Tribunal decisions

The decision

KC (Adjudicator wrongly obtaining post-hearing evidence) Turkey [2005] UKIAT 00010

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 3 December 2004
Date signed: 14 December 2004
Date determination notified: 19th January 2005

Before:

Mr L V Waumsley (Vice President)
Mr G F Sandall
Ms V S Street

Between

Appellant

and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

DETERMINATION AND REASONS

For the Appellant: Mr J Collins of counsel, instructed by Sheikh & Co, solicitors
For the Respondent: Mr G Phillips, Home Office Presenting Officer

1. The appellant, a citizen of Turkey, appeals with permission against the determination of an adjudicator (Mr C A Vaudin d'Imécourt), sitting at Taylor House, in which he dismissed the appellant's appeal on both asylum and human rights grounds against the respondent's decision to give directions for his removal from United Kingdom as an illegal entrant after refusing an application for asylum made by him.

2. The appellant arrived in the United Kingdom in June 2002. He applied for asylum shortly after his arrival. The grounds on which he did so may be stated shortly. He said that he was of Kurdish ethnicity, and was a sympathiser of the DHKP-C (Revolutionary People's Liberation Party - Front), an illegal organisation in Turkey. As a consequence, he had been detained and ill-treated by the Turkish authorities on three occasions between August 1998 and May 2002. On the third occasion, he was taken to the Security Headquarters in Istanbul, where he was held for two days, before being assisted to escape by a policeman who had been bribed by the appellant's father. He applied for asylum shortly following his arrival in the United Kingdom on the grounds that he would still be at risk of being detained and ill-treated by the authorities on return to Turkey because of his involvement with the DHKP-C.

3. In his determination, the adjudicator rejected the appellant's evidence in its entirety. He concluded at paragraphs 39 of his determination that, "The appellant was not telling a word of truth in this case and that he had made up his entire account in order to satisfy a false claim for asylum in the United Kingdom". It was on the basis of those findings that he dismissed the appeal on both asylum and human rights grounds.

4. The appellant seeks to challenge the adjudicator's decision on a number of grounds. However, his principal challenge is one of procedural unfairness, namely that following the hearing, the adjudicator had obtained further evidence from the Internet, and had taken that evidence into account when arriving at his credibility assessment without giving the parties an opportunity to address him on it.

5. We heard submissions first from Mr Collins, who appeared for the appellant. He directed our attention to paragraphs 33 of the adjudicator's determination in which he stated:

"In addition in this case I have been able to download the DHKPC-C logo from the Internet a copy of which I have placed in the file. It is not a red flag with a yellow star in the middle as claimed by the appellant, but a red flag with a red star with a yellow hammer and sickle at the centre of the star".

6. Mr Collins pointed out that the adjudicator had not identified the website from which he had obtained the DHKP-C logo. His instructions were that the adjudicator was wrong in stating that this logo appeared on the DHKP-C flag, and that the appellant's own description of that flag as recorded in his witness statement was in fact the correct one. If the adjudicator had put this point to the appellant, as he should have done, the appellant would have been able to explain the true position.

7. The adjudicator had used the fact that the logo which he had obtained from the Internet did not match the appellant's description of the flag which he had claimed to be carrying when he was arrested during the May Day demonstration in Istanbul on 1 May 2002 as one of the reasons why he rejected the truth of the appellant's evidence. He had erred in arriving at that conclusion. It was a conclusion which had had a material influence on the rest of his credibility findings. Those findings were therefore tainted as a consequence. He invited us to remit the appeal for rehearing by another adjudicator.

8. We then heard submissions from Mr Phillips, who appeared for the respondent. He accepted that the adjudicator was wrong to download the DHKP-C logo from the Internet after the hearing without informing the parties that he had done so, or was intending to do so, and without giving them an opportunity to address him on it. Furthermore, he acknowledged that the Internet printout showed the DHKP-C logo, not the DHKP-C flag. It did not necessarily follow that the two were identical.

9. Initially, he sought to persuade us that, even ignoring this aspect of the appellant's evidence, the adjudicator had had ample reasons for rejecting the remainder of his evidence, and that the appeal should therefore be dismissed. However, on reflection, he conceded that a remittal would probably be the safer option.

10. With respect to this experienced and learned adjudicator, we are bound to say that he plainly fell into error in obtaining further material evidence of his own motion following the hearing without informing the parties of his intention to do so, and without giving them an opportunity to address him on it. As a matter of natural justice and procedural fairness, an adjudicator should exercise the greatest caution before obtaining further evidence following a hearing without informing the parties of his intentions, and without giving them an opportunity to address him on it, if so minded.

11. There are certain limited categories of evidence which an adjudicator may be justified in obtaining following a hearing without needing to inform the parties of his intention to do so, and without allowing them an opportunity to address him on it. However, that would apply only to evidence of an uncontroversial and objectively verifiable nature, e.g. the geographical distance between Ankara and Istanbul. Nevertheless, even in those circumstances, an adjudicator would be well-advised to exercise caution before obtaining evidence of even that kind because of the possibility of misunderstanding. By way of example, there is the possibility that the evidence may actually have referred to another place with the same name, and the adjudicator may therefore inadvertently have been led into error.

12. Apart from those limited categories, where the truth and reliability of the evidence cannot realistically be in any doubt, an adjudicator should as a matter of natural justice and procedural fairness make his decision only on the basis of the evidence which has actually been placed before him by the parties, or which he has informed them that he intends to take into account in arriving at his decision, and on which they have been given a proper opportunity to address him, if so minded.

13. In the present instance, the evidence which the adjudicator obtained of his own motion and on which he based, at least in part, his adverse credibility findings clearly does not fall within that limited category of evidence which may properly be regarded as uncontroversial and objectively verifiable. On the contrary, at the hearing before us, Mr Collins, acting on the instructions which he had received, hotly disputed the accuracy of the evidence obtained by the adjudicator. In the circumstances, the adjudicator plainly fell into error in taking that evidence into account in arriving at his assessment of credibility.

14. We did give consideration to Mr Phillips’ initial submissions that, even without that aspect of the appellant’s evidence, the adjudicator had had ample reason to reject the remainder of it in its entirety, and accordingly that his error did not constitute a material error of law sufficient to undermine the sustainability of his overall decision. However, as Mr Phillips himself acknowledged, the possibility that the adjudicator's adverse, and arguably erroneous, conclusions in relation to the DHKP-C flag tainted the remainder of his credibility assessment is not one which can be ruled out. In consequence, we are not persuaded that Mr Phillips’ initial submission is one which may safely be adopted.

15. Accordingly, we are left with no alternative save to remit this appeal for rehearing by another adjudicator. In so doing, we are bound to express our concern that this is the second occasion on which it has been found necessary to remit this appeal for rehearing. In order to avoid, or at least minimise, the risk of that proving necessary on a third occasion, we would respectfully recommend that the remitted appeal be listed for hearing by a full-time adjudicator or an experienced part-time adjudicator only.

16. This appeal is allowed to the limited extent that it is remitted for a fresh hearing before an adjudicator other than Mr C A Vaudin d'Imécourt and Mr P V Ievins.

Signed

L V Waumsley
Vice President

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