[2006] UKAIT 81
- Case title: HK (Interviewer as advocate: unfair?)
- Appellant name: HK
- Status of case: Reported
- Hearing date:
- Promulgation date:
- Publication date:
- Last updated on:
- Country: Ethiopia
- Judges: Mr J Perkins, Mr G Warr, Mr Hon Justice Hodge
- Keywords Interviewer as advocate: unfair?
The decision
HK (Interviewer as advocate: unfair?) Ethiopia [2006] UKAIT 00081
ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION ACTS
Heard at Field House Determination Promulgated:
On 28 September 2006 On 17 October 2006
Before
Mr Justice Hodge OBE, President
Senior Immigration Judge Warr
Senior Immigration Judge Perkins
Between
HK
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Christopher Jacobs instructed by White Ryland
For the Respondent: Mr Robin Tam instructed by the Treasury Solicitor
There is no overarching prohibition on advocates acting as witnesses, nor any statutory prohibition on HOPOs doing so. Where the respondent’s interviewing officer appears as advocate on an appeal there is no procedural unfairness as such. But in the rare case where the interviewing officer is required to give evidence it may be inappropriate for that person to present the case.
DETERMINATION AND REASONS
1. The Appellant was born on 6 March 1979 and is a citizen of Ethiopia. She came to the United Kingdom using her own passport on 11 June 2005. She had entry clearance as a fiancée. Her child Luke Master K born on 11 September 2005 in the UK. The Appellant claimed asylum on 21 November 2005. Her son’s status falls to be determined with hers.
2. The Respondent refused the Appellant’s asylum claim. Her claims under the European Convention of Human Rights were also refused. The reasons were set out in a letter from the Respondent to the Appellant on 13 December 2005. She appealed against those decisions.
3. The Appellant’s appeal was heard on 10 February 2006 in Manchester by Immigration Judge Martin. The appeal was dismissed on both asylum grounds and human rights grounds in a determination dated 13 February 2006.
4. The Appellant applied for a reconsideration of that determination. A Senior Immigration Judge ordered a reconsideration on 2 March 2006. The matter first came on for hearing on 25 July 2006 and the Tribunal adjourned the hearing. The Tribunal wished to hear full argument on the appropriateness or otherwise of appeals being presented on behalf of the Respondent by the same person who conducted the initial Home Office interview of the Appellant.
The Issues in this Reconsideration
5. There are three issues which are before the Tribunal. They may be summarised as follows:
(a) Was the hearing procedurally unfair to the Appellant as the Home Office official who had conducted the substantive asylum interview of the Appellant also presented the Secretary of State’s case at the hearing.
(b) Did the Immigration Judge err by considering the Appellant’s human rights at all given that this is a variation appeal and there are no removal directions in place.
(c) Did the Immigration Judge erred in relying on the country guidance case HB (Ethiopia EDP/UEDP members) Ethiopia CG [2004] UKIAT 00235.
6. The first ground raises important issues of principle and was the main focus of argument in this reconsideration hearing.
Procedural Unfairness
7. Those seeking asylum in the United Kingdom are interviewed by representatives of the Respondent, generally in considerable detail. In this case the Appellant was interviewed on 6 December 2005 by a Home Office official. Acting on behalf of the Respondent and no doubt having considered the application in detail that official refused the claim and wrote and signed the reasons for refusal letter dated 13 December 2005. When the appeal came on for hearing on 6 February 2006 the official who had interviewed, presented the case on behalf of the Respondent appearing as the Home Office Presenting Officer (HOPO).
8. This process of an Interviewing Officer, then acting as the HOPO, is said by the Respondent to have happened periodically in the past. Further under the Asylum and Immigration Tribunal (Fast Track Procedure) Rules 2005 (SI 2005 No. 560) persons who are detained in immigration removal centres and who have appealed against an adverse asylum decision have their appeals considered very speedily. This process is known as the fast track procedure. This Tribunal must list appeals to which these Rules apply not later than two days after the relevant documents are filed with this Tribunal (see Rule 11(1)). It is routine that the Interviewing Officer in fast track cases also appears as the HOPO before the Immigration Judge at the hearing of the appeal. The Respondent’s New Asylum Model procedures envisage the process of the Interviewing Officer appearing as HOPO to present the case as extending, subject no doubt to resources, to asylum claims other than those in the fast track. This is the first occasion, so far as the Tribunal is aware, on which the procedural fairness of this process has been challenged.
The Appellant’s Case on Procedural Unfairness
9. As the Presenting Officer had conducted the asylum interview with the applicant the record of that interview constituted the Presenting Officer’s own evidence of what had occurred. It was said there was a clear factual dispute as to what had happened in the interview. The Appellant attributed an error in translation of the name of her political party to the Home Officer interpreter. It was said the Immigration Judge attached significant weight to this error and rejected the Appellant’s claim to belong to this opposition group solely on this basis.
10. As the Presenting Officer was a witness it was said to be procedurally unfair to allow her to present the case in this manner. Such a practice is contrary to the principles of natural justice and prejudicial to appellants. It runs counter to the Bar's Code of Conduct and the Solicitor’s Professional Conduct Rules.
11. It is also suggested that appellants will perceive an appearance of prejudicial procedural irregularity if this procedure is followed. The parties to the appeal cannot be on an equal footing in such circumstances. A Tribunal cannot deal with such a case justly. The practice does not comply with the overriding objective of ensuring the proceeding before the Tribunal are handled as “fairly, quickly and efficiently as possible”.
The Respondent’s Case on Procedural Unfairness
12. The Respondent says the HOPO was not a material witness in any event. Even had she been the Respondent says there are no rules which prohibits any HOPO who is a material witness to a matter in dispute in an appeal from presenting the Secretary of State’s case at an appeal hearing. In particular there is no express prohibition or any rule of law to this effect. No such rule is referred to in the Codes of Conduct of the legal professions. In any event witnesses regularly act as advocates particularly litigants in person. The Secretary of State is entitled to choose who he wishes to represent him. There is, says the Respondent, nothing in this aspect of this claim.
The Advocate as Witness – Procedural Unfairness
13. The Tribunal was not referred to any rule of law or any authority of general application which sets out a prohibition on a person who is a material witness from also acting as an advocate. The Codes of Conduct which apply to both barristers and solicitors severely limit the circumstances in which advocates may appear as witnesses in cases conducted by them. The maintenance of professional independence, the potential prejudice to the administration of justice and the general duties of advocates to the court all provide reasons for this position.
