Tribunal decisions

The decision

XS (Kosovo- Adjudicator’s conduct – psychiatric report) Serbia and Montenegro [2005] UKIAT 00093

IMMIGRATION APPEAL TRIBUNAL

Date: 10 January 2005
Date Determination notified:
26/04/2005.

Before:

The Honourable Mr Justice Ouseley (President)
Mr D K Allen (Vice President)
Mr R A McKee

Between:

[ ]
APPELLANT

and

Secretary of State for the Home Department
RESPONDENT

Appearances:
For the Appellant: Mr Walsh, instructed by the Refugee Legal Centre
For the Respondent: Ms L Saunders, Home Office Presenting Officer

DETERMINATION AND REASONS

1. This is an appeal against the determination of an Adjudicator, Mr M Shrimpton, promulgated on 10 October 2003. In that determination, he dismissed the Appellant’s appeal from the refusal of the Secretary of State on 30 May 2003 to grant asylum and his giving removal directions for the Appellant’s removal as an illegal entrant to Serbia and Montenegro (Kosovo).

2. The Appellant had claimed to be a citizen of Serbia and Montenegro from Kosovo of Gorani ethnicity from the Dragash municipality in the south of Kosovo. He had entered this country on 2 May 2003 concealed in a lorry, travelling from Macedonia via Germany. He had been living in Macedonia since leaving Kosovo in 1999.

3. The Appellant’s claim had initially been certified but the certificate was withdrawn following an application for Judicial Review. The Secretary of State accepted on the evidence that the previously disputed Gorani ethnicity of the Appellant had now been established. At the outset of the hearing before the Adjudicator, the Adjudicator sought to establish what the Secretary of State was now contending about nationality, in the light of the comments in the refusal letter about there being no record of anybody of the Appellant’s name having been born or having lived in the villages where the Appellant claimed that he had been born and lived. The Home Office Presenting Officer, according to paragraph 13 of the determination, said in terms that the Secretary of State did not accept that the Appellant was from Kosovo, although he now accepted that he was of Gorani ethnicity. Bearing in mind the limited geographical area in which Gorani was spoken, the Adjudicator concluded that in effect the Secretary of State’s case was that the Appellant came from Macedonia rather than from Kosovo, or was at any rate that the Appellant could not demonstrate to the necessary low standard of proof that he did come from Kosovo.

4. The Adjudicator then turned to the case in relation to persecution and risk of treatment in breach of Article 3. He said in paragraph 19:

“I am sorry to say, having seen and heard the appellant give evidence today, tested very thoroughly if I may say in cross-examination by Mr Flegg that the reasonable degree of likelihood or serious possibility standard of proof is nowhere near met.”

The Adjudicator explained why he came to that conclusion in the succeeding paragraphs.

5. The first point that he made was that the Appellant could not give a credible account of how he got from Tetovo in Macedonia to Germany, nor from Germany to England. All that he said was that he came by a lorry from Tetovo concealed in a “box”. The Adjudicator said that the Appellant could barely describe the box and was unable to explain how he crossed a minimum of five international frontiers before arriving in Germany. The Adjudicator had asked the Appellant a number of questions about the route taken and the upshot of the answers was that the Appellant did not know, but said that at no frontier was the lorry searched nor was he asked for papers. The Adjudicator did not accept that, finding the whole account implausible. He said:

“I do not accept for one moment that the appellant could cross so many international frontiers without a single search being made …. I accept that one could travel quite easily concealed in a lorry between Austria and Germany, but I do not accept it would be so easy to cross the other international frontiers, not least in a part of the world as tense as the Balkans have been in recent years.”

6. He continued saying that he did not accept the account of how the Appellant was concealed in the lorry because he could give no credible or sensible explanation of how he was concealed or the manner in which he was concealed. The Adjudicator rejected the claim that he could travel from Macedonia to Germany and on to the United Kingdom without any form of identity documents. He thought it overwhelmingly probable that the Appellant had had proper national identity documents.

7. Next the Adjudicator concluded the Appellant had given an inconsistent account of his background, had given no credible explanation as to how he had come by the not insubstantial sum of 5,000 euros and had produced no document of identity or other documents linking him to Kosovo.

