The decision

AK (Admission of Evidence - Time limits) Iran [2004] UKIAT 00103


Heard at Field House Determination notified
On: 16 April 2004
Prepared: 16 April 2004 14/05/2004


Mr D K Allen (Vice President)
Mr L V Waumsley (Vice President)
Mr A E Armitage



Secretary of State for the Home Department


For the Appellant: Mr A Slatter of counsel, instructed by Paragon Law, solicitors
For the Respondent: Ms J Bracken, Home Office Presenting Officer

1. The appellant, a citizen of Iran, appeals with permission against the determination of an adjudicator (Mr R J Pooler), sitting at Nottingham Magistrates Court, in which he dismissed the appellant’s appeal on both asylum and human rights grounds against the respondent’s decision to refuse his application for asylum and to give directions for his removal from United Kingdom as an illegal entrant.
2. The appellant arrived in the United Kingdom in May 2000. He applied for asylum some two weeks later. The grounds on which he did so were that he claimed that he would be at risk if he were to be returned to Iran, both at the hands of the Iranian authorities, because he had expressed opinions which were not acceptable to the authorities during his student days and had begun to doubt his Muslim faith, and also at the hands of members of Hezbollah, because of his involvement in an unsuccessful attempt to organise a lottery to raise money for charitable purposes.
3. In his determination, the adjudicator rejected the appeal on both asylum and human rights grounds. Although he accepted some parts of the appellant’s evidence, he rejected the appellant’s claim that he had been detained on two occasions, once by officials acting on the instructions of the Speaker of the Iranian National Parliament, and once by members of Hezbollah. He also rejected the appellant’s evidence that his late father and his brother had been questioned about him by the Iranian authorities following his departure from Iran. He concluded that the claimant would not be of any adverse interest to the Iranian authorities if he were to be returned. It was on the basis of those findings that the adjudicator dismissed the appeal on both asylum and human rights grounds.
4. The appellant sought, and was granted, permission to appeal to this Tribunal on a number of grounds. The main ground on which he relies is that the adjudicator erred in refusing to admit evidence which the appellant sought to adduce at the hearing and which was alleged to be relevant to both his asylum claim and his human rights claim. The evidence in question is referred to in some detail at paragraph 9 of the adjudicator’s determination.
5. The adjudicator’s reasons for refusing to admit that evidence are set out in the same paragraph of his determination. They may be summarised as follows. The hearing before the adjudicator took place on 29 September 2003. Directions had been given in standard terms as long ago as 4 June 2003 requiring both parties to file the documentary evidence on which they intended to rely no later than seven days before the date of the hearing. It is not in dispute that the appellant failed to comply with that direction in relation to the additional documentary evidence referred to at paragraph 9 of the adjudicator’s determination. The documents in question had not been sent to the respondent until 24 September 2003, which was less than seven days before the date of the hearing.
6. The adjudicator concluded in his determination that he was not satisfied that there was a good reason why the documents had not been served previously on the respondent. In particular, he took into account the fact that the same documents had not been served in advance of a previous hearing on 18 August 2003, which had had to be adjourned, and that the respondent was not represented before him. It was for those reasons that he refused to allow the documents to be adduced in evidence before him.
7. Rule 48(5) of the Immigration and Asylum Appeals (Procedure) Rules 2003 provides as follows:
“An adjudicator or the Tribunal must not consider any evidence which is not filed or served in accordance with time limits set out in these Rules or directions given under rule 38, unless satisfied that there are good reasons to do so”.
8. It is common ground between the parties that the evidence in question had not been filed in accordance with the time limit set out in the standard-form directions sent to both parties on 4 June 2003. The adjudicator therefore clearly had the power to exclude that evidence under rule 48(5). The issue before us is whether he was right to do so.
9. In this regard, it is settled law that asylum appeals require the “most anxious scrutiny” -- see the decision of the House of Lords in Bugdaycay v Secretary of State for the Home Department [1987] AC 514, [1987] All ER 940, [1987] 2 WLR 606, [1987] Imm AR 250. The same requirement also applies to appeals on human rights grounds.
10. Furthermore, the 2003 Procedure Rules stipulate at rule 4:
“The overriding objective of these Rules is to secure the just, timely and effective disposal of appeals and applications in the interests of the parties to the proceedings and in the wider public interest” (emphasis added).
11. The provisions of rule 48(5) are mandatory in their terms. They provide expressly that an adjudicator or (if applicable) this Tribunal must not consider any evidence which is filed or served late, unless he or it is satisfied that there are good reasons to do so. The qualification contained in those closing words relates to good reasons for considering the evidence, not good reasons as to why the evidence was not filed or served in time. There is a clear public interest in ensuring that it should not be open to parties to disregard with impunity directions given by the Immigration Appellate Authority, whether by an adjudicator or this Tribunal. The same public interest applies in ensuring that parties should not be entitled to disregard with similar impunity the requirements of the Procedure Rules.
12. However, the understandable desire on the part of adjudicators and this Tribunal to enforce due compliance with such directions and provisions must be balanced against the competing requirement to ensure that justice is done in a jurisdiction in which appeals routinely require the “most anxious scrutiny”, and in which the issues at stake frequently involve matters of life, limb and liberty. There is an inevitable tension between those conflicting interests.
13. Whilst there may be individual cases in which it would be right for an adjudicator to exclude material, or potentially material, evidence on which party (normally the appellant) wishes to rely by reason of the failure by that party to file or serve the evidence in time, nevertheless as a general principle, the requirement to ensure that justice is done in appeals requiring the most anxious scrutiny will in most cases outweigh the understandable desire on the part of the Immigration Appellate Authority to ensure that its directions and the provisions of the Procedure Rules are not flouted with impunity.
14. In the present instance, we are satisfied that the late evidence which the appellant sought to adduce before the adjudicator, and which the adjudicator refused to consider because it had not been filed in time, was prima facie material evidence which, if it had been considered by him, might (we put it no higher than that) have resulted in the adjudicator arriving at a different conclusion in relation to the credibility of the appellant’s evidence. In the circumstances, his decision to exclude that evidence from consideration was one which he ought not to have taken. It was a decision which he was empowered t take under rule 48(5). However, we are satisfied that it was not one which he was justified in taking in the circumstances before him. In so doing, he allowed himself to fall into error.
15. In consequence, we see no alternative save to remit this appeal for a fresh hearing before another adjudicator so as to enable him or her to consider the evidence as a whole, including that which the original adjudicator refused to accept, and to arrive at fresh findings of fact on the material issues.
16. This appeal is therefore allowed to the limited extent that it is remitted for a fresh hearing before an adjudicator other than Mr R J Pooler

Signed Dated 20th April 2004

L V Waumsley
Vice President

Andrew Jordan
Vice President
2 December 2003