14. Paragraph 603 of the Code of Conduct for barristers provides:
“A barrister must not accept any instruction if to do so would cause him to be professionally embarrassed and for this purpose a barrister will be professionally embarrassed:
…
(d) if the matter is one in which he has reason to believe that he is likely to be a witness”
15. Further paragraph 608 provides:
“A barrister must cease to act and if he is a self-employed barrister must return any instructions:
(a) if continuing to act would cause him to be professionally embarrassed within the meaning of paragraph 603 provided that if he would be professionally embarrassed only because it appears to him that he is likely to be a witness on a material question of fact he may retire or withdraw only if he can do so without jeopardising the client’s interest.”
16. The Law Society Guide to the Professional Conduct of Solicitors provides:
“21.12 Solicitor called as Witness
A solicitor must not accept instruction to act as advocate for a client if it is clear that he or she or a member of the firm will be called as a witness on behalf of the client, unless the evidence is purely formal.
1. A solicitor must exercise judgment as to whether to cease acting where he or she:
(a) has already accepted instructions as advocate and then becomes aware that he or she or a member of the firm will be called as a witness on behalf of the client; or
(b) is instructed to act as litigator and knows that he or she must give evidence.
2. The circumstances in which a solicitor should continue to act as advocate, or as a litigator must be extremely rare where it is likely that he or she would be called to give evidence other than that which is purely formal. Factors to be taken into consideration include whether giving the evidence will create a conflict of interest between the solicitor and the client, or whether the solicitor’s duty to the court is likely to be impaired. See practice rule 1 p.1.
3. It may be possible for a solicitor to continue to act as an advocate if a member of the firm will be called to give evidence as to events witnessed whilst advising or assisting a client, for example at a police station or an identification parade. In exercising judgment, the solicitor should consider the nature of the evidence to be given, its importance to the case overall and the difficulties faced by the client if the solicitor were to cease to act. The decision should be taken in the interests of justice as a whole and not solely in the interest of the client.”
17. For the Bar there is a strong prohibition on accepting instructions if the barrister is likely to be a witness. There are however circumstances where a barrister will have to continue to act notwithstanding that he is likely to be a witness. In those circumstances he may only withdraw “if he can do so without jeopardising the client’s interests”.
18. For solicitors the prohibition on accepting initial instructions for the client is slightly less strong. This must not be done if it is “clear” that the solicitor will be called as a witness on behalf of the client. There is in fact an exception where the evidence to be given is purely formal. There are however clearly circumstances where solicitors are permitted to continue to act as advocates even where the solicitor or a member of the solicitor’s firm may have to appear as a witness. If they continue to act solicitors must not impair their duty to the court or create a conflict of interest between themselves and their client. The interests of justice as a whole must be at the core of any decision.
19. There are it is clear two separate, different and detailed codes governing the conduct of the two branches of the legal profession in England and Wales as to the position of an advocate who may have to be a witness. Such codes would not be necessary, says the Respondent, if there were an absolute rule prohibiting a person from being both a witness and an advocate. We were referred to no authority which supported such a rule.
20. Indeed such a rule would make the position of a litigant in person impossible. A litigant in person will generally be a witness in their own case and will be likely to cross-examine opposing witnesses. Above all a litigant in person is an advocate in his or her own cause. Every individual litigant has a right to conduct his or her own case subject only to rare statutory prohibitions. There are no such prohibitions in immigration cases.
21. The Respondent relied on other examples to support the claim that there is no general prohibition on witnesses acting as advocates. Historically before the Police and Criminal Evidence Act 1984 police officers would routinely act as prosecutors and appear as both advocates and witnesses. Housing Associations use their own officers in the County Court to present possession proceedings in which they may also give evidence as witnesses. Private prosecutions by shops which employ private detectives were regularly conducted by those detectives also acting as witnesses.
22. We are satisfied that as a matter of law that there is no rule which prohibits an advocate in proceedings before this Tribunal also giving evidence as a witness.
Statutory Position of HOPOS
23. It is the Respondent’s position that the statutory provisions relating to the representation of the Secretary of State are inconsistent with the suggestion that a HOPO who is a material witness in a case cannot present the case on behalf of the Secretary of State.
24. The Respondent acknowledges that Section 84(1) Immigration and Asylum Act 1999 provides “no person may provide immigration advice or immigration services unless he is a qualified person”. However “immigration advice” and “immigration services” are defined by Section 82(1) of the 1999 Act by reference to advice and services provided on behalf of individuals. The restriction does not apply to those who act on behalf of the Secretary of State.
25. Further it is said, and we accept, that HOPOs are covered by Section 84(6) of the 1999 Act:
“Sub-Section (1) does not apply to a person
(a) wholly in office under the Crown, when acting in that capacity;
(b) employed by, or for the purposes of a government department when acting in that capacity;
(c) acting under the control of a government department; or
(d) otherwise exercising functions on behalf of the Crown.”
26. Rule 48(2) Asylum and Immigration Tribunal (Procedure) Rules 2005 provides:
“A respondent to an appeal, the Secretary of State or the United Kingdom representative may be represented by any person authorised to act on his behalf.”
There is nothing to say that the rules of the professional bodies controlling the conduct of barristers and solicitors apply to Home Office Presenting Officers. The Tribunal should not seek to influence or restrict the Secretary of State’s choice of representative unless, no doubt very exceptionally, he chooses to be represented by somebody who could not present the case justly. It is also clear that there is no statutory provision governing representation in this Tribunal that suggests any prohibition on a person who is a material witness in a case also acting as the Secretary of State’s advocate.
Interviewers as advocates
27. The Appellant contends that there is an inherent unfairness in a procedure which can lead to a Home Office interviewer becoming an advocate for the respondent in later proceedings. Appellants in asylum claims are vulnerable. They claim to be fleeing persecution. Home Office interviews are challenging and difficult. The Interviewing Officer is in opposition to the interests of the appellant. It is wrong it is said in these circumstances that a person who has been part of the decision-making process should present the case against the appellant before the Tribunal.
28. This submission misunderstands the function of the interview. The aim is to establish whether or not a person has a good claim to international protection by the United Kingdom because of events that have happened to the appellant in his or her country of origin. As a result of interviews, applicants can be granted asylum or humanitarian protection. It is not the function of the interviewer to direct questions to achieve the rejection of the claim.
29. But the Appellant argues that challenges to an interview may arise at any time during a hearing. Where that happens an individual appellant may perceive an appearance of the Interviewing Officer as advocate as prejudicial, unfair and in breach of the overriding objective of the Asylum and Immigration Tribunal (Procedure) Rules 2005 (SI 2005 No. 230).
“(4) The overriding objective of these rules is to secure that proceedings before the Tribunal are handled as fairly, quickly and efficiently as possible; and, where appropriate, that members of the Tribunal have the responsibility for ensuring this, in the interests of the parties to the proceedings and in the wider public interest.”
