by Mark Henderson and Rowena Moffatt of Doughty Street Chambers
and Alison Pickup of the Public Law Project
~ 2020 Updated Edition ~
10.1 Rule 24(1) provides that:
...when a respondent is provided with a copy of a notice of appeal, the respondent must provide the Tribunal with—
(a) the notice of the decision to which the notice of appeal relates and any other document the respondent provided to the appellant giving reasons for that decision;
(b) any statement of evidence or application form completed by the appellant;
(c) any record of an interview with the appellant in relation to the decision being appealed;
(d) any other unpublished document which is referred to in a document mentioned in subparagraph (a) or relied upon by the respondent; and
(e) the notice of any other appealable decision made in relation to the appellant.
10.2 Rule 24(3) requires the Respondent to provide these documents to the Tribunal within 28 days of being served with the notice of appeal and accompanying documents. It does not specify that the documents must also be provided to the appellant but this is clearly an oversight. The Asylum Policy Guidance on 'Appeals Bundling' and the Modernised Guidance on 'Prepare Appeal' state that copies of the appeal bundle should be prepared for the appellant as well as the Tribunal, and that the Home Office has agreed with the Tribunal to provide these papers by 2pm on the 6th day after the appeal is lodged.
10.2A The Home Office guidance entitled 'Bundles: preparing appeal PF1 documents and service of respondent appeal bundles' states that the Home Office must include the following documents in its bundle for in-country appeals:
• the notice of decision to which the appeal relates
• any application form and any evidence submitted with the application that has been retained (where evidence submitted has not been retained, this should be referenced in the PF1)
• any screening interviews
• any witness statement or preliminary information form
• any interview record
• any further submissions
• any country information, Country Policy and Information Note (CPIN) or Country Policy Information request and response referred to in the refusal letter
• any other information not listed above which is referred to in the refusal letter
• any previous refusal where there has been an appealable decision and any appeal determination (if applicable)
10.3 Check the appeal papers when you receive them to ensure that they include everything required by rule 24(1) and the Home Office's own policy.
10.4 The reference in rule 24(1)(c) to providing 'any record of an interview with the appellant, in relation to the decision being appealed' should include all interviews conducted in connection with the asylum/ human rights claim. In Miah (interviewer's comments: disclosure: fairness)  UKUT 00515 (IAC), McCloskey J held that fairness requires that any documents relied on by the Respondent, including all interview records and any written comments by the officer conducting the interview, must be disclosed to the appellant.
Details of relatives provided at our request and for our records, such as on the Statement of Evidence Form (SEF) and during interview should generally not be disclosed as this could conceivably place the claimant's family in jeopardy if it got into the wrong hands. Caseworkers should omit these details from copying and collation of the appeals papers and mark the flag to confirm this when flagging and marking annexes.
However, there may be circumstances in which family details are relevant to appeal proceedings. For example, if a claimant said that she had no family members to support her in her country of origin and that internal relocation was impossible, the family details section of the SEF may either support or cast doubt on the credibility of her account. In these circumstances, caseworkers should minute the file to bring this to the attention of Presenting Officers.
When Presenting Officers consider the disclosure of family details to be appropriate, they will prevent the identity and whereabouts of family members from entering the public domain by disclosing them to the Judge and the claimant's representative in private and by asking the Judge to make his determination anonymous.
Presenting Officers will also disclose family details during an appeal hearing whenever they are directed to do so by the Immigration Judge. However, they will not routinely disclose these details to the Judge if no request is made for them. (para 2.9)
10.5A There is a section on disclosure and confidentiality in the API on Dependants and Former Dependants which reads:
There may be cases where it is considered appropriate and necessary to disclose evidence provided by one family member to another if this is the only way to properly investigate a material aspect of the claim that cannot otherwise be explored through methods that do not require such disclosure. It may also be considered appropriate and necessary to refer to evidence from dependants or other family members in the decision. Before doing so caseworkers must have due regard to confidentiality, data protection requirements and any evidence of individual protection needs relating to family members. Under the terms of the Data Protection Act it is important to obtain informed consent from all members of the family providing evidence as part of the claim before directly referring to such evidence during an interview or in any decision to refuse the claim. An applicant may have legitimate reasons why they do not give consent, such as a fear of violence from their partner, so careful consideration needs to be given to the evidence before citing failure to give consent as a credibility issue.
