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Narrowing the issues and seeking disclosure

Chapter number: 
9
Section: 
Procedure
Last updated: 
30 November 2014
Best Practice Guide to Asylum and Human Rights Appeals
by Mark Henderson & Alison Pickup

9.1 This jurisdiction is adversarial. The Tribunal has encouraged the parties to define and narrow the issues in dispute. The Procedure Rules are designed to facilitate that. Fairness in any event entitles you to know the opposing party's case. However, appellants (and the Tribunal) have faced endemic, indeed systemic obstacles in persuading the Home Office to disclose its case on the relevant issues with sufficient clarity sufficiently in advance.

The CMRH, amendment of the refusal letter, and Home Office skeleton arguments

9.2 The Home Office commonly argues that it need not produce a skeleton argument setting out its case because the refusal letter fulfils that role. Para 8.2(e) of the Practice Directions requires that a skeleton argument should 'define and confine the areas at issue'. The Tribunal has directed that the refusal letter should state exactly what is and is not in dispute. But the Home Office seldom complies (para 1.3). One paragraph of the refusal letter may even rely upon facts which another paragraph appears to dispute.

9.3 While the refusal letter is problematic enough as a guide to the Home Office's position at the date of the decision, it is no guide at all to its position on subsequent developments. The Home Office often fails to serve any response to post-decision submissions and evidence.

9.3A The Tribunal Procedure Committee has responded to concerns about Home Office practice in this regard by imposing a new requirement on the Home Office in rule 24(2) of the 2014 Procedure Rules that:

The respondent must, if the respondent intends to change or add to the grounds or reasons relied upon in the [notice of the decision to which the notice of appeal relates or other document giving reasons for that decision], provide the Tribunal and the other parties with a statement of whether the respondent opposes the appellant's case and the grounds for such opposition.

Rule 24(4) requires this notice to be provided, in writing, within 28 days of the Respondent being served with the notice of appeal.

9.3B In the Committee's response to the consultation on the draft Rules in which it explained its decisions on the Rules as enacted, it explained that:

78. The TPC concluded that, in principle, both parties should know the case that they had to meet. It was therefore unsatisfactory that under the existing AIT rules, there had never been a requirement to produce a response or set out the grounds on which the appeal was resisted.

9.3C The Home Office had argued that in some cases, it would have nothing additional to add to the reasons that it had already given for refusing the application so the proposed response would add nothing. The Committee concluded that:

79. The Final Rules therefore require a response only if the Home Office wishes to change or add to the grounds relied upon in the decision notice. The TPC anticipates that this will give the benefits of requiring a response in all cases, by ensuring the case against the appellant is clearly set out in either the initial decision or a subsequent response. (Emphasis added)

9.3D This is supported by the Practice Directions, which state that at the CMRH, the Home Office must produce 'any amendment that has been made or is proposed to be made to the notice of decision to which the appeal relates or to any other document served on the appellant giving reasons for that decision' (emphasis added). As noted above (para 6.25), in cases where the CMRH is dispensed with and the Tribunal holds a paper PHR, the respondent is required to comply with this part of the Practice Direction by the date of the PHR.

Taken together with rule 24(2), it is clear that an appellant is entitled to notice of any reasons for refusal not contained in the refusal letter upon which the Home Office will rely at the hearing.

9.4 Attempts to engage in sensible discussion with a HOPO in order to narrow or even define issues much in advance of the hearing may well be futile. You will be lucky to find anyone at the Home Office prepared even to talk about the case more than a day or so before the hearing – no matter how much the appeal has developed since the refusal letter. The biggest innovation of NAM for the purposes of the appeal process was supposed to have been that the decision maker should present the appeal. However, as explained in chapter 1 the Home Office soon moved back to a system of separating the initial decision making role from that of the HOPO. The Modernised Guidance on Appeal Hearings which gives guidance to administrative staff in the HOPO Unit makes clear that HOPOs are not allocated to cases until the hearing list is received from the Tribunal, normally 5 working days before the hearing, and anticipates that files will only be passed to the allocated HOPO 2-6 days before the hearing. The existence of a named case owner, at least if direct contact can be made, can facilitate communication well in advance of the hearing, although once the file has been passed to the HOPO Unit the case owner is unlikely to be able to assist, and the problems with contacting HOPOs more than a day before the hearing remain unchanged. This division between case owners and HOPOs has further reduced the scope for negotiation with HOPOs at hearings, and any agreement by the HOPO to adjourn to reconsider will invariably necessitate the return of the file to the caseowner for that reconsideration.

9.4A The Tribunal Guidance Note on CMRHs states that

"23. For the respondent, the presenting officer should have the power to concede particular points where appropriate, such as age, nationality, or ethnicity. The presenting officer ought to be able to indicate that particular paragraphs in the reasons for refusal letter will not be relied upon or are no longer material. The presenting officer ought to indicate any material issues arising in relation to section 8 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 in respect of behaviour by the appellant to be taken into account as damaging to credibility. "

Where a paper PHR is directed the standard directions clearly expect that the Home Office will indicate if any part of the refusal letter is no longer relied on, but you will not have the opportunity to press the HOPO on any points which you think should obviously be conceded, or to clarify whether section 8 is relied on. One solution would be to write to the HOPO Unit before the PHR, copying your letter to the Tribunal, asking the Home Office to concede particular points, or to confirm that section 8 is not relied on.