30. The Appellant supports this argument with an analogy with the Civil Procedure Rules which provides that the overriding objective “of enabling the court to deal with cases justly” is to ensure “that the parties are on an equal footing” (CPR Rule 1(1)(a)). It is argued that the parties cannot be on an equal footing where one party is both interviewer and advocate.
31. It is clear that there have been and, unless prohibited, will continue to be cases where an Interviewing Officer on behalf of the respondent can expect to appear as an advocate before this Tribunal in cases where a person’s claim to asylum is refused by the respondent and that person thereafter appeals. It is also clear that the eventual appellant is always likely to have to give evidence about what was said at the interview. There are routine challenges in this field to differences between appellant's statements made in writing or orally at various times during the processes leading up to the eventual Tribunal hearing. Most appellants appearing before the AIT do give evidence. Many are represented, some represent themselves.
32. The questioning, the cross-examination and the submissions made in relation to what was said at an interview are generally compared and contrasted by the respondent with other things said and done by the appellant. The appellant generally contends that the whole of what has been said or done is coherent or can be properly explained as a result of exterior factors.
33. It is on the other hand rare for an Interviewing Officer to give evidence before the Tribunal. In the Tribunal’s judgment it will be clear in the majority of asylum claims that the Interviewing Officer will neither be required to nor needed to give evidence about the contents of the interview or what happened during the interview process itself. In those circumstances we see no objection to the Interviewing Officer acting as Presenting Officer. There is no common law prohibition on advocates acting as witnesses and the statutory position of Home Office Presenting Officers contains no such prohibition either.
34. There may be cases where the appellant is particularly vulnerable because of disability or some other factor. That might lead to the Secretary of State deciding that it is unwise for the interviewing officer to present the case. But such a decision is entirely a matter for him to be taken on a case by case basis.
Challenges to Interviews
35. The will however be cases where the conduct of the interview is called in question or what happened during the course of the interview gives rise to challenge. When that happens it will be important for the Secretary of State to decide whether or not evidence of what happened is required to be given on his behalf. Will it be necessary to call the interviewer?
36. Most challenges to what actually happened at interviews arise around challenges to the interpretation process. That, as will be seen, occurred in this case. Such challenges are not in themselves enough to disqualify the Interviewing Officer acting as Presenting Officer. The assertion that the interpreter mistranslated something can clearly be made by an appellant. But the interviewer will be unlikely to be able to give evidence about the alleged mistranslation unless he or she knows the language involved.
37. There may be rare cases in which it is alleged that the interview has been conducted in a wholly inappropriate manner with allegations of hectoring, bullying or the like. Such an allegation should be made promptly by anyone asserting such conduct. It will be for the respondent to decide if the allegation needs to be dealt with by formal evidence. As a party he is responsible for deciding what matters are put on his behalf before the Tribunal.
38. Challenges of this sort are likely to be personal attacks on the integrity of the interviewer and what took place. Where the respondent accepts that the allegation will need to be dealt with by evidence from the Interviewing Officer it will be wise for that officer not to appear as an advocate. Indeed it might be unfair for such an interviewer to represent. It is foreseeable, for instance, that the tendency for animosity could be so strong that the immigration judge might well have to intervene and stop the hearing or insist that the respondent was separately represented or stop points being put to a witness.
39. There may be cases where similar allegations are raised for the first time at a Tribunal hearing. It is likely to be a matter for comment that the issue was not raised previously. But it will be for the Judge to decide how to proceed. Applications for adjournments at what will be a very late stage will need to be considered having regard to the overriding objective. It may be appropriate to suggest to the Presenting Officer that he or she might wish to give evidence on the issue rather than deal with the position solely in submissions. Whether such evidence is given or not will be the decision of the interviewer/advocate. But the judge must control the proceedings.
The Disputed Interview
40. It is the Appellant’s case that there was a clear factual dispute as to what happened at the interview in that the applicant had attributed an error in the translation in the name of her political party to the Home Office interpreter. It is further said that the Immigration Judge attributed significant weight to this error and that she rejected the Appellant’s claim to belong to the particular opposition group solely on this basis. We set out below the relevant parts of the interview record, the Immigration Judge’s Record of Proceedings and the Immigration Judge’s decision.
The interview record showed the following questions and answers:-
‘9. Name of party you were a member of?
All Ethiopian People’s Organisation
(literal translation – int said)
Applicant looks in her paperwork for something can’t find anything. Now looks on mobile for correct abbreviation.
10. What are you checking for?
It is recorded in my message section of my mobile.
11. What is recorded?
The correct name of the organisation. What I told you in Amharic is the correct one. I was just trying to find out in English.
12. Why did you need to check you mobile for the name of party? If you were truly a member you would know this?
I know it in Amharic which we normally use it, but I don’t know in English which I was trying to find from my mobile.
13. When did you join the All Ethiopian People Org?
2 years ago
14. Correct abbreviation for this party?
EDHP.’
At the end of the interview, the following was recorded:-
‘Are you still feeling fit and well?
Yes, not bad.
Have you understood all of the questions put to you today?
Yes.
Have you understood the Home Office interpreter?
Yes.’
The Immigration Judge’s record of proceedings showed:-
‘Confirm name of political[?]
CUD – The All Ethiopian Unity Party
How long a member
2 years
More precise – year
Can’t remember now
Said joined 2 yrs ago At int said November 2003 can u explain discrepancy
My head is not right because of the child. I can’t think properly
If u had concerns re int y not raise these during int
I don’t know it in Eng. I know it is Amharic.
U said u don’t know it in Eng – just have – explain
I received my id this week thru[?] HL it was with my mother – at int I said I had one
…
U said the reasons for discrepancy was problems at int + didn’t know in Eng. U said received card [?] from mother. Is it true didn’t know name of party til had card [?] in front of u
I said it in Amharic but Intr made a mistake translating
U were represented – y not ask Representative to write into us about interpreter mistakes
I told them.’
The Immigration Judge in her determination referred to this evidence as follows:-
’18. The Appellant attended her substantive SEP interview with Miss Barnes, the Home Office Presenting Officer presenting the case on 6th December 2005. She claimed to fear the government because she was a member of a different party than that which she now claims membership of. She was asked the name of the party. She replied (question 9):- “All Ethiopian People’s Organisation”. It is recorded in the record of interview and it is not disputed by the Appellant that she looked in her paperwork for something and then looked on her mobile phone. She was asked by the interviewer what she was doing and she answered:- “It is recorded in my message section of my mobile”. When asked what was recorded she said:- “The correct name of the organisation what I told you in Amharic is the correct one. Just trying to find out in English.” She was then asked why she needed to check the name of the party if she was a member of it and her response was:- “I know it in Amharic which we normally use, but I don’t know in English which I was trying to find from my mobile.” She claimed to have joined the group 2 years previously. She then stated that the correct abbreviation for the group was “EDHP”.
