The decision


Heard at: Field House

On: 1 July 2004

OI (Late reliance on fresh evidence) Somalia [2004] UKIAT 00196


Corrected transcript of decision given at hearing
Signed: 06.07.2004
Issued: 16/07/2004


Mr JG Freeman (vice-president)
Mrs L H S Verity (legal member)
Mr N Kumar JP




Secretary of State for the Home Department



For the appellant: Mr S Muquit, counsel instructed by Freemans
For the respondent: Mr DS Saville


This is an appeal against the decision of an adjudicator, Mr Charles Vaudin d'Imecourt, in which he dismissed, on asylum and human rights grounds, an appeal by someone who claimed to be a citizen of Somalia. The first issue in the case is not whether the appellant was a Somali; but whether he was from Somalia or not. If not there was no basis for accepting his individual history. There was a further issue as to whether he was in fact, as the adjudicator found, from Ethiopia.

2. Permission was given by Judge Huskinson VP, in the following terms:

1. At the end of paragraph 31 of the determination the adjudicator states that having considered the claimant's evidence he was simply not satisfied that he was a Somali national from Somalia. In the immediately following text in paragraph 32 the adjudicator states this:

“It is for the appellant, albeit to the low standard mentioned above, to prove his case. On the facts before me in the present case I found that this appellant has failed to discharge the burden on him and failed to prove his case.'

2. The reference to the 'low standard mentioned above' is a reference to paragraph 22 where the correct low standard is set out.

(and here we have inserted letters for clarity in what follows)

(a) In view of the foregoing there may well be no substance in the claimant's contention in the grounds of appeal that the wrong standard of proof, namely 'a balance of probabilities' has been or may have been applied by the adjudicator on the question of nationality. This contention is advanced by reason of the concluding words in paragraph 35. However the point is (just) reasonably arguable and permission is granted to argue it.
(b) Permission is also granted to argue the question of what, if any significance there is (so far as concerns the claimant's nationality) in the fact that he appears to have been interviewed in the Somali language and to have given evidence through a Somali interpreter.

3. Mr Muquit's application, which was admirably concise, raised point (a) only; and point (b) appears to have arisen from the fact that the vice-president who gave permission was not fully aware that the issue was not on this appellant's ethnic, but his national origins. Mr Muquit rightly concedes that the positive finding that the appellant was from Ethiopia, which appears at paragraph 35 of the adjudicator's decision, was made to the correct standard of proof for positive findings against an appellant (balance of probabilities) as set out by the Tribunal (Collins P presiding) in Hamza [2002] UKIAT 05185*; and at paragraph 32 the adjudicator applies to the findings which he makes at paragraph 31 the lower standard of proof mentioned in Kaja [1995] IAR 1, to which he refers at paragraph 22. This, as is well known, is to a reasonable likelihood only.

4. Mr Muquit's case is based on the application of that standard by the adjudicator to the facts of the case before him. The adjudicator dealt with these at some length at paragraph 31, in terms both of the appellant's individual history and of what might be called Somali ethnography. Having done so, he expressed his conclusion in the following words:

I was inexorably led to believe that this appellant was not a Somali from Somalia and not a Somali national.

The adjudicator then went on,

I also noted that he based his claim to be a Somali national on the fact that the lady he called and he said that she was his mother had been accepted as a Somali national. I note that at the time the Secretary of State had given the witness leave to remain in the United Kingdom he had done so on the basis of the civil war in Somalia. He had not granted her indefinite leave to remain on the basis of the Refugee Convention. There is no indication that any in depth consideration had been given to her claim. In any event I am not concerned with the witness’s status but with this appellant's status. Having considered his evidence in this case I was simply not satisfied that he was a Somali national from Somalia.

5. At paragraph 33, on the human rights claim, the adjudicator dealt specifically with what might be called the family evidence as follows:

After considering the evidence given by his witness and himself with regard to family details such as the name of the appellant's husband and the name of the appellant's father the fact that the appellant claimed that his mother had a sister with two children living in the United Kingdom and that the witness said that she did not have any sisters living in the United Kingdom and that her only sister did not have any children, the fact that the appellant had claimed that his mother had no brothers and yet the witness said she had a brother living in Ethiopia, I found that there was no family relationship between this witness and the woman he called to give evidence on his behalf.

6. Mr Muquit now seeks to challenge that finding of fact, with reference to a DNA test report dealing with the claimed relationship between the appellant and the lady he put forward as his mother. It will help if we give the timescale of the various events in this case. Permission to appeal was notified to the appellant's solicitors on 7 January this year. They obtained the DNA results on or about 23 April. The first step taken by the solicitors to notify the Home Office or the Tribunal that they were seeking to rely on them was taken on Friday 18 June when the DNA report was served, as one item in a general bundle of evidence to be relied on at the hearing of the appeal. That did not reach the presenting officers' unit or the Tribunal until 23 June, only eight days before the hearing.