If a Response has not been served prior to a CMRH/PHR, then the HOPO can be asked to either confirm that no additional reason will be relied upon beyond the refusal letter, or else directed to serve the statement required by rule 24(2), if necessary, shortening time for compliance with that rule (rule 4(3)(a) states that the Tribunal may shorten the time for compliance with any rule, direction or practice direction).

9.5 One way of teasing out the details of the Home Office case is to seek a direction that the Home Office serve a proper skeleton argument, in particular if they intend to advance any contention not set out in the refusal letter, and the Response required by the Rules has supplied an inadequate explanation of the Home Office's additional case. The Response may in any event not include details of her case, including authorities that the Home Office relies upon, that would be expected in a skeleton argument. The Tribunal's general case management powers under rule 4 include a power to require a party "to provide... submissions to the Tribunal or a party" (rule 4(3)(d)) and it is clear that it may direct the provision of a skeleton argument. Indeed, all appellants are now required to lodge 'a skeleton argument, identifying all relevant issues including human rights claims and citing all the authorities relied upon' (Practice Directions para 7.5(a)(iii)). The 2014 Rules also include a new power by which the Tribunal can "give directions as to (a) issues on which it requires evidence or submissions; (b) the nature of the evidence or submissions it requires; ... (e) the manner in which any evidence or submissions are to be provided, which may include a direction for them to be given—(i) orally at a hearing; or (ii) by witness statement or written submissions; and (f) the time at which any evidence or submissions are to be provided." (Rule 14(1)).

9.6 The Home Office's IDI's previously stated that:

"Directions may require a skeleton argument. Unless the request relates to specific points, we should simply refer to reasons for refusal letter and any supplementary letter(s). It is not necessary for caseworkers to provide or refer to precedent cases. What is being sought is the paperwork on which our decision is based: the evidence backing up our assertions." (ch.12, s.8.2, which was withdrawn for 'review' in about 2009 and has not been reissued to date)

9.7 It is unclear what basis the Home Office could have for claiming that it is unnecessary to refer to the caselaw upon which it relies. The Practice Directions expressly state that a skeleton should incorporate the caselaw relied upon and it is required of all appellants. The APIs have in the past offered a sample skeleton argument for a fictional case to guide HOPOs as to good practice in drafting skeleton arguments. The sample skeleton was instructive. Its structure was as follows:

• The Home Office concedes in the light of 'further evidence' that the appellant was a member of his organisation and was active as claimed.

• It concedes that 'higher level' activists of that organisation 'may well' be at risk of persecution.

• It contends, however, that less prominent members are not at risk and supports this contention by reference to reports from Amnesty International.

• It therefore opposes the appeal on the sole ground that the appellant is not sufficiently prominent to be at risk.

9.8 This example demonstrates how a skeleton argument from the Home Office may assist. It identifies what is and is not in dispute and the evidence upon which the Home Office will rely to resolve the dispute. It saves everyone time and effort. Contrast it with the structure of the average refusal letter.

Seeking information about the Home Office's case

9.9 Rule 24(2) is unlikely to offer a panacea to the problems raised by the Home Office's previous habit of changing its case without notice. It may not comply with rule 24(2), and the Rules prescribe no specific sanction for its failure to serve a response. Even if it complies, given the speed with which asylum appeals are listed, you may be prejudiced by waiting 28 days after the Home Office is served with the notice of appeal to be told that it has new or additional reasons for opposing your appeal. Any response may be too vague and imprecise to be of any assistance. You may therefore wish to seek specific directions in order to narrow the issues and identify what is in dispute. The Tribunal's general case management powers in rule 4 include a power to require a party to amend a document (rule 4(3)(c)), and a power to "permit or require a party or another person to provide documents, information, evidence or submissions to the Tribunal or a party". It also has a new power in the 2014 Rules "On the application of a party or on its own initiative [to] (b) order any person to answer any questions" (rule 15(1)).

9.10 The Home Office has in the past adopted the bizarre position that it is justifiable for it to oppose an appeal while declining to disclose its case for opposing it. It has relied upon a decision of the Court of Appeal in Mwanza v SSHD [2001] INLR 616. The Court held that a direction to the Home Office to issue a 'fresh refusal letter' was ultra vires because it required the Home Office to take a substantive step (i.e. embark on a reconsideration). The Rules only permitted directions in respect of procedural issues.

9.11 That decision was deprecated on its facts by the Tribunal in N'Da v SSHD (01/TH/01769). But its limited application was also emphasised by the Tribunal in SSHD v Razi (01/TH/01836). In that case, the Home Office had refused the claim on non-compliance grounds and the Adjudicator directed that it:

... serve a note of any reasons for refusing the substantive asylum application. Failing compliance, consideration may be given to disposing of the appeal in accordance with Rule 33 [of the 2000 Procedure Rules].

