvious points on credibility to be put, where credibility is generally at issue in the light of the refusal letter or obviously at issue as a result of later evidence.
(2) Where the point is important to the decision but not obvious or where the issue of credibility has not been raised or does not obviously arise on new material, or where an Appellant is unrepresented, it is generally better for the Adjudicator to raise the point if it is not otherwise raised. He can do so by direct questioning of a witness in an appropriate manner.
(3) We have set out the way in which such questions should be asked.
(4) There is no hard and fast rule embodied in (1) and (2). It is a question in each case for a judgment as to what is fair and properly perceived as fair.
The Surendran guidelines and MNM should be read with what we have set out above.
40.1B In SW (Adjudicator's questions) Somalia  UKIAT 00037, the Tribunal said that Surendran v SSHD (19197) and MNM v SSHD (00/TH/02423) should always be cited with WN (DRC). In XS (Kosovo- Adjudicator's conduct - psychiatric report) Serbia and Montenegro  UKIAT 00093, the Tribunal reiterated that
24. ... the Surendran guidelines as discussed and explained in that case are guidelines. They do not cover every situation in which the judgment of an Adjudicator is called for as to how to approach a particular case; fairness and commonsense must guide them. If the guidelines are breached, it does not necessarily follow that the Adjudicator has made an error of law, or acted unfairly or even appeared to do so. They are designed to be guidelines not a source of hazard for the judiciary.
25. The question that underlies all cases in which, as here, an Adjudicator's conduct of the hearing is at issue, is whether the hearing was fair, and whether there was a real possibility that an informed observer would think that the judge was biased.
26. In reaching a view on those issues, compliance with the guidelines will make the task of someone alleging unfairness very much more difficult and non-compliance will assist, by contrast, without dictating the result.
40.2 If you are proceeding on the basis that credibility has not been put in issue by the Home Office in its refusal letter, say so to the judge. If that is the case, and the judge does not indicate that he is considering an adverse credibility finding, there will often be no need to call the appellant.
40.3 If credibility has been put in issue by the Home Office, it will usually be appropriate to call the appellant. Where the Home Office is represented, the majority of a witness' oral evidence is spent dealing with cross-examination. You may decide to ask more questions than usual in evidence in chief in order to give the appellant a reasonable opportunity to put her case to the judge. You can often do this by inviting the appellant to comment on those allegations in the refusal letter to which she can respond in her own words, and to express her current fears.
40.4 However, if the Home Office's grounds for disputing credibility are weak and are fully addressed by your skeleton and/or the appellant's witness statement, you may simply ask the appellant to confirm her statement and then ask the judge if there is any matter upon which he would like to hear oral evidence. This gives the judge every opportunity to raise his concerns without risking stepping into the arena by conducting the examination himself.
40.5 The caselaw discussed above indicates that it is not unfair for the judge to put questions directly to the appellant rather than invite the representative to put them, provided of course that the judge puts them in a neutral rather than hostile manner.
40.6 Where the judge starts questioning the appellant in a manner resembling a HOPO's cross-examination, it will be appropriate to remind the judge that this is inconsistent with the Surendran guidelines (para 7).
40.7 While the judge is entitled (and obliged) to raise adverse matters which are apparent from the papers, it is not his role to develop his own theory of the case. If his point seems closer to the latter than the former, you should again remind him that the Surendran guidelines confirm that the process is adversarial and the Home Office's case (unless it has submitted written representations) is the refusal letter 'purely and simply' (para 6). However, it has been emphasised that in cases where the Home Office is unrepresented, it is more likely to be unfair for the judge to decide the case on the basis of a matter which was not raised with the appellant during the hearing. In HA & TD v SSHD  CSIH 28,  SC 457, the Court of Session said that while a judge is not generally bound to raise points with an appellant on which he later relies,
...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.
40.8 If you are concerned that the judge does not appear to be following the Surendran guidelines, it is important to raise your concerns politely at the hearing. You should make a full note during, or immediately after the hearing of any indications or interventions from the judge and of your own submissions (see para 39.22 for the importance of ensuring you have a clear note of anything about which you may later wish to complain in support of an appeal).