19. In the Letter of Refusal it was pointed out that there is no mention in the objective evidence anywhere of a party under the name of the All Ethiopian peoples Organisation or with the abbreviation of EDHP.
20. In her rebuttal statement, the Appellant stated that the Home Officer Interpreter was unsure how to translate the name of the party and that is how the error occurred. At the hearing she claimed to be a member of the CUD which does exist. She was asked during the hearing why she had given a different name for the party at her interview and she claimed again that the interpreter had got it wrong. However, it was pointed out that at no point during the interview [had] she raised any concerns about the quality of the interpretation. Despite being represented she did not lodge any complaint subsequently through her solicitors about the quality of interpretation’.”
41. As the Respondent points out in his skeleton argument the Appellant’s complaint at the interview was about the quality of the translation by the interpreter of her Amharic answers into English. There was no direct evidence other than the Appellant’s about what she said to the interpreter or what the interpreter said to her in Amharic. The Interviewing Officer was entirely dependent on the translation provided by the interpreter. She could not know herself whether the translation was of good or poor quality. The Interviewing Officer noted her observations in English and the answers given by the interpreter in English together with the observations about the Appellant’s actions. There was no challenge to any of this.
42. Further there was a lack of any complaint by the Appellant about the interpreter at the time of the interview. No positive complaint was made by her. As the record shows she was looking for the English name of the party in her phone. She said she had given the correct name in Amharic.
43. At the conclusion of the interview as quoted above she raised no concerns about not understanding the Home Officer interpreter. The Appellant took steps to challenge the interpretation of the name of her party after the interview in correspondence with the respondent. We do not accept that the HOPO was giving evidence when she cross-examined the Appellant at the hearing before the Immigration Judge. The Appellant was asked “if you had concerns regarding the interview why did you not raise these during the interview”. That is a question based on the absence of any challenge recorded in the interview notes. Any person in possession of the interview record could properly have asked the question.
44. The issue for the Appellant was whether she actually said to the interpreter what she claimed she said i.e. that she gave the correct name of the party she belonged to in Amharic but that she did not know it in English. She did however accept in interview that the correct name of the party was EDHP.
45. The Immigration Judge had to reach conclusions on this issue from a combination of the Appellant’s oral account given at the hearing for which there was no supportive documentary evidence and inferences drawn from the undisputed record of the interview recorded in English.
46. We note that the Immigration Judge recorded at paragraph 21 and 22 that the Appellant had only recently read the proper name of the party in English from her membership card which had been sent to her by her mother. The Appellant confirmed that she had read the English on her identity card and that she could read English. At paragraph 22 the Immigration Judge concluded:
“22. If an Appellant is sufficiently proficient in English to be able to read it as well as speak it it is not credible that she would not have known the English name of her party if she had indeed been a member of it for some two years. Furthermore, given her knowledge (she gave much of her evidence in English and answered questions in English) she would have been aware immediately of any interpreter problems during her interview and if there were I find would have mentioned that at the time.”
47. We conclude on the facts of this case that the Presenting Officer did not give evidence in the form of cross-examination of the Appellant or in the form of submissions before the Immigration Judge. The Judge reached her conclusions on the basis of what she had heard in evidence and the inferences she drew from that and the record of the interview.
Intimidation of the Appellant
48. It is further part of the Appellant’s case that she was prejudiced during the hearing because she was unable to distinguish whether questions reflected the Secretary of State’s position or the personal view of the interviewer. This is said to be wrong and unreasonable “for a witness in an asylum appeal to be placed in a position where she must embark on a personal argument with an advocate or accuse that advocate of misrepresenting the facts. Many asylum seekers may be intimidated in such circumstances”. There may be cases where a particularly vulnerable asylum claimant might feel intimidated by the questioning at the hearing by the same person who conducted the interview, we refer to that at paragraph 34 above. We saw no evidence in this case that this appellant might be considered vulnerable in the way suggested.
The Judge’s Conclusions
49. We reject the claim that there was procedural unfairness in this case for the reasons given above. The judge made no error of law in the way in which she conducted the case. She was not wrong to allow the interviewing officer to present the case as the HOPO.
50. We also regard her conclusions on the appellants asylum claim as entirely sustainable. She analysed the evidence and made clear findings. These were adverse to the appellant but they were not legally wrong.
Human Rights
51. A further ground of appeal is that the Immigration Judge should not have considered human rights in this appeal. She concluded that the articles 2 and 3 claims stood or fell with the asylum appeal. Any return of the claimant to Ethiopia would not breach either article given her findings on the asylum claim. She also concluded that there would be no breach of the Appellant’s article 8 rights if she were to be removed from the UK.
52. The Appellant says that the Immigration Judge erred in law by considering human rights which should not be considered in a variation appeal when there are no removal directions. The Appellant relies on the starred decision of JM (Human Rights unarguable) Liberia [2006] UKAIT 00009 which has in fact been overruled subsequent to the hearing of this case.
53. It is said that the Immigration Judge should not have considered human rights. However, we agree with the respondent’s submission on this matter. We find no error or law in the dismissal of the appeal on asylum. Such error of law, if any, as may have been made by the Judge in considering the human rights grounds was in fact immaterial. Had JM Liberia been followed the Immigration Judge would have dismissed the human rights appeal in any event as being premature. There is no material error of law in this finding by the Judge.
HB (Ethiopia EDP/UEDP Members) Ethiopia CG [2004] UKIAT 00235
54. The Immigration Judge in her determination places some reliance on the HB case. She indicated “that limited involvement by an Appellant such as attending meetings and paying contributions is not reasonably likely to result in an Appellant being monitored or identified and therefore not at risk”. HB refers to members of opposition groups activities outside of Ethiopia. However the Appellant’s claimed activities did take place in Ethiopia except that after she moved to Dubai she claimed to have worked and contributed money to the party every month. Overall the Immigration Judge gave a series of clear reasons for disbelieving the Appellant. They included her lack of knowledge of the names of the party she said she supported; she rejected the claim that the Appellant sent more than half of her income earned in Dubai to the political party in Ethiopia. She concluded the Appellant did not make financial contributions to a political party when working in Dubai. She also rejected the Appellant’s claim that her father had been detained and then released merely because his blood pressure was bad.
55. Her conclusions are in the Tribunal’s view entirely sustainable. For the reasons given above we do not regard that there has been any unfairness in the way she reached those decisions. Such error as there was in the misapplication of the case of HB was therefore not material.