9.12 The Home Office did not comply. The Adjudicator therefore treated its decision as withdrawn. The Home Office appealed. The Tribunal dismissed the appeal. It held that '[The adjudicator] was not requiring the Home Office to take a changed view of the case'. He was simply requiring it to 'give whatever reasons they might have for maintaining their decision' so that the appeal could be determined on the merits:

"That was the proper procedural purpose for which [the adjudicator] gave his direction. It clearly came to the same thing as an order for particulars, familiar to civil practitioners, which essentially requires a party to give details of his own case. "

9.13 In R (Emlik) v IAT [2002] EWHC 1279 (Admin), the Administrative Court approved Razi (01/TH/01836), holding that the Tribunal 'were clearly right in that case in distinguishing Mwanza' (per Silber J). See also R (Zaier) v IAT and SSHD [2003] EWCA Civ 937, in which Auld LJ pointed to Razi as illustrating how a direction expressed as a requirement that the Home Office particularise its case might achieve the same result in practice as an (impermissible) direction requiring the Home Office to take a fresh decision. In the same case, Clarke LJ emphasised the adjudicator's 'extensive' and 'ample powers' to make appropriate directions, including that the Home Office particularise its case, notwithstanding that he could not order a reconsideration or fresh decision by the Home Office. The disagreement with Razi expressed by another division of the Tribunal in SSHD v C (Yugoslavia) [2003] UKIAT 00007 was limited to the consequences of non-compliance with directions under the old 2000 Rules rather than the nature of the power to make directions. While the express terms of rule 24(2) now clearly require the Home Office to state any additional reasons it may have for opposing your client's appeal, the Home Office may still object to a requirement to provide further details of the reasons on which its decision is based.

9.14 The proposed direction should however be carefully phrased, both to improve the prospects of it being ordered and to decrease the prospects of the Home Office successfully challenging it. What may be problematic is a direction that the Home Office take a substantive step such as to reconsider the case and make a new decision or to reinterview the appellant – even where that step is plainly called for. What it clearly can do is direct the Home Office to disclose details of its case: its reasons for maintaining that the appeal should be dismissed. If the case plainly requires a change of view, then the Home Office will either have to consider the new evidence or changed circumstances and change its view to to take account of them, or expose its position as untenable.

9.15 Suppose the Home Office's original decision was based on the assertion that your client could live in rebel-held Narnia. Narnia has now fallen to the government. You may not ask the Tribunal to direct the Home Office to reconsider its decision to refuse asylum. That would be to imply (according to Mwanza [2001] INLR 616) that the Home Office must take a different view. But the Tribunal can direct the Home Office to disclose its reasons for opposing the appeal in light of the fall of Narnia. The Home Office is entitled to respond to the direction by stating that its case remains unchanged. But if so, the disclosure of that fact may enable the Tribunal to resolve the appeal expeditiously against the Home Office. If on the other hand, the Home Office has changed its reasons then, as the Tribunal recognised, and is not recognised in rule 24, you are entitled to notice of its new case. The same reasoning applies if you have put forward further evidence particular to your client which demands a response.

9.16 [....]

9.17 An example of how such a direction might be phrased is:

"The Secretary of State is required to file and serve further information stating whether, and if so on what grounds it continues to oppose the appeal, and in particular state whether (and if so on what grounds) it challenges the following evidence relied upon by the appellant..."

(For a further example, see the direction issued by the Tribunal in SSHD v Zaire (01/TH/02779).)

9.18 Do not assume that the Home Office will necessarily comply. In Razi (01/TH/01836) (which had been adjourned on several occasions without compliance by the Home Office), the Tribunal commented that taking the 'charitable view' that the Home Office's conduct 'was no more than institutional incompetence, it is hard to imagine any other department of state in this country where such incompetence would be tolerated'. It added, however, that:

"This begins to go beyond mere institutional incompetence, into the realm of an institutional culture of disregard for adjudicators, who are the primary judicial authority in this country for making sure that immigration powers are efficiently, as well as fairly exercised. That does not serve the public interest, which the Home Office are there (we think) to represent."

9.19 It concluded that the adjudicator was justified in treating the decision as withdrawn. That course is no longer available under the present Procedure Rules. However, there are alternative measures available to the Tribunal in the face of non-compliance by the Home Office.

9.20 As indicated above, the Rules provide no express sanction for a failure by the Home Office to comply with rule 24(2), or indeed any direction which you have obtained from the Tribunal as suggested above. Rule 6(2) states that where a party has failed to comply with a Rule, practice direction or direction it may "take such action as it considers just". This may include the exercise of its power in Rule 14(1)(a) to give directions as to the issues on which it requires evidence or submissions. In order for rule 24(2) to achieve its purpose, the Tribunal should be prepared to refuse permission to rely on new grounds where the Home Office has not notified its additional case in a statement pursuant to rule 24(2). You will often wish to seek a further direction that should the Home Office fail to comply with an order to provide further details of its case, it should be precluded from putting forward a new case at the hearing. This is likely to be particularly appropriate where the Home Office has already failed to comply with rule 24(2), and you are now seeking a further direction for it to disclose its case. Proactive steps to define the issue in advance will greatly facilitate the efficient and cost-effective disposal of appeals, avoiding appellants having to amass evidence at public expense or arrange experts to attend hearings only for it to transpire that the Home Office does not, or cannot take issue with the point. In Nori v SSHD [2002] UKIAT 01887, the Tribunal noted that:

"It may be that if the Secretary of State fails to carry out any investigation himself or to reach any conclusion himself, the adjudicator will have to make his decision on the basis of uncontroverted evidence from the appellant or without permitting the Secretary of State, if he has failed to comply with directions, to put in any material himself. "

9.21 The CMRH is designed to provide the opportunity to define the issues. As the Tribunal explained in Kalidas (agreed facts – best practice) [2012] UKUT 00327 (IAC) "CMRs and agreement of facts are efficient devices for focussing the issues before the First-tier Tribunal, which can save much time and effort". If the Home Office cannot offer a sensible response, it will often be appropriate to seek an appropriate direction at that hearing. The Tribunal Guidance Note on CMRHs expressly envisages directions against appellants if their case is 'vague and unspecific'. The Tribunal can then exercise the power discussed in the preceding paragraph to ensure that the parties comply with any agreement/ decision at the CMRH as to the issues to be considered at the full hearing. As was emphasised in Kalidas, it is important to ensure that any agreement is reduced to writing so as to avoid the possibility of any subsequent argument over the scope of the agreement and it is incumbent on the parties to draw that agreement to the attention of the judge hearing the substantive appeal. Note that the 2014 Rules require the parties to co-operate with the Tribunal both generally, and in seeking to further the overriding objective (rule 2(3)).