7. The notice of hearing which accompanied the grant of permission to appeal contained the following directions:

You must no later than 14 days before the hearing serve on all other parties and in triplicate on the Tribunal a full paginated bundle containing all the documents on which you ask the Tribunal to rely …

8. The first step Mr Muquit needs to take is to get leave to vary his grounds of appeal. This is dealt with at rule 20 of the 2003 Procedure Rules:

(1) A party may vary his grounds of appeal only with permission of the Tribunal.
(2) Where the Tribunal has refused permission to appeal on any ground it must not grant permission to vary the grounds of appeal to include that ground unless it is satisfied that because of special circumstances it will be unjust not to allow the variation.

9. The second step, relating to fresh evidence, is set out in rule 21:

(2) If a party wishes to ask the Tribunal to consider evidence which was not submitted to the adjudicator he must file with the Appellate Authority and serve on the other party written notice to that effect which must,

(a) indicate the nature of the evidence; and
(b) explain why it was not submitted to the adjudicator.

(3) A notice under paragraph 2 must be filed and served as soon as practicable after the parties have been notified that permission to appeal has been granted.

10. There is no draft before us of any amendment to the grounds of appeal, or of any written notification of intention to rely on additional evidence. No doubt that could have easily been rectified by Mr Muquit but the question is whether at this stage he ought to be allowed to amend his grounds of appeal, or to rely on further evidence at all. The crucial word in the rules which we have read out is “unjust”: essentially we need to be satisfied that it would be unjust not both to allow the amendment proposed to the grounds of appeal, and the admission of the further evidence on which it is based.

11. The evidence is relevant to an issue on which the adjudicator found against the appellant, because it shows a very high degree of probability that the lady put forward as his mother was related to him in that way. However, as the adjudicator himself pointed out at paragraph 31, in the passage which we have read, that is not the whole story, because he took the view that there had not been what he called any in depth consideration of the mother's claim to be a Somali national. It seems that, at the time she arrived and made her claim, exceptional leave was given to those who appeared to fall into that category, and that is what happened in her case.

12. The other point, for which we have had no explanation at all, is why this evidence, or even notice of intention to rely on it, in terms of an amendment to the grounds of appeal or otherwise, was not served, despite the warning in the notice of hearing in January, until two months after the evidence was obtained, and only eight days before the hearing. In our view to seek to introduce fresh evidence at a second appellate stage in that way is a serious abuse of the appellate procedure. While what is put forward here is relevant and probative, it is not crucial because of the adjudicator's reservations at paragraph 21, to which we have referred.

13. In our view it would not only not be unjust to allow the amendment and the fresh evidence, but it would be an interference with the proper administration of justice were we to do so after an application made at this stage. To do so would be an invitation to all those advising claimants, not only to seek to produce fresh evidence at this second appellate stage, but to spring it on the Home Office, without anything to draw their attention to its importance, at a very late stage before this second appellate hearing.

14. We have already set out in some detail the nature of the grounds of appeal and the basis on which permission to appeal was granted. Having refused to admit, for the reasons we have just given, the DNA evidence, we invited Mr Muquit to continue his submissions on the grant of permission in the terms in which it stands. Mr Muquit sought to rely on a number of detailed points relating to the adjudicator's findings at paragraph 31 of his decision.

15. In particular Mr Muquit suggested that the background evidence, again not served until the bundle which arrived on 23 June, suggested that lack of knowledge of sub-clans might not be of any particular significance for the Benadiri. He also relied on the adjudicator's distinction between the appellant's claimed mother's stating of the language of the Reer Hamar as "Af-Hamar" when in fact it was "Af-Reer Hamar". That may possibly be a somewhat fine distinction; but it must at best questionably amount to an error of law.

16. There was, however, no indication in the grounds of appeal or the grant of permission that anything other than the point of law already set out, as to the terms on which the adjudicator made his decision on the appellant's background and history was being challenged, and in our judgment that is the only issue before us. Mr Muquit seeks to suggest that the issues he sought to bring in before us as to the adjudicator's detailed findings suggested that in fact the adjudicator was applying a more exacting standard. We see no warrant for that at all: the adjudicator very clearly applied the right standard at paragraph 32.

17. There was a further submission by Mr Muquit that, because the adjudicator was dealing at paragraph 31, not only with the appellant's individual history but with his national origins, that in some way imported an inappropriate standard of proof. We disagree: the adjudicator made a clear distinction between the negative finding of nationality at paragraph 31, on which he correctly said at paragraph 32 that the lower standard applied; and the positive finding of Ethiopian nationality at paragraph 35, where, again correctly, he said that the higher standard of balance of probabilities applied.

18. We see nothing in the challenges which have been made to the adjudicator's decision and the appeal is dismissed.

John Freeman

(approved for electronic distribution)