8. The Adjudicator then said that he did not accept that the Appellant was from Dragash in Kosovo. The Adjudicator also pointed out that record keeping in the Federal Republic of Yugoslavia from the alleged birth day in 1984 of the Appellant was not so incomplete that there would have been no record had the Appellant come from the villages which he claimed to come from. The Secretary of State had made enquiries in Kosovo. In the upshot the Adjudicator concluded that the Appellant, although a Gorani, was a citizen of Macedonia from the region of Tetovo or an area close to the Macedonia/Kosovan border. He had earned money there as a labourer or elsewhere in Europe. He had not left Macedonia as recently as 2002.

9. The Adjudicator then said that even if the asylum claim had been credible there was now a sufficiency of protection for those of Gorani ethnicity in Kosovo.

10. As to the human rights claim which was based on Articles 3 and 8, and the depression from which the Appellant claimed to be suffering, the Adjudicator rejected the evidence from two psychiatrists to the effect that the Appellant was suffering from depression, because he said that both the doctors had assumed for the purposes of their reports that the Appellant’s account of ill-treatment in Kosovo was true. The Adjudicator said that the account was not true and therefore the reports faced the fundamental objection that the Appellant was not a reliable historian. There was nothing genuine in the claims to have a suicidal ideation or in the threats of suicide which he had made known to the doctors, were he to be returned to Kosovo. Both reports suffered from the same defect, that is to say, “the lack of adequate work on validation [of] self-reporting symptoms, where the person reporting the symptoms has something to gain”.

11. But in any event, the Adjudicator continued, even if the Appellant was suffering from a major depressive disorder and was from Kosovo, there were adequate facilities available there for his treatment. There was no evidence about the position in Macedonia but it was for the Appellant to show that there were there deficiencies in treatment of such a nature as to assist the ECHR claim.

12. The Adjudicator then referred to a further hurdle which he said lay in the way of the human rights claim, although he reached no concluded view on it: that was the principle of extra territoriality as he described it, namely that the ECHR could not impose obligations on the United Kingdom in relation to what might happen to an individual upon return to their own country. Thereafter the Adjudicator returned to whether there would be anything disproportionate about the return of the Appellant to Kosovo or Macedonia for the purposes of Article 8(2), concluding that it could not begun to be said to be disproportionate to remove the Appellant. The human rights aspect was not arguable he said.

13. The Adjudicator made some further comments about whether a threat of suicide “where the suicide would be voluntary” could engage the United Kingdom’s international obligations in any way. He expressed no concluded view on the matter, but was clearly inclined to the view that the law could not hold out to non-nationals the prospect of non-removal merely by their threatening in the absence of significant mental illness to take their own life.

14. The Adjudicator also commented on some matters that had transpired during the course of the hearing. We set those out because they are relevant to submissions which Mr Walsh made to us:

“I should say for the avoidance of doubt, having referred to Mr Flegg’s cross-examination, that Mr Walsh, with a degree of impertinence with respect, suggested that I too had conducted a cross-examination. It is right that I put additional questions to the appellant, but it is trite law in this jurisdiction that an Adjudicator is entitled to put questions of his or her own to a witness, including an appellant. It is almost by definition additional questions will refer to matters not raised in cross examination. There is no rule of law restricting an Adjudicator to questions that have already been put, on behalf of the Secretary of State and I did not uphold an objection by Mr Walsh to additional questions, for example on the appellant’s method of getting to this country.

When the appellant was first asked by me how the lorry got from Tetovo to Germany, he was unwise enough (with respect) to give what he no doubt thought was a clever answer, to the effect that it got to Germany because it had an engine. Unsurprisingly in those circumstances there was an element of asperity in my follow-up question, because I had not supposed for one moment that the lorry which allegedly took the appellant all the way from Tetovo to Germany by a route which cannot be identified, across frontier crossing points which cannot be named, was towed all the way. For the avoidance of doubt I do not accept that the appellant was concealed in a lorry, as I have already explained, indeed I reject the entirety of his case, save for his name.”