9.22 As with other litigation, the Home Office's first attempt to detail its case may be unclear or incomplete and you are entitled to ask for further details in these circumstances. This is distinct from asking for disclosure of its evidence (which is dealt with below). You are seeking to identify what claims the Home Office does and does not make. You will often want to know not only what is in dispute, but why. That will help you gauge how seriously you need to take the assertion, and how much effort and expense you need to devote to countering it.

9.23 You might, for example, want further details of the Home Office's case in order to enable your expert to engage with the Home Office's reasoning. If it alleges that your client wrongly identified the leader of a rebel organisation, it may assist in establishing its error if the Home Office is directed to identify who it claims the leader is. Sometimes, it will be helpful to explore the implications of the Home Office's case. By compelling the Home Office to follow through its argument to its logical conclusion, you may persuade it – or at least the Tribunal – of its absurdity, or may expose the unattractiveness of the underlying assumptions. You can also force the Home Office to engage with inconvenient aspects of the case.

9.24 You can of course present the evidence and make the submission without seeking further details. But by forcing the Home Office to commit itself to the full extent of its argument, the rebuttal of that case is more persuasive. Even if the request is refused, you have focussed minds upon the validity of the Home Office's case whereas the Home Office will often wish to focus minds anywhere but. You may even persuade the Home Office to abandon such allegations altogether (or occasionally to concede the case). The following appeared in a refusal letter quoted in No Reason at All:

'The Secretary of State... considered your account of crossing the Zaire River by canoe at night to be totally implausible. The Secretary of State is aware of the size, strength and considerable dangers posed by the river such as shifting sandbanks and crocodiles.'

9.25 Confronted with a request for further details of the alleged crocodile population, the Home Office was unable to comply. It withdrew the allegation, but then – illustrating the potential drawback in seeking such a direction – produced a wholly new set of allegations to support its refusal. Such a response is a real risk in some cases. It illustrates the major proviso to the above discussion: just because the Home Office has not presented its case properly does not necessarily make it your job to force it to do so.

9.26 The appellant will have an understandable sense of injustice if she successfully discredits the reasons for refusal only to find that the Home Office puts forward new allegations upon which it chose not to rely in the original decision. She may well think that the Home Office is concerned simply to conjure up any reason which might allow it to maintain its original refusal. You will not want to encourage this unattractive practice on the part of the Home Office. For this reason, you should consider the likely response to such directions. You have no obligation to help the Home Office evade the defects in its case. You have to make a decision on the facts of each case whether your client is best served by seeking a direction in advance or simply attacking these defects in your skeleton and submissions.

Disclosure of documents

9.27 The one standard direction which does apply to the Home Office is the requirement that it serve a bundle of the evidence upon which it will rely seven days in advance of the hearing. It often serves only the Country of Origin Information Service report (and may indeed simply rely on this being accessible on the internet) or other Home Office document (and seldom in time). The issues arising from such reports (including issues of disclosure) are discussed in chapter 17.

9.28 Under the CPR r.31.6, standard disclosure in civil litigation involves disclosure of documents

which adversely affect his own case; adversely affect another party's case; or support another party's case...

9.29 There is no express requirement in the Procedure Rules upon the Home Office to disclose relevant evidence in its possession other than those papers which it must file pursuant to rule 24(1) - see chapter 10. As a public authority, it would be unfair, and itself inconsistent with the appellant's human rights, were the Home Office to withhold relevant material which assisted the appellant's case. In Miah (interviewer's comments: disclosure: fairness) [2014] UKUT 00515 (IAC) (a case about marriages of convenience, which the Upper Tribunal said were decisions of "some moment" to the individuals concerned), McCloskey J observed that:

21. The requirement to make disclosure (formerly discovery) of all material documents in a party's possession, custody or power is a long established feature of most litigation contexts. It is an integral part of the administration of justice. It is a duty owed to both the other party and the court or tribunal concerned. It is rooted in fairness and the rule of law itself. In the particular context of judicial review proceedings, Sir John Donaldson MR stated in R – v – Lancashire County Court, ex parte Huddleston [1986] 2 All ER 941, at 944:

"Certainly it is for the applicant to satisfy the Court of his entitlement to judicial review and it is for the respondent to resist his application, if it considers it to be unjustified. But it is a process which falls to be conducted with all the cards face upwards on the table and the vast majority of the cards will start in the authority's hands".

[My emphasis.]

This has also been formulated as a duty of candour: see Tweed – v – Parades Commission (Northern Ireland) [2006] UKHL 33, at [54], per Lord Brown. Asylum, immigration and kindred appeals are a species of public law proceedings, in which the parties are the citizen (on the one hand) and the State (on the other). I consider that these duties apply with full force in the context of such appeals. To suggest otherwise would be inimical to the administration of justice. Rule 13 of the 2005 Rules is to be construed and applied accordingly.