Conclusion
56. We conclude that there was no material error of law in the Immigration Judge’s decision in this case. The decision by the Immigration Judge to dismiss the Appellant’s appeal therefore stands.
Mr Justice Hodge OBE
President
16 October 2006
ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION ACTS
Heard at Field House Determination Promulgated:
On 28 September 2006 On 17 October 2006
Before
Mr Justice Hodge OBE, President
Senior Immigration Judge Warr
Senior Immigration Judge Perkins
Between
HK
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Christopher Jacobs instructed by White Ryland
For the Respondent: Mr Robin Tam instructed by the Treasury Solicitor
There is no overarching prohibition on advocates acting as witnesses, nor any statutory prohibition on HOPOs doing so. Where the respondent’s interviewing officer appears as advocate on an appeal there is no procedural unfairness as such. But in the rare case where the interviewing officer is required to give evidence it may be inappropriate for that person to present the case.
DETERMINATION AND REASONS
1. The Appellant was born on 6 March 1979 and is a citizen of Ethiopia. She came to the United Kingdom using her own passport on 11 June 2005. She had entry clearance as a fiancée. Her child Luke Master K born on 11 September 2005 in the UK. The Appellant claimed asylum on 21 November 2005. Her son’s status falls to be determined with hers.
2. The Respondent refused the Appellant’s asylum claim. Her claims under the European Convention of Human Rights were also refused. The reasons were set out in a letter from the Respondent to the Appellant on 13 December 2005. She appealed against those decisions.
3. The Appellant’s appeal was heard on 10 February 2006 in Manchester by Immigration Judge Martin. The appeal was dismissed on both asylum grounds and human rights grounds in a determination dated 13 February 2006.
4. The Appellant applied for a reconsideration of that determination. A Senior Immigration Judge ordered a reconsideration on 2 March 2006. The matter first came on for hearing on 25 July 2006 and the Tribunal adjourned the hearing. The Tribunal wished to hear full argument on the appropriateness or otherwise of appeals being presented on behalf of the Respondent by the same person who conducted the initial Home Office interview of the Appellant.
The Issues in this Reconsideration
5. There are three issues which are before the Tribunal. They may be summarised as follows:
(a) Was the hearing procedurally unfair to the Appellant as the Home Office official who had conducted the substantive asylum interview of the Appellant also presented the Secretary of State’s case at the hearing.
(b) Did the Immigration Judge err by considering the Appellant’s human rights at all given that this is a variation appeal and there are no removal directions in place.
(c) Did the Immigration Judge erred in relying on the country guidance case HB (Ethiopia EDP/UEDP members) Ethiopia CG [2004] UKIAT 00235.
6. The first ground raises important issues of principle and was the main focus of argument in this reconsideration hearing.
Procedural Unfairness
7. Those seeking asylum in the United Kingdom are interviewed by representatives of the Respondent, generally in considerable detail. In this case the Appellant was interviewed on 6 December 2005 by a Home Office official. Acting on behalf of the Respondent and no doubt having considered the application in detail that official refused the claim and wrote and signed the reasons for refusal letter dated 13 December 2005. When the appeal came on for hearing on 6 February 2006 the official who had interviewed, presented the case on behalf of the Respondent appearing as the Home Office Presenting Officer (HOPO).
8. This process of an Interviewing Officer, then acting as the HOPO, is said by the Respondent to have happened periodically in the past. Further under the Asylum and Immigration Tribunal (Fast Track Procedure) Rules 2005 (SI 2005 No. 560) persons who are detained in immigration removal centres and who have appealed against an adverse asylum decision have their appeals considered very speedily. This process is known as the fast track procedure. This Tribunal must list appeals to which these Rules apply not later than two days after the relevant documents are filed with this Tribunal (see Rule 11(1)). It is routine that the Interviewing Officer in fast track cases also appears as the HOPO before the Immigration Judge at the hearing of the appeal. The Respondent’s New Asylum Model procedures envisage the process of the Interviewing Officer appearing as HOPO to present the case as extending, subject no doubt to resources, to asylum claims other than those in the fast track. This is the first occasion, so far as the Tribunal is aware, on which the procedural fairness of this process has been challenged.
The Appellant’s Case on Procedural Unfairness
9. As the Presenting Officer had conducted the asylum interview with the applicant the record of that interview constituted the Presenting Officer’s own evidence of what had occurred. It was said there was a clear factual dispute as to what had happened in the interview. The Appellant attributed an error in translation of the name of her political party to the Home Officer interpreter. It was said the Immigration Judge attached significant weight to this error and rejected the Appellant’s claim to belong to this opposition group solely on this basis.
10. As the Presenting Officer was a witness it was said to be procedurally unfair to allow her to present the case in this manner. Such a practice is contrary to the principles of natural justice and prejudicial to appellants. It runs counter to the Bar's Code of Conduct and the Solicitor’s Professional Conduct Rules.
11. It is also suggested that appellants will perceive an appearance of prejudicial procedural irregularity if this procedure is followed. The parties to the appeal cannot be on an equal footing in such circumstances. A Tribunal cannot deal with such a case justly. The practice does not comply with the overriding objective of ensuring the proceeding before the Tribunal are handled as “fairly, quickly and efficiently as possible”.
The Respondent’s Case on Procedural Unfairness
12. The Respondent says the HOPO was not a material witness in any event. Even had she been the Respondent says there are no rules which prohibits any HOPO who is a material witness to a matter in dispute in an appeal from presenting the Secretary of State’s case at an appeal hearing. In particular there is no express prohibition or any rule of law to this effect. No such rule is referred to in the Codes of Conduct of the legal professions. In any event witnesses regularly act as advocates particularly litigants in person. The Secretary of State is entitled to choose who he wishes to represent him. There is, says the Respondent, nothing in this aspect of this claim.
The Advocate as Witness – Procedural Unfairness
13. The Tribunal was not referred to any rule of law or any authority of general application which sets out a prohibition on a person who is a material witness from also acting as an advocate. The Codes of Conduct which apply to both barristers and solicitors severely limit the circumstances in which advocates may appear as witnesses in cases conducted by them. The maintenance of professional independence, the potential prejudice to the administration of justice and the general duties of advocates to the court all provide reasons for this position.
14. Paragraph 603 of the Code of Conduct for barristers provides:
“A barrister must not accept any instruction if to do so would cause him to be professionally embarrassed and for this purpose a barrister will be professionally embarrassed:
…
(d) if the matter is one in which he has reason to believe that he is likely to be a witness”
15. Further paragraph 608 provides:
“A barrister must cease to act and if he is a self-employed barrister must return any instructions:
(a) if continuing to act would cause him to be professionally embarrassed within the meaning of paragraph 603 provided that if he would be professionally embarrassed only because it appears to him that he is likely to be a witness on a material question of fact he may retire or withdraw only if he can do so without jeopardising the client’s interest.”
