Tribunal decisions

The decision

GY (refusal to allow cross-examination) Iran [2004] UKIAT 00264

IMMIGRATION APPEAL TRIBUNAL

Heard at: Field House
Determination notified
On: 6 September 2004

Prepared: 6 September 2004
22 September 2004

Before:

Mr J Barnes (Vice President)
Mr L V Waumsley (Vice President)
Mr J G Macdonald

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant

and

Respondent

DETERMINATION AND REASONS

For the Appellant: Mr L Parker, Home Office Presenting Officer
For the Respondent: Mr S Kerr of counsel, instructed by Punatar & Co, solicitors

1. The appellant ("the Secretary of State") appeals with permission against the determination of an adjudicator (Mrs P H Drummond Farrall), sitting at Taylor House, in which she allowed on both asylum and human rights grounds the appeal of the respondent ("the claimant"), a citizen of Iran, against the Secretary of State's decision to refuse him leave to enter the United Kingdom after refusing an application for asylum made by him.

2. The claimant arrived in the United Kingdom in January 2003. He applied for asylum on arrival. The grounds on which he did so may be stated shortly. His family was involved in a group opposed to the Iranian government. He himself worked as a taxi driver, and assisted his brother-in-law by distributing weapons in his taxi. In December 2002, his son was detained by the authorities during a student demonstration. The claimant went to the detention centre to seek his son’s release. He became involved in an argument with the police officers, and after his family had been insulted, he took out a gun which he was carrying and fired a shot into the air.

3. He then fled from the scene in his taxi. However, in his haste, he became involved in a road traffic accident, and had to abandon his taxi to continue his flight on foot. The Iranian authorities found a cache of weapons which he had hidden in the boot of his taxi. He claimed asylum on arrival in the United Kingdom that he would be at risk of detention and persecution at the hands of the Iranian authorities if he were to be returned to Iran.

4. In her determination, the adjudicator accepted the claimant's evidence regarding the incident in which he fired a gun into the air during the argument at the detention centre, and that he then fled from the scene in his taxi, which he abandoned after crashing it. However, she rejected his evidence in all other respects. In particular, she did not believe that he had been politically active as claimed, or that he had had a cache of weapons in the boot of his taxi when he crashed it. Nevertheless, she allowed his appeal on both asylum and human rights grounds on the basis that if he were to be returned to Iran, he would be detained and prosecuted for firing his gun into the air, and might then face a death sentence.

5. Permission to appeal was sought by the Secretary of State on a number of grounds. However, permission was granted limited to two grounds only, which may be summarised as follows:

1. The adjudicator erred in failing to identify a Refugee Convention reason when allowing the claimant's appeal on asylum grounds;
2. She erred in concluding that the claimant would be likely to suffer treatment contrary to Article 3 (prohibition of torture) of the European Convention on Human Rights on return to Iran.

6. At the start of the hearing, Mr Parker, who appeared for the Secretary of State, sought permission under rule 20(1) of the Immigration and Asylum Appeals (Procedure) Rules 2003 to amend his grounds of appeal in order to raise two further points, namely:

1. The adjudicator erred in law by finding that the appellant would be at risk of execution for firing a shot into the air as she did not consider whether in practice such a punishment would be enforced for that crime;
2. She erred in law by refusing to allow the presenting officer (not Mr Parker) who appeared before her on behalf of the Secretary of State to cross-examine the claimant when he gave oral evidence.

7. Mr Kerr, who appeared for the claimant, opposed the application. He argued that the Secretary of State had given no reason for his failure to raise these points in his original grounds of appeal. In addition, he had not been given any notice of the application. The second amendment raised a point which was an obvious one, and accordingly there was no reason for the Secretary of State not to have pleaded it before. He submitted that it altered the complexion of the appeal to such an extent that the claimant would be prejudiced by it. It amounted to an ambush, and should not be allowed.

8. We were not persuaded by Mr Parker's arguments in relation to the first amendment which he sought to make. However, the second amendment was one which we were prepared to allow. We therefore made our ruling to that effect. At that stage, both representatives acknowledged that, in consequence of that amendment, the appeal would inevitably have to be remitted for rehearing by another adjudicator. They were right to do so.

9. The basis on which the second amendment was made is to be found in paragraphs 6 and 7 of the adjudicator's determination which read as follows:

"6. The Home Office representative, Mrs Greene, wished to cross-examine the appellant but I refused leave for her to do so. I formed the view that she was a very thorough cross-examiner and that of course is to her credit however, in [sic] this occasion such a formal cross-examination is totally unsuitable and could have led to further deterioration of the appellant's mental state. I have also borne in mind that he had twice been interviewed and further had twice been interviewed by two eminent doctors.

7. At the hearing the appellant adopted his screening interview and further statements as correct and true and I heard submissions from both parties. Ms Greene relied on the letter of refusal. Evidence had not been tested in cross-examination. She pointed out that Dr Oakes had said he was alert and fully orientated, furthermore the story he told was an incredible one. The fact that his brother had ILR [indefinite leave to remain] did not mean that this applied to the appellant and she referred me to the CIPU [Country Information and Policy Unit] document and various case laws [sic] that she has submitted stressing that attendance at demonstrations does not form the basis for political refugee status".

10. It is not in dispute that the adjudicator allowed the claimant to give evidence in chief, but then refused to allow the presenting officer to cross-examine him for the reasons set out above. With respect to this experienced adjudicator, we are bound to say that in so doing, she manifestly allowed herself to fall seriously into error. We find it difficult to conceive of any circumstances in which it would be proper for an adjudicator to allow one party to call a witness who was allowed to give oral evidence in chief, and then deny the opposing party an opportunity to submit the witness to proper cross-examination. If such cross-examination were to be conducted in an oppressive or improper manner, it would of course be open to the adjudicator to intervene in order to protect the witness from unfair treatment of that nature. However, it cannot be right in principle that either party should be denied the opportunity to subject the oral evidence of witnesses called on behalf of the opposing party to proper cross-examination.

11. In refusing the presenting officer leave to cross-examine the claimant, the adjudicator committed such a grave error of procedure, which appears on the face of the record, that it clearly amounts to a material error of law on her part. Her error is compounded by the fact that, even without the benefit of cross-examination, she rejected most (but not all) of the claimant’s evidence. We also note from the appeal file that the claimant was in a fit state to give instructions to his legal representatives on the day of the hearing which then enabled them to prepare a four-page additional statement on his behalf.

12. In the circumstances, the adjudicator's determination plainly cannot be allowed to stand. As both representatives before us were right to acknowledge, we are left with no alternative state to remit this appeal for rehearing by another adjudicator.

13. This appeal is therefore allowed to the limited extent that it is remitted for rehearing by an adjudicator other than Mrs P H Drummond Farrall.

Signed Dated

L V Waumsley
Vice President

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