15. The grounds of appeal and submissions from Mr Walsh on behalf of the Appellant claimed that the Adjudicator had acted in a way which was procedurally unfair and in a way which would lead an informed and fair-minded observer to conclude that there was a real possibility that the Adjudicator had been biased. The first factor was that before the appeal had begun at all, the Adjudicator indicated strong scepticism as to the merits of the case. Mr Walsh said that there might be nothing wrong with scepticism being expressed in certain circumstances, but it was necessary to be particularly careful where, as here, there was to be oral evidence from a witness. There was a world of difference between enquiring neutrally about how a particular problem was going to be dealt with, such as why there was no record of the Appellant’s birth in Kosovo and commenting that there was not much of a case or why were human rights being raised at all.

16. The second factor related to the way in which questions had been asked by the Adjudicator. It was not so much that the Adjudicator had asked questions, it was rather that he raised them in a manner which was akin to a cross-examination asking leading questions in a hostile and sceptical tone; they were extensive questions and in part were interposed during the course of cross-examination by the Home Office Presenting Officer. They raised issues with which the Home Office Presenting Officer had not been concerned: in particular the manner in which the Appellant had travelled from Macedonia to the United Kingdom, the timing of the making of the claim for asylum and the record of birth in Kosovo. Worse, the answers in relation to the journey had been misrepresented in the determination. Time and again, questions were put about whether the lorry would have been searched at a frontier and the answer remained that the Appellant did not know whether there would have been searches or what frontiers had been crossed, because he was inside something which looked like a box, which he was unable to describe further. Thus, the essence of the answers to the repeated questions about those matters was that the Appellant did not know what the position was. Mr Walsh had objected to this questioning on the grounds that it was repetitive, hostile and had equalled and later exceeded the number of questions put by the Home Office Presenting Officer, by 22 to 15. The Appellant said that he had attracted the attention of police after embarking from the lorry in the United Kingdom and not, as the Adjudicator asserted to him, that he only claimed asylum when apprehended.

17. Likewise, the Adjudicator put assertive questions to the Appellant about his national origin; even the Home Office Presenting Officer had not done so, whilst taking the stance (tentatively accordingly to Mr Walsh), that the Secretary of State’s decision letter left open the Appellant’s nationality. It was rather less firm a stance than recorded in paragraph 13 of the Adjudicator’s determination. Mr Walsh accepted that, at the outset of the hearing, the Adjudicator had raised the question of whether the Appellant was a Gorani from Macedonia, but it had been put forward more tentatively by Mr Flegg than recorded. It did not follow that the Secretary of State ought to have amended the removal directions in order to make out a contention that the Appellant was not from Serbia and Montenegro. In reality the Adjudicator had developed his own theory of the case, both so far as the journey was concerned and in the analysis of the Appellant’s nationality. Further indications of unfairness and an appearance of bias could be found in the fact that the Home Office Presenting Officer had not been asked to make submissions but instead, contrary to the normal procedure, the Adjudicator had asked Mr Walsh to sum up his case for the Appellant. That indicated that the Adjudicator had made his mind up.

18. He had also failed to understand and deal with the true import of the psychiatric evidence. The two reports and in particular the later one of Dr Turner, were not simply dependent for their analysis as to the existence of a major depressive order on the accuracy of the Appellant’s story, or upon what were described as “self-reported” symptoms. When those reports were properly read, it was clear that the causation of the disorder was not key to the diagnosis of its existence. The doctors and in particular Dr Turner, explained carefully how they had reached their diagnosis. They had made a careful diagnosis and although there was some self-reporting of the symptoms, the diagnosis according to the report was based upon the independent use of psychiatric experience and expertise applied within the relevant DSM and ICD frameworks. The dismissive way in which the Adjudicator dealt with those reports was not just an error in itself but also indicated the extent of bias and hostility. The Adjudicator had also expressed unnecessary views about the extra territorial effect of Articles 3 and 8 and unconventional views about suicide, both of which were unfavourable to the Appellant and neither of which were necessary.

19. Although the Adjudicator, had expressed the view that even if the Appellant were who he said he was, and suffered from a major depressive disorder, the claim would fail because of the availability of protection and treatment in Kosovo, no reliance could be placed on those views because of the appearance of bias in the other conclusions of the Adjudicator.