16. The Law Society Guide to the Professional Conduct of Solicitors provides:
“21.12 Solicitor called as Witness
A solicitor must not accept instruction to act as advocate for a client if it is clear that he or she or a member of the firm will be called as a witness on behalf of the client, unless the evidence is purely formal.
1. A solicitor must exercise judgment as to whether to cease acting where he or she:
(a) has already accepted instructions as advocate and then becomes aware that he or she or a member of the firm will be called as a witness on behalf of the client; or
(b) is instructed to act as litigator and knows that he or she must give evidence.
2. The circumstances in which a solicitor should continue to act as advocate, or as a litigator must be extremely rare where it is likely that he or she would be called to give evidence other than that which is purely formal. Factors to be taken into consideration include whether giving the evidence will create a conflict of interest between the solicitor and the client, or whether the solicitor’s duty to the court is likely to be impaired. See practice rule 1 p.1.
3. It may be possible for a solicitor to continue to act as an advocate if a member of the firm will be called to give evidence as to events witnessed whilst advising or assisting a client, for example at a police station or an identification parade. In exercising judgment, the solicitor should consider the nature of the evidence to be given, its importance to the case overall and the difficulties faced by the client if the solicitor were to cease to act. The decision should be taken in the interests of justice as a whole and not solely in the interest of the client.”
17. For the Bar there is a strong prohibition on accepting instructions if the barrister is likely to be a witness. There are however circumstances where a barrister will have to continue to act notwithstanding that he is likely to be a witness. In those circumstances he may only withdraw “if he can do so without jeopardising the client’s interests”.
18. For solicitors the prohibition on accepting initial instructions for the client is slightly less strong. This must not be done if it is “clear” that the solicitor will be called as a witness on behalf of the client. There is in fact an exception where the evidence to be given is purely formal. There are however clearly circumstances where solicitors are permitted to continue to act as advocates even where the solicitor or a member of the solicitor’s firm may have to appear as a witness. If they continue to act solicitors must not impair their duty to the court or create a conflict of interest between themselves and their client. The interests of justice as a whole must be at the core of any decision.
19. There are it is clear two separate, different and detailed codes governing the conduct of the two branches of the legal profession in England and Wales as to the position of an advocate who may have to be a witness. Such codes would not be necessary, says the Respondent, if there were an absolute rule prohibiting a person from being both a witness and an advocate. We were referred to no authority which supported such a rule.
20. Indeed such a rule would make the position of a litigant in person impossible. A litigant in person will generally be a witness in their own case and will be likely to cross-examine opposing witnesses. Above all a litigant in person is an advocate in his or her own cause. Every individual litigant has a right to conduct his or her own case subject only to rare statutory prohibitions. There are no such prohibitions in immigration cases.
21. The Respondent relied on other examples to support the claim that there is no general prohibition on witnesses acting as advocates. Historically before the Police and Criminal Evidence Act 1984 police officers would routinely act as prosecutors and appear as both advocates and witnesses. Housing Associations use their own officers in the County Court to present possession proceedings in which they may also give evidence as witnesses. Private prosecutions by shops which employ private detectives were regularly conducted by those detectives also acting as witnesses.
22. We are satisfied that as a matter of law that there is no rule which prohibits an advocate in proceedings before this Tribunal also giving evidence as a witness.
Statutory Position of HOPOS
23. It is the Respondent’s position that the statutory provisions relating to the representation of the Secretary of State are inconsistent with the suggestion that a HOPO who is a material witness in a case cannot present the case on behalf of the Secretary of State.
24. The Respondent acknowledges that Section 84(1) Immigration and Asylum Act 1999 provides “no person may provide immigration advice or immigration services unless he is a qualified person”. However “immigration advice” and “immigration services” are defined by Section 82(1) of the 1999 Act by reference to advice and services provided on behalf of individuals. The restriction does not apply to those who act on behalf of the Secretary of State.
25. Further it is said, and we accept, that HOPOs are covered by Section 84(6) of the 1999 Act:
“Sub-Section (1) does not apply to a person
(a) wholly in office under the Crown, when acting in that capacity;
(b) employed by, or for the purposes of a government department when acting in that capacity;
(c) acting under the control of a government department; or
(d) otherwise exercising functions on behalf of the Crown.”
26. Rule 48(2) Asylum and Immigration Tribunal (Procedure) Rules 2005 provides:
“A respondent to an appeal, the Secretary of State or the United Kingdom representative may be represented by any person authorised to act on his behalf.”
There is nothing to say that the rules of the professional bodies controlling the conduct of barristers and solicitors apply to Home Office Presenting Officers. The Tribunal should not seek to influence or restrict the Secretary of State’s choice of representative unless, no doubt very exceptionally, he chooses to be represented by somebody who could not present the case justly. It is also clear that there is no statutory provision governing representation in this Tribunal that suggests any prohibition on a person who is a material witness in a case also acting as the Secretary of State’s advocate.
Interviewers as advocates
27. The Appellant contends that there is an inherent unfairness in a procedure which can lead to a Home Office interviewer becoming an advocate for the respondent in later proceedings. Appellants in asylum claims are vulnerable. They claim to be fleeing persecution. Home Office interviews are challenging and difficult. The Interviewing Officer is in opposition to the interests of the appellant. It is wrong it is said in these circumstances that a person who has been part of the decision-making process should present the case against the appellant before the Tribunal.
28. This submission misunderstands the function of the interview. The aim is to establish whether or not a person has a good claim to international protection by the United Kingdom because of events that have happened to the appellant in his or her country of origin. As a result of interviews, applicants can be granted asylum or humanitarian protection. It is not the function of the interviewer to direct questions to achieve the rejection of the claim.
29. But the Appellant argues that challenges to an interview may arise at any time during a hearing. Where that happens an individual appellant may perceive an appearance of the Interviewing Officer as advocate as prejudicial, unfair and in breach of the overriding objective of the Asylum and Immigration Tribunal (Procedure) Rules 2005 (SI 2005 No. 230).
“(4) The overriding objective of these rules is to secure that proceedings before the Tribunal are handled as fairly, quickly and efficiently as possible; and, where appropriate, that members of the Tribunal have the responsibility for ensuring this, in the interests of the parties to the proceedings and in the wider public interest.”
30. The Appellant supports this argument with an analogy with the Civil Procedure Rules which provides that the overriding objective “of enabling the court to deal with cases justly” is to ensure “that the parties are on an equal footing” (CPR Rule 1(1)(a)). It is argued that the parties cannot be on an equal footing where one party is both interviewer and advocate.
