The decision

ar ZA (Exclusion of evidence - Lost record of proceedings) Somalia [2003] UKIAT 00143


Date of Hearing: 1 September 2003
Date Determination notified:


Mr D J Parkes (Chairman)
Professor D C Jackson

Secretary of State for the Home Department




1. The Secretary of State appeals against the decision of an Adjudicator, Mr D.G. Zucker, allowing the appeal of the respondent and her dependant child against removal directions as an illegal entrant following refusal of her asylum claim. The respondent also claimed that removal would be in breach of her human rights.

2. Before us the Secretary of State was presented by Mr M. Blundell and the respondent by Mr Danny Bazini of counsel, instructed by Howells Solicitors of Sheffield.

3. The respondent claims to be a Somali national who, at the age of three, went to Yemen with her parents fleeing because of persecution by the authorities of that time. The respondent’s case is that she fears persecution or ill-treatment if returned either to Somalia or Yemen. The Secretary of State did not believe that the respondent was a Somali national, nor did he believe that the respondent was at risk of ill-treatment or persecution if returned to the Yemen. As the respondent had claimed to be a Somali national, removal directions were set for the country in order, as the letter of refusal indicates, that an Adjudicator could review the question of the respondent’s nationality. If the Adjudicator took the same view as the Secretary of State, the Secretary of State would seek to establish the respondent’s ‘true nationality’.

4. The proceedings before the Adjudicator therefore focused on the question as to whether the respondent had established her claim to Somali nationality and the evidence with regard to the Yemen was considered solely in the context of the respondent’s credibility. The Adjudicator held on the evidence that the respondent was a Somali national, and that the respondent would be at risk of persecution or ill-treatment because she was at risk as a woman displaced from within the country and was a member of the minority Benadiri clan. The Secretary of State was granted leave to appeal on two grounds – that the finding that the respondent was a Somali lacked any foundation in the evidence and, secondly, that the Adjudicator had wrongly excluded as evidence the Presenting Officer’s record of earlier proceedings in the case, and hence had excluded from consideration the question of consistency of the respondent’s oral evidence.

The procedural history of the appeal

5. The appeal before the Adjudicator was started on 2 December 2002 when the respondent was represented by Mr Halligan of counsel. The Adjudicator records in his determination that the matter went part heard and was adjourned until 13th January 2003. We were told by Mr Bazini that the oral evidence had been heard on the first occasion and that the adjourned hearing was solely for the purpose of the making and consideration of submissions. When the matter came back before the Adjudicator, as he records in his determination, the record of proceedings of the earlier occasion had been lost. The Adjudicator’s laptop computer which contained the only record had been stolen. At the adjourned hearing the appellant was represented by Mr Bazini and he told us that the first he knew of the problem was on his arrival for the hearing. The Presenting Officer on both occasions was the same, Mr Bligh.

6. The Adjudicator records in his determination that he indicated to the representatives that it was open to either of them to request a transfer but that he (the Adjudicator) would be ‘quite happy to start the matter again as if no evidence had been taken at all’. It is said in the determination that Mr Bligh was content for the matter to start again but that Mr Bazini after taking instructions requested a transfer order. During the adjournment to allow Mr Bazini to take instructions, the Adjudicator sought the advice of the Regional Adjudicator and on that advice refused the transfer order on the basis that it was not within his power to grant it. The Adjudicator then said that the matter should carry on with the evidence being taken again. The Adjudicator added

‘I further indicated that I would put entirely out of my mind any evidence which might have been given on the earlier occasion that whilst Mr Bligh might refer to his notes for the purpose of cross-examination, what was said on the earlier occasion could not be treated as evidence.’

7. In the grounds of appeal prepared by the Presenting Officer who had conducted the case before the Adjudicator, it is asserted that he (the Presenting Officer) requested that his record of proceedings be admitted as evidence. This, as is said in the grounds, was refused on the basis that it was ‘inadmissible hearsay evidence’. The Presenting Officer then requested that if the evidence changed he should be allowed to cross-examine the respondent on her previous inconsistent statement. This, it is said, was also refused ‘the Adjudicator stating that the hearing was to be heard de novo and no questions relating to the previous hearing would be permitted’.

8. The submission in the grounds was that the respondent’s evidence had changed, that the Secretary of State’s case was ‘gravely prejudiced’ by the Adjudicator’s ruling, and that the Adjudicator had erred in excluding the Presenting Officer’s record.