20. Mr Walsh relied upon a number of IAT decisions as to how Adjudicators should conduct any questions, most notably that of K (Côte d’Ivoire) [2004] UKIAT 00061 and WN (DRC) [2004] UKIAT 00213. We set out paragraphs 37 and 38 of the latter case:
“37. The last sentence of guideline seven can be misleading. It is designed to prevent cross examination or the appearance of cross examination, rather than to prevent a question being asked if it was a question which the Home Office Presenting Officer could have put if he had been present. The risk of cross-examining or appearing to cross-examine can be avoided by an Adjudicator in the manner, style or length of questions, which he asks. Generally, questions other than those designed to clarify what was said or intended to be said are better left until after the conclusion of evidence where no Home Office Presenting Officer is present and after re-examination where a Home Office Presenting Officer is present but see K (Côte D’Ivoire) [2004] UKIAT 00061.
38. Questions should not be asked in a hostile tone. They should not be leading questions which suggest the answer which is desired, nor should they disguise what is the point of concern so as to appear like to a trap or a closing of the net. They should be open ended questions, neutrally phrased. They can be persisted in, in order to obtain an answer; but they should not be persisted in for longer than is necessary for the Adjudicator to be clear that the question was understood, or to establish why it was not being answered, or to pursue so far as necessary the detail underlying vague answers. This will be a matter for the judgment of Adjudicators and it should not usually take more than a few questions for an Adjudicator to establish the position to his own satisfaction. An advocate should always be given the chance to ask questions arising out of what the Adjudicator has asked, which will enable him to follow up, if he wishes, the answers given thus far. The Adjudicator can properly put, without it becoming a cross-examination, questions which trouble him or inferences from answers given which he might wish to draw adversely to a party. These questions should not be disproportionate in length to the evidence given or to the complexity of the case, and, we repeat, an Adjudicator should be careful to avoid developing his own theory of the case.”
21. Following directions given by the Tribunal it was established that Mr Flegg, who had appeared for the Secretary of State before the Adjudicator, had no comment to make upon the notes made by Mr Walsh as to what had been said and done at the hearing.
22. The Adjudicator’s comments on what had been said by Mr Walsh were sought. He said that although he was unable in effect positively to confirm Mr Walsh’s note of what had happened, he would not dispute “that it is a reasonable summary”. However, he said that he had not indicated strong scepticism at the outset, although it was his view that it was not the strongest appeal and his purpose in asking questions at the outset, as set out paragraph 10 of the determination, was to clarify what the issues were as a result of the withdrawal of the certificate following the judicial review proceedings. He denied that the questioning had been extensive but as the answers were evasive and unsatisfactory it was possible, not that he adopted a highly sceptical approach but that that a degree of scepticism might well have been present along the lines of “are you asking me to believe etc”. It had been unnecessary to call on the Home Office Presenting Officer because the case was clear. It was the Adjudicator’s task, he said, to raise the issues which needed to be put, in order fairly to determine the issues before him. There had been an intervention by Counsel and the Adjudicator had drawn attention to that in his determination. The Adjudicator’s comments also asserted the correctness of his comments about extra territoriality and various other cases. He maintained that the Secretary of State never accepted that the Appellant came from Kosovo.
23. Mr Saunders for the Secretary of State said that most of the questions were asked after the Home Office Presenting Officer’s cross-examination had concluded and the Adjudicator had offered an opportunity for re-examination upon the questions which he had asked. It was better for the issues to be raised at the hearing if they were troubling to the Adjudicator. The answers had been of such a quality that the Adjudicator was entitled to persist in order to eliminate so far as possible the vagueness of the replies. There had been no need to ask the Home Office Presenting Officer for submissions in view of the conclusion, which it was legitimate by that stage for the Adjudicator to reach, that the case was weak and unsatisfactory. It was accepted that there had been no cross-examination about the nationality of the Appellant. Even if there had been an error in the understanding of the medical evidence, at its highest it showed only that there was a significant or major depressive condition and the Adjudicator was entitled to point out that treatment for that condition was available in Kosovo; and if the Appellant was properly found to be from Macedonia, the Appellant had provided no evidence in relation to the situation in Macedonia.
Conclusions