10.6 Therefore, if the family details indicate anything prejudicial to the appellant's case, then the HOPO is likely to supply copies at the hearing and try to cross-examine on them. The HOPO will often ignore the instruction in the API on Disclosure and Confidentiality to provide such details in private. They should not be producing the details at all if the family member's appeal was considered in private or was itself subject to an anonymity direction. It is in any event a matter for the Tribunal not the Home Office whether the details may be given in private and family members anonymised in the determination. The standard anonymity direction suggest in the Guidance Note on Anonymity prohibits the identification of the appellant or any member of her family in protection appeals. Given Home Office policy and HOPOs' practice, it is as well to request copies from the Home Office for your records if you do not already have these, so that you are not caught by surprise. Be aware that the Tribunal may itself call up a family member's determination from its records, particularly if they are to give evidence before the Tribunal.
10.7 Check that pages of interview notes have not been omitted accidentally. This sometimes happens when an interviewer has continued a note on the reverse side of the page, but only one side has been copied.
10.8 The Asylum Instruction on 'Asylum appeal hearing - Case Management Review' states that as part of the preparation for the CMRH, the Home Office should 'Prepare a typed copy of the interview record, if the written record is not legible.' If the Home Office notes are illegible, you should seek a direction from the Tribunal that the Home Office provide a typed transcript. The Tribunal is no more keen than you to have important documents presented in illegible scrawl rather than typescript. However, be aware that the transcripts are usually made from the handwritten notes and not by the author. They often contain errors of transcription and should be checked against the handwritten record, so far as you are able to do so, in advance of the appeal hearing.
10.8A The Home Office will always prepare an appeal cover sheet (known as the PF1) which details its view of the right of appeal, a record of decisions taken in the appellant's case, a summary of the appellant's immigration history, and a list of the documents included in the Respondent's appeal papers. Check that you have all the documents in the list. It is not uncommon for the immigration history to be incomplete or incorrect and any dispute with the Home Office presentation of the immigration history should be raised in your skeleton argument or at the outset of the hearing.
10.9 The Home Office's policy is to include all documentation that has been submitted to it in support of the claim. This was confirmed to ILPA at a meeting with the Home Office Appeals Group on 15 May 2003 in response to concerns that documents were being regularly omitted from the appeal papers. The Home Office stated that:
If representations are lodged before a decision is made, they should be included within the Home Office bundle and should be covered by the refusal letter. If representations and documents [are] lodged after the Home Office refusal, copies should also be included in the bundle provided they reach the Home Office before the bundle is prepared. If further pertinent representations have been made, the Home Office should review the case and these documents should also be included in the bundle. (minutes, para 7)
10.10 Frequently, however, the documents submitted are incomplete. You should check these against any list of enclosures in the cover letter to an application. If the Home Office bundle is missing documents submitted with representations, if you have copies of these, it will usually be more efficient for you to provide these in the appellant's bundle, rather than seek a direction that the Home Office file and serve these. It is particularly important to check that documents submitted to the Immigration Service at port have been included in the bundle: these are amongst the documents most often omitted (due to lack of communication between the port and the Home Office). If there is a CMRH, and you have the respondent's bundle before it, it is worth checking with the HOPO whether he has any missing documents, especially if you don't have copies. You should also check that any original documents submitted by your client to the Home Office are either returned to you before the full hearing, or will be made available at the hearing for the Tribunal to see. Adverse inferences may be drawn against an appellant whose original documents remained with the Home Office if no attempt has been made to have these returned.
10.11 Rule 24(1)(c) and the Home Office guidance on 'Bundles' also require the Home Office to produce any unpublished document referred to in the immigration decision appealed against or in a document giving reasons for that decision (i.e. in this context, the reasons for refusal letter).