Rule 13 of the 2005 Rules has been replaced by rule 24(1) of the 2014 rules for in-country appeals and McCloskey J, noting the forthcoming change, indicated that in his view the same principles would apply. Where you suspect that the Home Office intends to rely upon evidence at the hearing, and you wish to have that evidence more than a week in advance of the hearing in order to prepare a response, you can also seek a direction that it particularise any evidence upon which it intends to rely to support a particular allegation.

9.30 The holding by the President of the Chamber that "Asylum, immigration and kindred appeals are a species of public law proceedings" and the Home Office's duty of candour "appl[ies] with full force in the context of such appeals" confirms that the Home Office can be referred to caselaw and guidance on the public law duty of candour to explain to it the extent of its obligations. One would hope it would be rare that there was a conscious decision by the Home Office to withhold material adverse to its case. However, the Home Office is not known for reaching consistently reasonable conclusions on the probative value of evidence. It may convince itself that a document in its possession does not assist the appellant whereas a reasonable observer may draw a very different inference.

9.31 This issue was considered by the panel of IJs which heard the Afghan hijacking case. The panel declined to issue a specific direction to the effect that the Home Office should disclose any document favourable to the appellant in the absence of grounds to suspect that the Home Office held such documents. However, it considered that the Home Office was in any event under a continuing duty throughout the process to disclose any evidence which came into its possession which the Tribunal might reasonably consider indicated that the appellants were at risk.

9.31A Similarly, in relation to SIAC appeals, prior to a standard disclosure obligation being incorporated into the SIAC disclosure rules, the Home Office accepted a general disclosure obligation which was described to the Court of Appeal (and clearly approved by it) in MT (Algeria) v SSHD [2007] EWCA Civ 808, [2008] QB 533 as follows:

135 The Secretary of State has adopted a practice of "exculpatory disclosure": that is, he will make available to an applicant any material that might assist the applicant's case or undermine the Secretary of State's case. The appellant said that this approach was too narrow, It did not respect the "cards on the table" principle in public law cases, as set out, for instance, by Donaldson MR in R v Lancashire CC ex p Huddleston [1986] 2 All ER 941 . It is not easy, as so stated, to see what the difference between the two formulations is supposed to be. However, on exploring the issue it emerged that what is complained of is that by limiting disclosure to matters relevant to the applicant's "case" the Secretary of State could avoid providing material that, although not relevant to a line of argument currently pursued by the applicant, might however suggest a different line of objection that it could be fruitful for him to pursue.

136 The short answer was given by Mr Tam. The applicant's "case" is always going to be that he is at risk of suffering article 3 persecution on return. If the Secretary of State is loyal to his undertaking he will have to disclose anything touching on that general issue, whether or not it affects an argument already put by the applicant.' [emphasis added]

9.31B In CM (Zimbabwe) v SSHD [2013] EWCA Civ 1303 [2014] Imm AR 326, Laws LJ, referred to the guidance in MT [2007] EWCA Civ 808 and said that:

25... Somewhat different considerations perhaps apply in SIAC where a closed material procedure is deployed and special processes for the production of exculpatory material have been developed. Kerrouche, as modified by the later cases, shows in my judgment that in the country guidance context the Secretary of State must disclose material tending to qualify the view otherwise being put forward as to what is the appropriate country guidance. So there is no significant point to be made as to any contrast with the closed material issues arising in SIAC. Kerrouche [1997] Imm 610, to which Laws LJ referred (also a safe third country case) established that the Home Office's duty "not to knowingly mislead" would apply not only where the Home Office knew but where it "ought to have known that the material which it is said [the Home Office] should have disclosed materially detracts from that on which he has relied" (p. 617).

9.31C The key case to which he referred as modifying it was R (Cindo) v IAT [2002] EWHC 246 (Admin), which concerned a substantive rather than third country asylum appeal. Maurice Kay J (as he then was) quoted the passage set out in the previous paragraph from R v SSHD, ex parte Kerrouche [1997] EWCA Civ 2263 [1997] IMM AR 610, emphasising the words 'ought to have known', and said:

'10. The words I have emphasised point to the inclusion of constructive knowledge. This was taken up by Simon Brown L.J. in Konan v SSHD (CA, 20 March 2000, BAILII: [2000] EWCA Civ 3041), who also observed that (para 24):

'…..the Secretary of State's obligation in a full asylum appeal like this may well be higher than in cases like Kerrouche and …. Abdi and Gawe, cases concerned with safe third country appeals.'

11. Taking a broad view of the authorities, they appear to illuminate these principles: (1) there is a duty on the part of the Secretary of State not knowingly to mislead in the material he places before the Adjudicator or the IAT; (2) 'knowingly' embraces that which he ought to have known; (3) a breach of that duty may found judicial review on the basis that either (a) the decision was reached on a 'wrong factual basis' (see Wade & Forsyth, Administrative Law, 8th Ed. Pp.283-284); or (b

9.31D An example of the third principle identified by Maurice Kay LJ was an earlier appeal to the Court of Appeal in the Zimbabwe Country Guidance litigation, JG and CM (Zimbabwe) [2011] EWCA Civ 1704; [2012] EWCA Civ 1060, where the appeal was ultimately allowed by the Court of Appeal unopposed and the Tribunal's determination quashed because of the Home Office's failure to comply with its disclosure obligations in the Tribunal. The failure was not discovered until after the Tribunal had delivered its determination so the Tribunal was not at fault, but the Home Office accepted that its own failure to comply with its disclosure obligations rendered the Tribunal's determination wrong in law.