24. We first point out that what the Tribunal said in WN (DRC) [2004] UKIAT 00213 applies here too: the Surendran guidelines as discussed and explained in that case are guidelines. They do not cover every situation in which the judgment of an Adjudicator is called for as to how to approach a particular case; fairness and commonsense must guide them. If the guidelines are breached, it does not necessarily follow that the Adjudicator has made an error of law, or acted unfairly or even appeared to do so. They are designed to be guidelines not a source of hazard for the judiciary.
25. The question that underlies all cases in which, as here, an Adjudicator’s conduct of the hearing is at issue, is whether the hearing was fair, and whether there was a real possibility that an informed observer would think that the judge was biased.
26. In reaching a view on those issues, compliance with the guidelines will make the task of someone alleging unfairness very much more difficult and non-compliance will assist, by contrast, without dictating the result.
27. All the factors have to be considered in the round, because some may give a flavour of what happened without themselves being of any great significance. We emphasise that because, inevitably, in analysing the allegations in a case, they have to be considered separately initially.
28. In this case, there is little dispute in fact as to what happened at the hearing. Mr Walsh’s notes were not disputed by Mr Flegg; the Adjudicator, although differing in emphasis and interpretation, did not take significant issue with what was said other than in respect of what the Home Office Presenting Officer declared the Secretary of State’s stance on nationality to be. The determination itself acknowledges that an issue arose over the manner and length of the Adjudicator’s questions.
29. We now turn to the individual allegations. It is perfectly proper for an Adjudicator to ask questions at the outset to establish what the parties’ positions are on particular issues and to establish that certain issues will be addressed, and to have the answers to particular points sketched in. Adjudicators are expected to do significant pre-reading and it should assist the management of the hearing. But where live evidence is to be heard, it is unwise and very likely reasonably to be seen to be unfair for an Adjudicator to express a sceptical view about the credibility of a case. That is not the same at all as expressing doubts about how a case can succeed even if the evidence is accepted. It is possible that the Adjudicator overstepped the mark here, but the detail of what was asked, and how, is not sufficiently clear for a concluded view to be reached.
30. It was perfectly proper for questions to be asked by the Adjudicator of the Home Office Presenting Officer as to what the Secretary of State’s position on nationality was. There is an issue as to how tentatively that position was expressed; the Adjudicator records a firm position, but one which the Home Office Presenting Officer does not appear to have pursued. We do not find it necessary to reach a concluded view. The Adjudicator delivered his decision orally at the hearing; the Home Office Presenting Officer did not interject to disavow what he was said to have conceded.
31. It was not illegitimate for the Adjudicator to ask questions about the mode of travel and nationality of the Appellant, even though those issues were not pursued by the Home Office Presenting Officer. An Adjudicator is entitled to raise issues which trouble him. However, where there is a Home Office Presenting Officer, who does cross-examine, an Adjudicator should sense warning bells ringing over what he then does.
32. The questions should be asked after cross-examination has concluded except for clarification. Otherwise, there is an appearance of a dual cross-examination. It may be otherwise if there is no Home Office Presenting Officer and an issue arises unexpectedly in evidence in chief. Here some questions were asked by the Adjudicator during cross-examination by the Home Office Presenting Officer.
33. The questions should not be too long. There is no precise permissible ratio, but asking significantly more questions than the Home Office Presenting Officer is again an indication of apparently excessive intervention with the attendant risk of apparent bias.
34. We accept that the tone of the questions was hostile, leading and repetitive and contained expressions of disbelief. Mr Walsh’s notes, the Adjudicator’s comments and the determination support that. We have no difficulty accepting and regarding as fair a certain asperity following one facetious answer given to the Adjudicator. But the hostility went beyond that. The Adjudicator simply did not believe the Appellant, and repeated the questions in a disbelieving manner. There was no need for that in order to resolve a vagueness; the denial of knowledge about the frontiers and the “box” was self-consistent.
35. We also accept that this was on a peripheral issue; the Adjudicator with his approach to nationality, frontiers, mode of travel and source of money and, seemingly inaccurately, as to when the Appellant declared himself to the police, was developing his own theory of the case. This was very different from the Secretary of State’s refusal letter or the Home Office Presenting Officer questions. Again, no absolute rule can be laid down; an obvious issue may have been omitted; credibility may be at issue but a facet not otherwise explicitly identified may call for examination. However, in what remains an essentially adversarial system, for an Adjudicator to develop a hostile theory, in addition to the Secretary of State’s different opposition can create a real possibility of the Adjudicator appearing biased. Warning bells should be sounding.