10.12 In Macit v SSHD (12613), the Tribunal indicated that the obligation was not limited to documents referred to by name. Where the refusal letter gave particulars about the Secretary of State's 'understanding' that something was the case, the rule required him to provide any document which formed the basis of that 'understanding'. The Tribunal has recently started taking breaches of this obligation very seriously. In MH (Respondent's bundle: documents not provided) Pakistan  UKUT 168 (IAC), the Upper Tribunal held that where an unpublished document was referred to in the refusal letter, but not included in the respondent's bundle, the Tribunal would be entitled to conclude that the respondent no longer relied on it (and that the passages referring to it no longer formed part of the respondent's case). In Cvetkovs (visa – no file produced – directions) Latvia  UKUT 212 (IAC), it observed that "A failure to provide this material is not merely a breach of the respondent's obligation under the Procedural Rules it will usually frustrate the effective hearing of the appeal" and observed that (para 2 of the headnote):
Where the respondent breaches Procedure Rules by failing to send documentation to the Tribunal, and the First-tier Tribunal issues a reasoned decision, based on the material before it, allowing the appeal, a challenge by the respondent based on sufficiency of reasons is unlikely to prosper on an application for permission to appeal to the Upper Tribunal.
10.13 The Home Office used to include copies of country of origin information on which it relied but the latest version of the Modernised Guidance on 'Prepare Appeal' advises that:
Objective country information such as Country of Origin Information Service (COIS) reports and US Department of State reports are no longer routinely included in asylum appeal bundles. Instead you will need to check that the reasons for refusal letter (RFRL) includes reference to the objective evidence and caselaw which was relied on in making the decision or may be relied upon at the appeal hearing. The RFRL must contain the web address of the website where country reports can be accessed externally.
The more recent 'Bundles' guidance, however, requires 'any country information, Country Policy and Information Note (CPIN) or Country Policy Information request and response referred to in the refusal letter' to be included within the Home Office bundle.
It is true that rule 24(1) does not strictly require the Respondent to provide copies of these reports since they are 'published' but if the Respondent wishes to rely on them at the hearing, copies should be provided to the Tribunal and the appellant. The standard directions require the Respondent to serve an indexed and paginated bundle containing all documents to be relied on at the hearing with a schedule identifying essential passages (see para 7.5 of the Senior President's Practice Directions). Moreover, the Tribunal has deprecated judges carrying out their own research on the internet after a hearing. In EG (post-hearing internet research) Nigeria  UKAIT 00015 the Tribunal said:
It is, however, most unwise for a judge to conduct post-hearing research, on the internet or otherwise, into the factual issues which have to be decided in a case. Decisions on factual issues should be made on the basis of the evidence presented on behalf of the parties and such additional evidence as the parties are aware of as being before the judge. To conduct post-hearing research on the internet and to base conclusions on that research without giving the parties the opportunity to comment on it is wrong. If such research is conducted, and this determination gives absolutely no encouragement to such a process, where an immigration judge considers the research may or will affect the decision to be reached, then it will be the judge's duty to reconvene the hearing and supply copies to the parties, in order that the parties can be invited to make such submissions as they might have on it.
However, in AM (fair hearing) Sudan  UKUT 00656 (IAC), the Tribunal condoned the practice of judges accessing websites contained in the footnotes of Home Office refusal letters:
4. An increasingly familiar feature of decisions in the fields of immigration and asylum is the inclusion of footnotes with links to websites. There were nine of these in the Secretary of State's decision in the present case. This phenomenon will be quickly recognised by both judges and practitioners. The FtT Judge did not engage in some kind of independent research exercise. Rather, as stated unequivocally in  of the decision:
"I accessed the background information relied on by the Secretary of State as set out in the footnotes to the refusal letter."
This was an entirely legitimate exercise, since the Secretary of State was relying on the source materials identified in the footnotes and, further, the latter contained the outworkings of the précis in the text of the decision.
Whilst, therefore, AM makes clear that a Judge who follows the links in the footnotes of the refusal letter will not be committing an error of law, the judgement does not condone the Home Office practice of failing to produce the documents upon which it relies in footnotes. You should however consult all of the source materials identified in the footnotes when preparing for the appeal, both to check that the sources do in fact support the proposition for which they are relied on by the Home Office, and in order to decide whether you need to produce evidence in response. Sometimes these linked materials will contain other evidence which is helpful to your client, or will assist in rebutting the Home Office's argument.