9.31E In the Court of Appeal in CM [2013] EWCA Civ 1303, Laws LJ held for the first time that the Home Office had a duty of 'due diligence' to identify and disclosure advise material. Referring to the Kerrouche [1997] EWCA Civ 2263/Cindo [2002] EWHC 246 (Admin) formulation, he stated that:

27. ... the question ... perhaps suggests itself: how should the court or tribunal assess "what the Secretary of State ought to have known" for the purpose of the Kerrouche duty? This is the true place of due diligence in this field. The Secretary of State's duty in my judgment is to take reasonable steps to ensure that material relevant to a country guidance case is placed before the tribunal, and she must be candid in relation to documents of which she is aware whether or not they assist her. She may have to enquire of persons or bodies such as other government departments with which in any event the Home Office will be in communication, but she is not required to undertake unprompted or undirected searches.how should the court or tribunal assess "what the Secretary of State ought to have known" for the purpose of the Kerrouche duty? This is the true place of due diligence in this field. The Secretary of State's duty in my judgment is to take reasonable steps to ensure that material relevant to a country guidance case is placed before the tribunal, and she must be candid in relation to documents of which she is aware whether or not they assist her. She may have to enquire of persons or bodies such as other government departments with which in any event the Home Office will be in communication, but she is not required to undertake unprompted or undirected searches.

9.31F The Court of Appeal followed the decision of the House of Lords in R v SSHD, ex parte Abdi and Gawe [1996] UKHL 9 in holding that there was no automatic general disclosure duty in asylum appeals (para 21). In that case, the House of Lords had recognised that there was a "strong argument" of justice in favour of imposing a general disclosure obligation that would apply to all asylum appeals, even accelerated 'without foundation' third country appeals (with which the House of Lords was concerned), but it was outweighed by the need to avoid delay in such appeals which were supposed to be generally straightforward, and, importantly, by the fact that disclosure could in practice be ordered "if in a particular case the special adjudicator is in doubt" (Lord Lloyd, p.315A).

9.31G The Court of Appeal, however, confirmed that it was "obvious" that an order for disclosure could be made under rule 5(3) of the UT Procedure Rules, which is now mirrored in rule 4(3) of the 2014 FTT Rules. Rule 4(3)(b) empowers the Tribunal to "require a party or another person to provide documents, information, evidence or submissions to the Tribunal or a party". There is also the new power conferred by rule 15(1)(b) discussed below.

9.32 In EM and Others (Returnees) Zimbabwe CG [2011] UKUT 98 (IAC), the Tribunal relied on r.5 of the Upper Tribunal Procedure Rules, which, as indicated, encompasses a power to "require a party or another person to provide documents" to direct disclosure of "any material emanating from the FCO regarding its assessment of the political situation in Zimbabwe" (para 131). On the application of duties of disclosure and candour to the FCO, as on many other matters, it is well worth reading the Home Office to the Treasury Solicitor's Guidance on Discharging the Duty of Candour and Disclosure in Judicial Review Proceedings [2010] JR 177. This sets out the duty of candour and disclosure obligations when factual findings need to be made in judicial review proceedings because Article 3, ECHR and similar human rights are engaged. That will always be the case in asylum and human rights appeals. McCloskey J has now confirmed in clear terms that the duty of candour applies to appeals as well as to judicial reviews in the Tribunal (Miah [2014] UKUT 00515 (IAC), see para 9.29 above) so the Home Office, and the FCO, ought to be guided by it.

9.33 In light of Laws LJ's comments on the nature of due diligence, it is important to show that what you are proposing is not an undirected search. The Tribunal has long been prepared to exercise its power to order the Home Office to identify specific material within a relevant category. For example in the Al-Mass'ari (HX/75955/94) case concerning the proposed expulsion of a Saudi dissident to a small Caribbean island in order to appease Saudi Arabia, the Chief Adjudicator ordered disclosure in relation to communications between the governments of the United Kingdom and Dominica.

9.34 You should write to the Home Office identifying the categories of disclosure that you are appropriate and identifying a reasonable period for it to respond, failing which you will apply for a direction. The request should be as focussed as possible to avoid the risk of it being dismissed as a 'fishing expedition'.

9.35 If the request relates to an allegation which is central to the reasons for refusal, and the Home Office refuses to comply with the direction, then it would be quite appropriate to urge the Tribunal to use its power to prevent the Home Office pursuing the allegation at the hearing.

9.35A Sometimes the Home Office objects to disclosure on the basis of confidentiality or damage to international relations or other aspects of the public interest. If so, you may consider offering appropriate undertakings supported by orders under rule 13 and 27 (see chapter 32).

Orders to produce documents under rule 15

9.36 Prior to the 2014 Rules, a witness summons could be used to obtain disclosure of documents, as confirmed by the House of Lords in R v SSHD, ex parte Abdi and Gawe [1996] UKHL 9. As indicated above, Lord Lloyd found that there was no general duty of disclosure upon the Home Office (at least in a third country case) because an [IJ] 'can always exercise his powers to ask for particulars of the Secretary of State's case, or to require a witness to attend and produce documents' (emphasis added)

9.37 A witness summons is no longer required as rule 15 gives the Tribunal a new power to order production of documents by any person:

1) On the application of a party or on its own initiative, the Tribunal may—

(b) order any person to answer any questions or produce any documents in that person's possession or control which relate to any issue in the proceedings.9.39 Rule 15(3) provides that:

9.38 Rule 15(3) provides that:

No person may be compelled to give any evidence or produce any document that the person could not be compelled to give or produce on a trial of an action in a court of law in the part of the United Kingdom where the proceedings are to be determined.9.40

9.39 The IDIs dealing with a witness summons to produce documents (currently under review) previously suggested that:

"The witness should not... agree to disclose any documents which IND would not normally disclose."