9. Mr Bazini agreed that the Adjudicator had excluded the Presenting Officer’s record from evidence but said that the assertion that the Presenting Officer could not cross-examine the respondent had to be qualified. He pointed out that in his determination the Adjudicator had said that Mr Bligh might refer to his notes for the purposes of cross-examination.

10. Mr Bazini said that following the Adjudicator’s ruling that the case should start again and his exclusion of the Presenting Officer’s record there was no further objection by the Presenting Officer. In particular, there was no request for an adjournment or for any transfer because of the ruling. Both representatives went ahead with the hearing as the Adjudicator had ruled.

The substantive point

11. The Adjudicator heard evidence as regards the respondent’s claim of being at risk of persecution in the Yemen. This stemmed from the persecution of her father by the authorities and his disappearance after detention and torture, ill-treatment of her following enquiries she made about her father, the killing of her husband by Yemeni security guards and threats being made to her security forces.

12. The Adjudicator found the respondent’s evidence to have been consistent throughout her case, and that insofar as it referred to the Yemen was supported by the objective evidence. The two aspects of her evidence directly relating to Somali nationality were, first, that the respondent speaks no Somali but Arabic, and secondly, whether a birth certificate produced in support of the respondent’s case was genuine. The Adjudicator did not accept the birth certificate as genuine, and indeed the respondent said she could not say whether or not it was, having found it amongst her father’s things. However, on the evidence as whole, the Adjudicator believed the respondent and in particular her claim to be a Somali national. As we have said, the Adjudicator allowed the appeal both as to asylum and human rights.

The proceedings before the Tribunal

13. The argument before us focused almost entirely on the procedural points and we consider these first. If we are in favour of the Secretary of State, the matter must be remitted for a rehearing and the substantive point as to nationality become irrelevant to this appeal.

14. Mr Blundell contended that the matter was simple and direct in that the Adjudicator had no power to start the hearing again having once heard the evidence. He sought to draw an analogy with the Tribunal’s power to remit a case for rehearing. There was no such power in an Adjudicator, said Mr Blundell, and yet in this case in practice the Adjudicator had remitted the matter to himself. Alternatively, said Mr Blundell, for the reasons stated in the grounds of appeal, the Adjudicator had erred in excluding the Presenting Officer’s record.

15. As to the first point, Mr Bazini said that the procedure adopted here had nothing to do with remittal. That was concerned with the rehearing of the case once it had been determined. An Adjudicator had power to control its own proceedings and the action taken by the Adjudicator was within the scope of that power.

16. As to the exclusion of the evidence Mr Bazini argued strongly that it was proper to exclude it for there was no consent as to the record, and as an account of the previous proceedings it could have little or no weight. Further, the Presenting Officer was allowed to put questions as to statements made by the respondent at the previous hearing. Thridly, said Mr Blundell, the Presenting Officer had always been content for the matter to be reheard and it was Mr Bazini who had objected to that course. It was unfair, therefore, for the course which the Presenting Officer had supported to have been taken and then for Secretary of State to indicate that the course should have been different. Once the ‘record’ had been excluded it was open to the Presenting Officer to seek an adjournment or a transfer. That had not been done.

17. Mr Blundell pointed to the difficulties of admitting the record as evidence – the Presenting Officer would have to appear as a witness and could not then present the case. Further, said Mr Blundell, it was not clear that the Secretary of State would seek to put in the record if this required the Presenting Officer to be a witness, and therefore any remittal would not only be without point, but be a rehearing of a case for no reason.


18. The power of the Adjudicator to restart the hearing

We agree with Mr Bazini that this case is not concerned with remittal. It is concerned with how the matter is to be handled when the record of proceedings on which submissions are to be placed is no longer in existence. As Mr Bazini pointed out, on occasion matters are restarted when, for example, it appears after some evidence has been taken, that the evidence has not been accurately reflected by an interpreter. It is apparent, therefore, that the Adjudicator acted entirely within his power in restarting the proceedings. In this context we note that when the case was heard the power of transfer was vested only in the Chief Adjudicator and whether or not the circumstances of this case fall within that power seems at least arguable.

