The decision



1. The Secretary of State appeals the determination of an Adjudicator (Mr. M. E. Curzon Lewis) who allowed the appeal of a citizen of Iran, (here and after for convenience referred to as the Appellant) against the decision of the Secretary of State to refuse his application for asylum.

2. Mr. G. Phillip appeared for the Secretary of State. Mr. Gaskin of Counsel, instructed by Elder Rahimi represented the Appellant.

3. The Adjudicator determined the appeal without considering its merits under Rule 33(2)(a) of the Procedure Rules. In the grounds of appeal settled by the Secretary of State he submitted that the Adjudicator was in error in failing to consider the case on its merits and reference was made to the case of Muhammad (01/TH/11233). Furthermore, the case had been listed for mention only and the Adjudicator had erred in determining the appeal substantively on that date.

4. The Tribunal delivered its decision at the hearing on 7 November 2003. Unfortunately there has been a failure in the recording of the determination and what follows is an attempt to reproduce what was said then.

5. The appeal was initially listed for a substantive hearing on 9 September 2002. The evidence for the Appellant included what was said to be a court verdict, arrest warrant, court summons and trading licence. The Presenting Officer on that occasion applied for and was granted an adjournment to enable the exhibit to be authenticated.

6. The next hearing was on 22 October 2002. The Presenting Officer applied for an adjournment. While the documents had been sent to the British High Commission in Tehran on 15 September 2002, they had not yet been authenticated. The Adjudicator had granted the adjournment and had given a direction which had been subsequently issued on 25 October 2002 in the following terms:

‘The Respondent’s representative shall notify all parties on the timetable for the production of the verification report if, either it is not available for the for mention hearing or, if it is available at either a sooner or later date. The report to be sent at least seven days before any listed hearing date.’

7. The case was not listed for mention but was listed for a substantive hearing before the Adjudicator on 5 December 2002. On that occasion the Presenting Officer told the Adjudicator that she had telephoned the appropriate office who had stated that there was a backlog for authenticating documents in Iran. The authenticating officer in Tehran had gone on leave and no specific return date could be given.

8. It was stated that the Presenting Officer on 9 September 2002 had indicated that if the documents were found to be genuine, he, the Presenting Officer, would be minded to grant asylum.

9. The Adjudicator then proceeded to determine the matter under Rule 33(2)(a) without consideration of the merits. He allowed the Appellant’s appeal. He noted that the Respondent had been in possession of the evidence for more than three months. The difficulties for the Secretary of State’s agents in Tehran were freely acknowledged by the Adjudicator but had to be weighed against the seriousness of the evidence in the particular case. The Adjudicator found that the burden of proving that the documents were not genuine shifted to the Respondent.

10. Mr. Phillip relied on the grounds of appeal and submitted that Tanveer Ahmed [2002] UKIAT 00439 established that the burden of proof remained on the Appellant throughout.

11. Mr. Gaskin submitted that the case was an unusual one. He accepted that usually a breach of directions should not result in summary judgement but nothing appeared to have been done in the intervening period. The Appellant had had his claim allowed and had been in limbo for an extended period.

12. It appears to the Tribunal that the Adjudicator was clearly in error in this case in allowing the appeal without consideration of its merits. Firstly, the delay had not been a very long one. The Presenting Officer had originally applied for an adjournment. This was not resisted by the Appellant. In our view, Adjudicators should not adjourn proceedings in circumstances such as this, they should determine the matter then and there. As Tanveer Ahmed makes clear, the burden remains throughout on the Appellants and their representatives. The Adjudicator clearly misdirected himself in this respect.

13. The direction issued by the Adjudicator on 25 October 2002 is not in the least clear. The Secretary of State was directed to notify the parties about the timetable for the production of the verification report. It was not made clear what would follow if the timetable was not complied with. Furthermore, it was represented that there would be a for mention hearing and not a substantive hearing. The Tribunal has indicated on many occasions that it is generally inappropriate to determine asylum appeals without consideration of the merits. The Adjudicator stated that the Respondent had failed to comply with the directions but it is not clear that he had. He had informed the Adjudicator that there was a backlog in determining authentication reports.

14. It would have been open to the Adjudicator at any stage to have determined this appeal on its merits. The Adjudicator, for example, might have been satisfied, having considered the matter in the round, that the documents were authentic. It would have been necessary for the Adjudicator, however, to have reminded himself that the burden remained on the Appellant.

15. We appreciate that there has subsequently been delay, but that does not justify the approach of the Adjudicator in this case.

16. This case illustrates well the wisdom of determining appeals rather than adjourning them. Secondly, if directions are issued they should be clear in their terms. Thirdly, if it is indicated that a case is to be listed for mention, then it should be listed for mention.

17. For the reasons we have given, this Adjudication is reversed. The Secretary of State’s appeal is allowed. The matter must be remitted for a hearing before a different Adjudicator.

18. The appeal is allowed to the extent indicated.

Mr. G. Warr
Vice President