...

9.41 This could amount to an incitement to Home Office officials to commit the criminal offence of failing to comply with a witness summons (s.106(4-5) of the 2002 Act). The only limitation on the Tribunal's power to direct the production of documents are those relating to the law of privilege. The Tribunal now has the power under rule 6(3) to refer a case to the Upper Tribunal where there has been a failure to comply with a requirement to produce documents or facilitate the inspection of documents (see para 9.48).

Using the data protection act to obtain disclosure

9.41A You can obtain disclosure of much of your client's Home Office file without approaching the Tribunal by making a Subject Access Request under the Data Protection Act. This is highly advisable in any case in which you think there may be relevant material on your client's file beyond what is likely to be disclosed under rule 24 of the Procedure Rules. Since the Home Office often breaches the statutory time limits and there may be on practical sanction to prevent delay, it is important to make the request at the earliest possible opportunity. There are detailed rules under the legislation as to what information the Home Office is required to disclose. However, in practice, the IDIs (Ch24 S.11.5.1) state that:

"It will normally be quicker to simply photocopy the relevant files and supply these copies to the individual who has made the request. In most cases this will be the method used. It has the advantage of ensuring that no information is missed and avoids the need for producing a written summary which is both time-consuming and more likely to lead to relevant information being withheld from the requestor even when they have a right to see it."

9.41B There is a £10 fee and requests should be sent in writing (there is no form) to 'Data Protection Unit, Lunar House, 40 Wellesley Rd, Croydon, CR9 2BY'.

9.41C The IDIs state that

"UK Border Agency staff should ensure that it is not inadvertently disclosing confidential information to third parties. Particular care should be taken to verify the identity of the requestor in cases involving asylum seeker or any other case where inadvertent disclosure to a third party may cause loss, damage or harm.

...

It is vital to ensure that information about individuals is not disclosed to people who have not been authorised to act on behalf of a particular individual. So, any request made by a person purporting to act on behalf of someone must be accompanied by a signed authorisation by the individual concerned. The representatives should be advised that this is to make sure unlawful disclosure is not made."

9.41D For disclosure other than personal data, it is often worth making a request under the Freedom of Information Act for the information/documents you require as well as seeking a direction from the Tribunal although the timescale for replies often transpires to be too long for first instance appeals. Note that if you formulate a request under the Freedom of Information Act for personal data which is governed by the DPA, the Home Office will indicate that it requires a Subject Access Request and the appropriate fee.

Witness summonses for oral examination

9.42 The Tribunal retains a power to summons a witness for oral examination, although it is no longer necessary to issue a summons simply to compel disclosure of a document (above). The 2014 Rules state that "On the application of a party or on its own initiative (a) by summons (or, in Scotland, citation) require any person to attend as a witness at a hearing at the time and place specified in the summons or citation" (Rule 15(1)(a)).

9.42A You might consider applying to summons a Home Office official to examine him. As discussed in chapter 13, the Home Office interview notes now contain a standard declaration by the interviewer confirming the accuracy of the interview notes (see para 13.11) but the interviewer will rarely, if ever, attend the hearing. The Home Office's IDIs state that:

A witness summons may be requested where the appellant's representatives wish to dispute the contents of an interview report, a PCU call-note or the accuracy of a translation. The presenting officer will resist this request in the first instance by relying on the fact that the Home Office has prepared an explanatory statement or reasons for refusal letter and a bundle of documents, which together provide a record of the facts relating to the decision and the reasons for it. It should be argued that since the standard of proof is not that of a criminal court, the report of an immigration officer or a caseworker should be admissible without the presence of the author. The presenting officer should therefore ask the adjudicator or Tribunal whether they would be prepared to accept a signed statement from the IO or caseworker indicating that the report is a true account of the interview/visit to PCU/etc.

9.43 A 'signed statement' simply asserting that the interview notes are accurate should, of course, ordinarily carry little weight set against oral evidence that it is inaccurate. In Khalid and Others (Ealing, West London and Hammersmith College) Pakistan [2011] UKUT 295 (IAC), the Tribunal held that:

11... It is perfectly possible for significant weight to be afforded to written testimony. But the issue needs to be properly addressed. In the present case, the Designated Immigration Judge's conclusion, that any differentiation between oral and written evidence could effectively be brushed aside, on the basis that the party not relying on that evidence could have summonsed the other side's witness, was not a proper approach.

9.43A Therefore, before requesting a witness summons, think carefully about what you will achieve by questioning the person. If you summons a witness, then he will normally be treated as your witness. That means your examination may be treated as examination in chief in which case you will not be permitted to ask leading questions on contentious issues (a point that the Home Office has been alive to – seer para 9.50 below). That may also mean that the HOPO's examination will be treated as cross-examination. He will therefore be permitted to put leading questions, notwithstanding that the witness' sympathies lie with the Home Office rather than the appellant.

