[2003] UKIAT 48
- Case title: KH (Fair Trial, Surendran Guidelines)
- Appellant name: KH
- Status of case: Reported
- Hearing date:
- Promulgation date:
- Publication date:
- Last updated on:
- Country: Iraq
- Judges: Mr K Drabu, Mr A Jordan
- Keywords Fair Trial, Surendran Guidelines
The decision
Appeal Number: KH (Fair Trial - Surendran Guidelines) iraq [2003] UKIAT 00048
IMMIGRATION APPEAL TRIBUNAL
Date of Decision: 1 July 2003
Date of Promulgation: 26TH August 2003
Before
Mr K Drabu (Chairman)
Mr A Jordan
Between
(Appellant)
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
(Respondent)
Representatives:
Mr A Rahman of Counsel instructed by Genga & Co, solicitors for the appellant.
Mr D Ekagha, Senior Presenting Officer for the respondent.
DETERMINATION AND REASONS
1. This appeal to the Tribunal has been brought on a narrow but important point. The appellant is a national of Iraq whose appeal against the decision of the respondent to give directions for removal following refusal to grant asylum was dismissed by an Adjudicator, Miss L Brown, sitting at North Sefton Magistrates Court. He sought and was granted permission to appeal to the Tribunal (Mr Richard Chalkley, Vice President) to prove his allegation in the grounds that the hearing before the Adjudicator had been conducted in a manner inconsistent with principles of fairness in that the appellant was subjected to repeated “cross examination both by the Home Office Representative and the Adjudicator simultaneously.”
2. We have received the Adjudicator’s comments on the allegation and we have also received a written statement of the appellant. More importantly though we have received a typed certified copy of the record of proceedings before the adjudicator. We are immensely grateful to the Adjudicator for her co-operation and helpful comments. We expressed our extreme displeasure with Counsel who was the appellant’s representative before the Adjudicator and who could have but has not put in his own witness statement. He should not in the circumstances have represented the appellant before us. He was responsible for drafting the grounds of appeal and when pressed by us about the veracity of the contents of the ground alleging unfairness, he attempted to give oral evidence. We declined to hear it and made it clear to him that as Counsel he owed a duty to the Court and that allegations of impropriety against a judicial officer are extremely serious and required to be proved to a high standard. We did not think it appropriate to adjourn the hearing to enable the Counsel to prepare his witness statement and to offer himself for oral evidence. This would have caused delay of months and we did not think it was necessary. We hope though that representatives will note that the Tribunal takes allegations of the kind made in this case very seriously and expects scrupulous and professional behaviour in proving the allegations.
3. We have had the benefit of making a careful study of the record of proceedings. Based upon our reading of the record we think that it is in the interests of justice to direct that the case be heard afresh by a different Adjudicator. However we should like to make it clear that by doing so we do not uphold the allegations made in the grounds of appeal. We are concerned that in the course of a lengthy cross examination which was carried out by the respondent’s representative, the Adjudicator has asked a number of questions. The timing, the content and the nature of some of these questions could lead to a perception of bias. An Adjudicator has every right to ask questions and to seek clarifications of evidence but he must not enter the arena and his questions must be formulated in such a way and asked at such a time as to ensure that he is not seen to be taking sides. We do not make any criticism of the Adjudicator in this case but it is clear to us that the hearing before her was not a very happy one and it was not assisted by the fact that it took place during the month of Ramadan and the appellant as well as his Counsel were fasting.
4. We allow this appeal but to the limited extent of directing that it be heard afresh by an Adjudicator other than Ms L Brown.
K Drabu
Vice President
IMMIGRATION APPEAL TRIBUNAL
Date of Decision: 1 July 2003
Date of Promulgation: 26TH August 2003
Before
Mr K Drabu (Chairman)
Mr A Jordan
Between
(Appellant)
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
(Respondent)
Representatives:
Mr A Rahman of Counsel instructed by Genga & Co, solicitors for the appellant.
Mr D Ekagha, Senior Presenting Officer for the respondent.
DETERMINATION AND REASONS
1. This appeal to the Tribunal has been brought on a narrow but important point. The appellant is a national of Iraq whose appeal against the decision of the respondent to give directions for removal following refusal to grant asylum was dismissed by an Adjudicator, Miss L Brown, sitting at North Sefton Magistrates Court. He sought and was granted permission to appeal to the Tribunal (Mr Richard Chalkley, Vice President) to prove his allegation in the grounds that the hearing before the Adjudicator had been conducted in a manner inconsistent with principles of fairness in that the appellant was subjected to repeated “cross examination both by the Home Office Representative and the Adjudicator simultaneously.”
2. We have received the Adjudicator’s comments on the allegation and we have also received a written statement of the appellant. More importantly though we have received a typed certified copy of the record of proceedings before the adjudicator. We are immensely grateful to the Adjudicator for her co-operation and helpful comments. We expressed our extreme displeasure with Counsel who was the appellant’s representative before the Adjudicator and who could have but has not put in his own witness statement. He should not in the circumstances have represented the appellant before us. He was responsible for drafting the grounds of appeal and when pressed by us about the veracity of the contents of the ground alleging unfairness, he attempted to give oral evidence. We declined to hear it and made it clear to him that as Counsel he owed a duty to the Court and that allegations of impropriety against a judicial officer are extremely serious and required to be proved to a high standard. We did not think it appropriate to adjourn the hearing to enable the Counsel to prepare his witness statement and to offer himself for oral evidence. This would have caused delay of months and we did not think it was necessary. We hope though that representatives will note that the Tribunal takes allegations of the kind made in this case very seriously and expects scrupulous and professional behaviour in proving the allegations.
3. We have had the benefit of making a careful study of the record of proceedings. Based upon our reading of the record we think that it is in the interests of justice to direct that the case be heard afresh by a different Adjudicator. However we should like to make it clear that by doing so we do not uphold the allegations made in the grounds of appeal. We are concerned that in the course of a lengthy cross examination which was carried out by the respondent’s representative, the Adjudicator has asked a number of questions. The timing, the content and the nature of some of these questions could lead to a perception of bias. An Adjudicator has every right to ask questions and to seek clarifications of evidence but he must not enter the arena and his questions must be formulated in such a way and asked at such a time as to ensure that he is not seen to be taking sides. We do not make any criticism of the Adjudicator in this case but it is clear to us that the hearing before her was not a very happy one and it was not assisted by the fact that it took place during the month of Ramadan and the appellant as well as his Counsel were fasting.
4. We allow this appeal but to the limited extent of directing that it be heard afresh by an Adjudicator other than Ms L Brown.
K Drabu
Vice President