The effect of rehearing on the earlier proceedings

19. In our view the Adjudicator erred in the view he took that starting the proceedings again somehow nullified or obliterated the earlier evidence. That it could not do for though the matter could not proceed to a conclusion because of the loss of the Adjudicator’s record, that did not mean that the respondent had not made statements in the proceedings connected with the case. The issue therefore was whether there was any evidence of those statements. The Adjudicator’s view that the Presenting Officer could use his notes in cross-examination but could not submit those notes as evidence of the statements made, seems to us to accept the relevance of those statements but to reject the ‘evidence’ on which such questions would be based. It would then make it extremely difficult for the Presenting Officer to put a question concerning an earlier statement to the respondent without simply having to accept whatever answer was given, whether or not there was ‘evidence ‘ to the contrary.

The adducing of the ‘record of proceedings’

20. The Presenting Officer’s record being admissible evidence, the next question ought to have been as to its method of submission. That would depend essentially on the view taken by the respondent’s representatives. If the representative agreed that the Presenting Officer’s record should be accepted as an accurate reflection of the previous proceedings, then the hearing could proceed on that basis. If, however, it were thought that the record should be adduced in a way which would make it open to cross-examination, then the Secretary of State would have to consider whether the Presenting Officer should appear as a witness and ‘prove’ his record.

21. Further, the respondent’s representative may take the view (entirely understandably) that the evidence should not be admitted without the respondent having the chance to consider its accuracy. There would therefore be a proper case of adjournment if only for a short time. It may be that in this case an adjournment for a period would have allowed counsel who had appeared at the first hearing to produce his record and thereby there would be a chance of an agreed record. To summarise, in our view the Adjudicator should have considered how to proceed in the light of submissions made to him as to the adducing of the evidence and no doubt the weight to be given to it in the context of how it was submitted.

The fairness of the Secretary of State’s position

22. Once the Adjudicator had ruled that the record was not admissible it is difficult to see what the Presenting Officer could have done other than carry on or seek an adjournment. The Adjudicator had already ruled against the transfer. It would therefore be pointless in seeking such an order, not only because of the lack of power but also that it would not remove the issue of the standing of the ‘record’ of earlier proceedings. It is possible that an adjournment might have enable the representative to consider the matter more fully and for the Adjudicator to then have heard argument on it, but in the circumstances of the case it does not seem to us that the Presenting Officer could be criticised for simply accepting the ruling and getting on with the hearing. We do not see any inconsistency in that and in then appealing on the basis that the Secretary of State’s case has been materially affected by the exclusion. It may have been as well for the Presenting Officer to have indicated that would reserve the right to question the Adjudicator’s ruling in due course but failure to do that does not remove the force of the argument or render it unfair to make it.

23. Mr Bazini sought to make much of the fact that the Presenting Officer had accepted the Adjudicator’s suggestion that he might rehear the case while it was Mr Bazini who had asked for transfer. But any criticism of the ground of appeal in the light of the willingness for the case to be reheard ignores the chronology of events. Once the question of transfer was excluded from consideration and the rehearing started, the Adjudicator’s ruling as to the admissibility of the evidence had to be accepted, even if open to challenge later.

The course to be adopted

24. The matter must therefore be remitted for rehearing. Evidence of the respondent’s statements before Mr Zucker on both occasions will be admissible. The weight to be given to that evidence depends upon the view taken by the Adjudicator of its accuracy. That may be resolved by counsel’s note from the earlier proceedings or there may be agreement between the parties. Lacking that agreement or an agreed note, the weight of any ‘record’ would be affected by the force of any challenge to it accuracy or reliability. For any such challenge to be effectively met it may then be necessary for the Presenting Officer (Mr Bligh) to be called as a witness. These are matters for the party.

25. Mr Bazini expressed concern that the matter might be remitted and the Secretary of State take not action to call the Presenting Officer as a witness. In our respectful view, this objection does not go to the heart of the matter which is the admissibility of the record as evidence. As we say the lack of any opportunity to challenge the maker of that record as to its accuracy may affect the weight to be given to it by the Adjudicator. The essence of this appeal is that there was and is evidence of statements made by the respondent before an Adjudicator and that evidence was wrongly excluded.

The substantive ground

26. As the matter is being remitted the respondent’s case will now be considered anew with the evidence being weighed by the Adjudicator. In those circumstances we need not deal with the contentions regarding the Adjudicator’s findings. We say only that it seems to us that the Adjudicator weighed all aspects of the evidence before him in reaching his conclusions, the error lying in the fact that not all the evidence that was admissible was before him.

27. The appeal is allowed insofar as the matter is remitted to an Adjudicator other than Mr D.G. Zucker for rehearing.