31. It is clear that there have been and, unless prohibited, will continue to be cases where an Interviewing Officer on behalf of the respondent can expect to appear as an advocate before this Tribunal in cases where a person’s claim to asylum is refused by the respondent and that person thereafter appeals. It is also clear that the eventual appellant is always likely to have to give evidence about what was said at the interview. There are routine challenges in this field to differences between appellant's statements made in writing or orally at various times during the processes leading up to the eventual Tribunal hearing. Most appellants appearing before the AIT do give evidence. Many are represented, some represent themselves.
32. The questioning, the cross-examination and the submissions made in relation to what was said at an interview are generally compared and contrasted by the respondent with other things said and done by the appellant. The appellant generally contends that the whole of what has been said or done is coherent or can be properly explained as a result of exterior factors.
33. It is on the other hand rare for an Interviewing Officer to give evidence before the Tribunal. In the Tribunal’s judgment it will be clear in the majority of asylum claims that the Interviewing Officer will neither be required to nor needed to give evidence about the contents of the interview or what happened during the interview process itself. In those circumstances we see no objection to the Interviewing Officer acting as Presenting Officer. There is no common law prohibition on advocates acting as witnesses and the statutory position of Home Office Presenting Officers contains no such prohibition either.
34. There may be cases where the appellant is particularly vulnerable because of disability or some other factor. That might lead to the Secretary of State deciding that it is unwise for the interviewing officer to present the case. But such a decision is entirely a matter for him to be taken on a case by case basis.
Challenges to Interviews
35. The will however be cases where the conduct of the interview is called in question or what happened during the course of the interview gives rise to challenge. When that happens it will be important for the Secretary of State to decide whether or not evidence of what happened is required to be given on his behalf. Will it be necessary to call the interviewer?
36. Most challenges to what actually happened at interviews arise around challenges to the interpretation process. That, as will be seen, occurred in this case. Such challenges are not in themselves enough to disqualify the Interviewing Officer acting as Presenting Officer. The assertion that the interpreter mistranslated something can clearly be made by an appellant. But the interviewer will be unlikely to be able to give evidence about the alleged mistranslation unless he or she knows the language involved.
37. There may be rare cases in which it is alleged that the interview has been conducted in a wholly inappropriate manner with allegations of hectoring, bullying or the like. Such an allegation should be made promptly by anyone asserting such conduct. It will be for the respondent to decide if the allegation needs to be dealt with by formal evidence. As a party he is responsible for deciding what matters are put on his behalf before the Tribunal.
38. Challenges of this sort are likely to be personal attacks on the integrity of the interviewer and what took place. Where the respondent accepts that the allegation will need to be dealt with by evidence from the Interviewing Officer it will be wise for that officer not to appear as an advocate. Indeed it might be unfair for such an interviewer to represent. It is foreseeable, for instance, that the tendency for animosity could be so strong that the immigration judge might well have to intervene and stop the hearing or insist that the respondent was separately represented or stop points being put to a witness.
39. There may be cases where similar allegations are raised for the first time at a Tribunal hearing. It is likely to be a matter for comment that the issue was not raised previously. But it will be for the Judge to decide how to proceed. Applications for adjournments at what will be a very late stage will need to be considered having regard to the overriding objective. It may be appropriate to suggest to the Presenting Officer that he or she might wish to give evidence on the issue rather than deal with the position solely in submissions. Whether such evidence is given or not will be the decision of the interviewer/advocate. But the judge must control the proceedings.
The Disputed Interview
40. It is the Appellant’s case that there was a clear factual dispute as to what happened at the interview in that the applicant had attributed an error in the translation in the name of her political party to the Home Office interpreter. It is further said that the Immigration Judge attributed significant weight to this error and that she rejected the Appellant’s claim to belong to the particular opposition group solely on this basis. We set out below the relevant parts of the interview record, the Immigration Judge’s Record of Proceedings and the Immigration Judge’s decision.
The interview record showed the following questions and answers:-
‘9. Name of party you were a member of?
All Ethiopian People’s Organisation
(literal translation – int said)
Applicant looks in her paperwork for something can’t find anything. Now looks on mobile for correct abbreviation.
10. What are you checking for?
It is recorded in my message section of my mobile.
11. What is recorded?
The correct name of the organisation. What I told you in Amharic is the correct one. I was just trying to find out in English.
12. Why did you need to check you mobile for the name of party? If you were truly a member you would know this?
I know it in Amharic which we normally use it, but I don’t know in English which I was trying to find from my mobile.
13. When did you join the All Ethiopian People Org?
2 years ago
14. Correct abbreviation for this party?
EDHP.’
At the end of the interview, the following was recorded:-
‘Are you still feeling fit and well?
Yes, not bad.
Have you understood all of the questions put to you today?
Yes.
Have you understood the Home Office interpreter?
Yes.’
The Immigration Judge’s record of proceedings showed:-
‘Confirm name of political[?]
CUD – The All Ethiopian Unity Party
How long a member
2 years
More precise – year
Can’t remember now
Said joined 2 yrs ago At int said November 2003 can u explain discrepancy
My head is not right because of the child. I can’t think properly
If u had concerns re int y not raise these during int
I don’t know it in Eng. I know it is Amharic.
U said u don’t know it in Eng – just have – explain
I received my id this week thru[?] HL it was with my mother – at int I said I had one
…
U said the reasons for discrepancy was problems at int + didn’t know in Eng. U said received card [?] from mother. Is it true didn’t know name of party til had card [?] in front of u
I said it in Amharic but Intr made a mistake translating
U were represented – y not ask Representative to write into us about interpreter mistakes
I told them.’
The Immigration Judge in her determination referred to this evidence as follows:-
’18. The Appellant attended her substantive SEP interview with Miss Barnes, the Home Office Presenting Officer presenting the case on 6th December 2005. She claimed to fear the government because she was a member of a different party than that which she now claims membership of. She was asked the name of the party. She replied (question 9):- “All Ethiopian People’s Organisation”. It is recorded in the record of interview and it is not disputed by the Appellant that she looked in her paperwork for something and then looked on her mobile phone. She was asked by the interviewer what she was doing and she answered:- “It is recorded in my message section of my mobile”. When asked what was recorded she said:- “The correct name of the organisation what I told you in Amharic is the correct one. Just trying to find out in English.” She was then asked why she needed to check the name of the party if she was a member of it and her response was:- “I know it in Amharic which we normally use, but I don’t know in English which I was trying to find from my mobile.” She claimed to have joined the group 2 years previously. She then stated that the correct abbreviation for the group was “EDHP”.
