The decision

Heard at Field House

NK (Documents: Must Send Both Parties) DR Congo [2003] UKIAT 00133
On 4 November 2003


Corrected transcript of decision given at hearing Signed: 25.07.2013
Issued: 10/11/2003


Mr J Freeman (Chairman)
Mrs M E McGregor






For the appellant: Mr R O’Ryan (counsel instructed by Newcastle Law Centre)
For the respondent: Miss N Hough


This is an appeal by the Home Office against the decision of an adjudicator, Mrs N Bircher, sitting at North Shields on 24 April 2003, allowing an appeal by a citizen of the Democratic Republic of Congo against the grant of only limited leave to remain in this country.

2. The issues raised in the grounds of appeal are essentially two. The first relates to a document produced for the first time by the appellant in cross-examination, and the second to a report by her GP, which was relied on to establish that she was suffering from post traumatic stress disorder. We need to deal first with ground 1, because if the adjudicator was wrong in what she did about that document, there will clearly need to be a fresh hearing.
3. The adjudicator deals with it as follows, at paragraph 15:

In cross-examination she produced a letter which confirmed that she was a member of the UDPS.

Clearly that was the first time this document had been seen by either the adjudicator or the presenting officer. The grounds of appeal cite objections made by the presenting officer to its production at that point and Mr O’Ryan, who appeared for the claimant at the hearing before the adjudicator as he has done before us, helpfully agreed that objections had been made.
4. The production of documents at or shortly before the hearing has long bedevilled asylum appeals. While everyone would wish to encourage both adjudicators and presenting officers to allow appeals to be dealt with on their merits and on all the known facts on the day when they are listed for hearing, adjudicators must recognise that late production of documents may cause genuine difficulties. If objections are made, then they must be recorded, together with the reasons for over-ruling them, if that is done.
5. The adjudicator went on to deal with the effects of that document at paragraph 23.
The Secretary of State noted that the appellant has not provided any evidence that the appellant has taken a prominent role as section President UDPS. I find that the appellant has subsequently produced a certificate from the UDPS confirming that she held the post of President of the Women’s Movement within the Party.

6. The document which was actually produced at the hearing was the one in French which appears at page 30 of the claimant’s bundle. It is on what appears to be the headed writing paper of the UDPS in Katanga, and it is recorded as having been signed at Lubumbashi on 11 August 2002. As Miss Hough has pointed out, the bottom of that document shows what appears to be a record of electronic transmission as early as 16 September 2002, so there is no question but that it could have been properly filed and served in good time in advance of the hearing before the adjudicator.

7. What actually happened, following its production during the hearing, was that the adjudicator had it informally translated by the Court interpreter. There is nothing wrong with that procedure, so long as the other side has had a proper opportunity to deal with the contents, which in this case did not happen.

8. The next thing that happened was the adjudicator gave further time for a written translation to be submitted. That was done, and it was before the adjudicator when she wrote her decision; but it was never sent, and again Mr O’Ryan has helpfully confirmed that, to the presenting officer. That was a mistake, for which the adjudicator has to bear the responsibility: it is elementary that any evidence received after the hearing must be communicated to the other party for an opportunity at least to comment on it.

9. Mr O’Ryan has argued that in reality this document did not make any great difference to the adjudicator’s resolution of the issues in this case. He has suggested that there was no real issue on credibility taken by the Home Office in paragraphs 5 and 6 of their refusal letter. We disagree. Paragraph 5 clearly challenged, in the absence of any documentary evidence, the appellant’s claim to have taken a prominent role as Section President of the UDPS. Paragraph 6 went further and pointed out that there were grounds for doubting the appellant’s credibility. It may have been short on reasons but it made clear what was challenged.

10. When the adjudicator made her decision, she accepted (at paragraph 22) the appellant’s credibility on her own history; but she went on to state the issue taken by the Home Office in paragraph 5 of the refusal letter, in the first sentence of her paragraph 23, and found in favour of the appellant in the next sentence, on the basis of the letter which had been produced during cross-examination.

11. In our view it is crystal clear in this case that the adjudicator was deciding in favour of the claimant, at least to a significant extent, on the basis of a document which was produced in circumstances where it was unfair to the presenting officer and to the public at large whom he represented, to allow that to be done without some opportunity for investigation.

12. It follows that there is no alternative but for the claimant’s oral evidence to be re-heard, with a proper opportunity for the Home Office to cross-examine her about the document from the UDPS. That will have to take place before another adjudicator who will also be able to consider the specialist medical evidence now filed on behalf of the claimant, about which we say nothing.

13. The appeal is allowed with a direction for a fresh hearing (remitted to another adjudicator, not to Mrs Bircher).

John Freeman