9.44 The rule in civil litigation is that you can only cross-examine such a witness if he is declared hostile. That requires not only that the witness is giving unfavourable answers, but that he has no desire to tell the truth. It may be difficult to persuade a judge to make such a declaration in respect of a Home Office employee. The Tribunal is not bound by any rules of evidence, and there is no reason why this rule should be applied inflexibly to asylum and human rights appeals. However, there is no Tribunal caselaw on the subject.

9.45 In Kesse v SSHD [2001] EWCA Civ 177, the Court of Appeal concluded that the Tribunal had power to summons a witness where neither party had applied for a summons, and this is now made express in rule 15(1). However, it stated that a tribunal should hesitate long before exercising the power when the summons was not supported by either party. It has been held that you cannot ask the judge to issue the summons himself so as to avoid the rule that you cannot cross-examine a witness that you have summonsed (see SSHD v Prendi (01/LS/00060), para 30.14). Note however that in NA & Others (Cambridge College of Learning) Pakistan [2009] UKAIT 00031, the Tribunal appeared to have no difficulty with an arrangement whereby the respondent's counsel called as her witness an individual who had been summoned by the Tribunal at the request of the appellant's representative.

9.46 You may therefore want to clarify the Tribunal's view in advance. If your examination is to be restricted, it follows that you have to decide whether you will be able to elicit the necessary evidence from the witness without leading questions. You will need to have considerable confidence that the witness will have no option but to admit the necessary facts.

9.47 There might be occasions when you wish to summons the author of the refusal letter. There is authority indicating that refusal letters can be treated as evidence. Where the allegations in the refusal letter appear to be misleading or raise potential improprieties, you ought to be within your rights to seek a summons against the author in order to investigate the basis for his assertions. However, you would again need to think carefully about how you would formulate your examination effectively in the face of an unhelpful witness and given the restrictions which may be imposed on your examination. In many cases, you will be better off simply pointing out that the refusal letter is a wholly unsatisfactory piece of evidence which should be given little weight.

9.48 As indicated above, to disobey a witness summons without reasonable excuse is a criminal offence. In circumstances where an employee of the respondent is defying an order of the court, it will also be appropriate for the judge to draw the strongest adverse inference against that party. The Tribunal also has the power under rule 6(3) to refer a matter to the Upper Tribunal for it to exercise its powers under s. 25 Tribunals Courts and Enforcement Act 2007 to hold a person in contempt of court. This power exists where any person has failed to comply with a requirement imposed by the Tribunal:

(a) to attend at any place for the purpose of giving evidence;

(b) otherwise to make themselves available to give evidence;

(c) to swear an oath in connection with the giving of evidence;

(d) to give evidence as a witness;

(e) to produce a document; or

(f) to facilitate the inspection of a document or any other thing (including any premises)

9.49 Rule 15(2) provides that:

(2) A summons or citation under paragraph (1)(a) must—

(a) give the person required to attend 14 days' notice of the hearing or such shorter period as the Tribunal may direct; and

(b) where the person is not a party, make provision for the person's necessary expenses of attendance to be paid, and state who is to pay them.

Although the Rules no longer stipulate that those expenses are to be paid by the party seeking the witness summons, it may be expected that the party calling a witness should pay his expenses unless there is good reason for some other provision. If you are seeking to summons a Home Office official you should argue that if they are attending in the normal course of their employment, their expenses should be met by their employer. The Tribunals Service has confirmed in an e-mail to ILPA on 8 July 2011 that "necessary expenses" is understood by it to mean travel expenses. Note also that a hearing, as defined in rule 1(4), "includes a hearing conducted in whole or in part by video link, telephone or other means of instantaneous two-way electronic communication" so you may propose the option that the summons requires examination by video or telephone rather than attendance at the hearing centre.

9.49A Rule 15(4) provides that:

(4) A summons, citation or order under this rule must—

(a) state that the person on whom the requirement is imposed may apply to the Tribunal to vary or set aside the summons, citation or order, if they have not had an opportunity to object to it; and

(b) state the consequences of failure to comply with the summons, citation or order.

9.49B If you obtain a witness summons, you should check that these requirements have been complied with as non-compliance may affect the subsequent enforcement of the order. The consequences which are to be stated are not particularised in the Rules or any guidance. They will include referral under rule 6(3) to the Upper Tribunal for consideration of contempt of court proceedings and prosecution. CPR Practice Direction 81, para 1 provides a specimen form of penal notice as follows in respect of contempt of court as follows: "If you the within-named [ ] do not comply with this order you may be held to be in contempt of court and imprisoned or fined, or your assets may be seized." It may also be advisable to set out the terms of the criminal offence in s.106(4-5) of the 2002 Act:

(4) A person commits an offence if without reasonable excuse he fails to comply with a requirement imposed in accordance with [Tribunal Procedure Rules in connection with proceedings under [section 82]...] to attend before [...]the Tribunal—

(a) to give evidence, or

(b) to produce a document.

(5) A person who is guilty of an offence under subsection (4) shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.

9.50 The IDIs gave the following further guidance to Home Office officials who are summonsed:

"WHERE A WITNESS SUMMONS IS ISSUED

The person named on the summons should attend. Failure to do so is an offence. An IND official called by the appellant should not speak to the appellant's representative before giving evidence. The witness should not be cross-examined by that representative... Any attempt at cross-examination should be strongly resisted by the presenting officer." (IDI under review).