19. In the Letter of Refusal it was pointed out that there is no mention in the objective evidence anywhere of a party under the name of the All Ethiopian peoples Organisation or with the abbreviation of EDHP.
20. In her rebuttal statement, the Appellant stated that the Home Officer Interpreter was unsure how to translate the name of the party and that is how the error occurred. At the hearing she claimed to be a member of the CUD which does exist. She was asked during the hearing why she had given a different name for the party at her interview and she claimed again that the interpreter had got it wrong. However, it was pointed out that at no point during the interview [had] she raised any concerns about the quality of the interpretation. Despite being represented she did not lodge any complaint subsequently through her solicitors about the quality of interpretation’.”
41. As the Respondent points out in his skeleton argument the Appellant’s complaint at the interview was about the quality of the translation by the interpreter of her Amharic answers into English. There was no direct evidence other than the Appellant’s about what she said to the interpreter or what the interpreter said to her in Amharic. The Interviewing Officer was entirely dependent on the translation provided by the interpreter. She could not know herself whether the translation was of good or poor quality. The Interviewing Officer noted her observations in English and the answers given by the interpreter in English together with the observations about the Appellant’s actions. There was no challenge to any of this.
42. Further there was a lack of any complaint by the Appellant about the interpreter at the time of the interview. No positive complaint was made by her. As the record shows she was looking for the English name of the party in her phone. She said she had given the correct name in Amharic.
43. At the conclusion of the interview as quoted above she raised no concerns about not understanding the Home Officer interpreter. The Appellant took steps to challenge the interpretation of the name of her party after the interview in correspondence with the respondent. We do not accept that the HOPO was giving evidence when she cross-examined the Appellant at the hearing before the Immigration Judge. The Appellant was asked “if you had concerns regarding the interview why did you not raise these during the interview”. That is a question based on the absence of any challenge recorded in the interview notes. Any person in possession of the interview record could properly have asked the question.
44. The issue for the Appellant was whether she actually said to the interpreter what she claimed she said i.e. that she gave the correct name of the party she belonged to in Amharic but that she did not know it in English. She did however accept in interview that the correct name of the party was EDHP.
45. The Immigration Judge had to reach conclusions on this issue from a combination of the Appellant’s oral account given at the hearing for which there was no supportive documentary evidence and inferences drawn from the undisputed record of the interview recorded in English.
46. We note that the Immigration Judge recorded at paragraph 21 and 22 that the Appellant had only recently read the proper name of the party in English from her membership card which had been sent to her by her mother. The Appellant confirmed that she had read the English on her identity card and that she could read English. At paragraph 22 the Immigration Judge concluded:
“22. If an Appellant is sufficiently proficient in English to be able to read it as well as speak it it is not credible that she would not have known the English name of her party if she had indeed been a member of it for some two years. Furthermore, given her knowledge (she gave much of her evidence in English and answered questions in English) she would have been aware immediately of any interpreter problems during her interview and if there were I find would have mentioned that at the time.”
47. We conclude on the facts of this case that the Presenting Officer did not give evidence in the form of cross-examination of the Appellant or in the form of submissions before the Immigration Judge. The Judge reached her conclusions on the basis of what she had heard in evidence and the inferences she drew from that and the record of the interview.
Intimidation of the Appellant
48. It is further part of the Appellant’s case that she was prejudiced during the hearing because she was unable to distinguish whether questions reflected the Secretary of State’s position or the personal view of the interviewer. This is said to be wrong and unreasonable “for a witness in an asylum appeal to be placed in a position where she must embark on a personal argument with an advocate or accuse that advocate of misrepresenting the facts. Many asylum seekers may be intimidated in such circumstances”. There may be cases where a particularly vulnerable asylum claimant might feel intimidated by the questioning at the hearing by the same person who conducted the interview, we refer to that at paragraph 34 above. We saw no evidence in this case that this appellant might be considered vulnerable in the way suggested.
The Judge’s Conclusions
49. We reject the claim that there was procedural unfairness in this case for the reasons given above. The judge made no error of law in the way in which she conducted the case. She was not wrong to allow the interviewing officer to present the case as the HOPO.
50. We also regard her conclusions on the appellants asylum claim as entirely sustainable. She analysed the evidence and made clear findings. These were adverse to the appellant but they were not legally wrong.
Human Rights
51. A further ground of appeal is that the Immigration Judge should not have considered human rights in this appeal. She concluded that the articles 2 and 3 claims stood or fell with the asylum appeal. Any return of the claimant to Ethiopia would not breach either article given her findings on the asylum claim. She also concluded that there would be no breach of the Appellant’s article 8 rights if she were to be removed from the UK.
52. The Appellant says that the Immigration Judge erred in law by considering human rights which should not be considered in a variation appeal when there are no removal directions. The Appellant relies on the starred decision of JM (Human Rights unarguable) Liberia [2006] UKAIT 00009 which has in fact been overruled subsequent to the hearing of this case.
53. It is said that the Immigration Judge should not have considered human rights. However, we agree with the respondent’s submission on this matter. We find no error or law in the dismissal of the appeal on asylum. Such error of law, if any, as may have been made by the Judge in considering the human rights grounds was in fact immaterial. Had JM Liberia been followed the Immigration Judge would have dismissed the human rights appeal in any event as being premature. There is no material error of law in this finding by the Judge.
HB (Ethiopia EDP/UEDP Members) Ethiopia CG [2004] UKIAT 00235
54. The Immigration Judge in her determination places some reliance on the HB case. She indicated “that limited involvement by an Appellant such as attending meetings and paying contributions is not reasonably likely to result in an Appellant being monitored or identified and therefore not at risk”. HB refers to members of opposition groups activities outside of Ethiopia. However the Appellant’s claimed activities did take place in Ethiopia except that after she moved to Dubai she claimed to have worked and contributed money to the party every month. Overall the Immigration Judge gave a series of clear reasons for disbelieving the Appellant. They included her lack of knowledge of the names of the party she said she supported; she rejected the claim that the Appellant sent more than half of her income earned in Dubai to the political party in Ethiopia. She concluded the Appellant did not make financial contributions to a political party when working in Dubai. She also rejected the Appellant’s claim that her father had been detained and then released merely because his blood pressure was bad.
55. Her conclusions are in the Tribunal’s view entirely sustainable. For the reasons given above we do not regard that there has been any unfairness in the way she reached those decisions. Such error as there was in the misapplication of the case of HB was therefore not material.
Conclusion
56. We conclude that there was no material error of law in the Immigration Judge’s decision in this case. The decision by the Immigration Judge to dismiss the Appellant’s appeal therefore stands.
Mr Justice Hodge OBE
President
16 October 2006