36. We do not consider that there was any unfairness in asking for the Appellant’s submissions without asking for the Home Office Presenting Officers. It is quite possible for a fair provisional conclusion to have been reached, by the stage of speeches, as to the credibility of a witness. It is fair for the party against whom that conclusion has been provisionally reached to be asked to deal with the issues. Of course, and this case illustrates the point, that assumes that the Adjudicator is dealing with the Home Office Presenting Officer’s case rather than his own. The Appellant’s advocate must be in a position to know what the Home Office Presenting Officer’s position is and importantly also an Adjudicator would benefit from knowing what points were still actively being pursued by the Home Office Presenting Officer. Although we do not see it as a separate head of apparent unfairness, it was unwise for the Adjudicator not to hear even briefly or in outline the main contentions of the Home Office Presenting Officer. That might have enabled the Adjudicator to avoid developing his own theory too far.
37. The Adjudicator’s expression of his individual views on important, general issues, adverse to the general position of the Appellant was unnecessary and may have risked giving a false impression of bias but it is not of itself an important matter.
38. The treatment of the psychiatric evidence was independently erroneous, though it stemmed from the adverse credibility conclusions. It is important to distinguish between the situation where the relevance of the psychiatric, or other medical, evidence is wholly or in part to support the truthfulness of the account given by the Claimant, and where its relevance is that the illness or condition exists, regardless of its course. The one report may be relied on for both arguments. There are also cases and reports where the diagnostic conclusions are wholly dependant upon the history or the symptoms asserted by the Claimant, whose very truthfulness on those matters is at issue before the Adjudicator but not before the psychiatrist. The Tribunal’s comments in HE (DRC) (Credibility and psychiatric reports) [2004] UKIAT 00321 are of general importance.
39. The psychiatrists here made some criticism of the concept of self-reported symptoms, in responding to Secretary of State criticisms. But the point made by the Secretary of State is clear enough, and is often obvious in many reports.
40. Where the Adjudicator erred in relation to these reports and Dr Turner’s in particular, is that he failed to realise that they were seeking to address those two concerns which commonly arise: first, to what extent was their diagnosis dependant on the Appellant’s account of what had happened, and second, to what extent had they deployed their experience and expertise to reach a conclusion which was objectively supportable rather than one which simply accepted symptoms which could be described but which could not be verified. The Adjudicator dealt with the issues as if Dr Turner’s report was a commonplace report which simply accepted the Claimant’s evidence, concluded that what he said happened had happened and accepted as equally truthful the Appellant’s own description of symptoms; it is that type of report which is of such limited value in assessing credibility or illness.
41. We are very far from saying that an Adjudicator would be bound to accept the reports’ conclusions however. He could still say that those issues were not persuasively addressed. But these were reports of significantly greater authority and care than is so often found. They did seek to grapple with those difficult issues. They should have been considered on that basis. Instead, those material factors were ignored and they were dealt with as if the conclusions were simply dependant on an unqualified acceptance of whatever the Appellant told them, when the psychiatrists and Dr Turner in particular, with reason, were denying that that was so.
42. We prefer to analyse the error that way. We do not see this as adding grist to the mill of the bias argument.
43. We have come to the conclusion that viewed in the round and particularly because of the topics and nature of the Adjudicator’s questions, that there was a real possibility that the Adjudicator would have appeared biased to the informed observer. We do not doubt that the Adjudicator intended to be fair, and he is certainly open about what he is thinking. But we find it difficult to avoid the conclusion that even if he had not made up his mind before the case began, he would have so appeared to the informed observer.
44. He has also independently erred in an assessment of the psychiatric evidence.
45. We do not consider it appropriate in those circumstances, in the absence of the clearest possible case, for reliance to be placed so as to dismiss this appeal on the “fall-back” views expressed by the Adjudicator.
46. This appeal is allowed to the extent that it is remitted for hearing other than before Mr Shrimpton. It will come before the AIT, which will decide how it should in fact proceed.
47. This decision is reported as an illustration of what we have said about Adjudicators’ conduct, and about psychiatric reports.

MR JUSTICE OUSELEY
PRESIDENT