by Mark Henderson and Rowena Moffatt of Doughty Street Chambers
and Alison Pickup of Asylum Aid
~ Newly Revised 2022 Edition ~
The expert's instructions
Documentation accompanying the instructions
Whether the expert should meet your client
The report itself
Sources and methodology
23.1 Instruct your expert as soon as possible. Do not leave it until days before the hearing. Even if delay does not place you in breach of directions, the more time you give an expert, the more impressive his report is liable to be - and vice versa. If you decide that your expert should give oral evidence (see chapter 25), it is also important to instruct him in time for you to make any necessary application to the court to have the case listed for his availability. If you are briefing counsel to present the hearing, do so in time to allow counsel to feed into the preparation of the expert evidence and advise on the report before it is disclosed. Under the reform procedure, you will need to consider whether to instruct an expert as soon as the notice of appeal is lodged given that you will want to put any expert evidence to be relied upon in the appeal before the Home Office at the review stage. If you need more time to obtain or finalise the report prior to the review deadline, you should request an extension from the Tribunal to enable you to do so. Anecdotally, the Tribunal has shown flexibility in granting extensions to permit expert evidence to be reviewed by the Home Office.
23.2 The expert must be clear as to what he is being asked to do and (as importantly) what he is not being asked to do. The Practice Directions (para 10.1) provide that 'A party who instructs an expert must provide clear and precise instructions to the expert, together with all relevant information concerning the nature of the appellant's case'. The representative and the expert both have a role to play in ensuring that the expert evidence meets the requirements of the court and is therefore well received by it. An expert is not a lawyer, and is not to be expected to do your job. In MOJ and Others (Return to Mogadishu) Somalia CG  UKUT 00442 (IAC), the Upper Tribunal explained the duties on lawyers:
In the realm of expert testimony, important duties are also imposed on legal practitioners. These too feature in the aforementioned Practice Direction. These duties may be summarised thus:
(i) to ensure that the expert is equipped with all relevant information and materials, which will include information and materials adverse to the client's case;
(ii) to vouchsafe that the expert is fully versed in the duties rehearsed above;
(iii) to communicate, promptly, any alterations in the expert's opinion to the other parties and the Tribunal, and
(iv) to ensure full compliance with the aforementioned Practice Statement, any other relevant Practice Statement, any relevant Guidance Note, all material requirements of the Rules and all case management directions and orders of the Tribunal.
These duties, also unqualified in nature, are a reflection of the bond between Bench and Representatives which features throughout the common law world.
The duties on legal representatives were reiterated by the Tribunal in R (on the application of Hoxha and Others) v Secretary of State for the Home Department (representatives: professional duties)  UKUT 00124 (IAC) - see para 23.28A. As noted earlier (para 22.6), you should always provide the expert with the relevant extract from the Practice Directions and the guidance at paragraphs 23-27 of MOJ, but this is not in itself likely to be enough to discharge your duties. You will need to read the report critically and be prepared to go back to the expert with the problems and queries you have identified. It will be very rare that an expert report will be ready to be sent to court in the form in which you first receive it.
23.2A Some representatives have adopted a practice of simply sending all the papers on the file to an expert with a request that he does a report, but without any further guidance whatever as to what is expected (see eg Anthropology and expertise in the asylum courts, Good, 2007, Routledge-Cavendish, pp. 146-8). This should never happen. In those circumstances, it is unsurprising that an expert does not do himself justice in the eyes of the Tribunal.
23.3 It is similarly unsurprising when simply asked to comment upon the appeal papers that the expert will suppose that he is being asked to reach a conclusion on whether your client is telling the truth or even whether she is a refugee. He should not ordinarily offer a conclusion on either question (see paras 22.14 - 22.32). By doing so, the expert only invites suspicion on the part of the Tribunal (however undeservedly) of those other opinions that he is entitled to offer.
23.4 It is up to you to frame your questions so that the expert is clear upon what issue his opinion is required. But it is neither necessary nor desirable to provide a mass of questions of such oppressive detail that the expert feels unable to fully develop his opinions on those matters which appear most relevant to him. It is, after all, part of the point of an expert that his training or experience enable him to recognise aspects of the case that you may have missed.
23.5 You need to consider what areas of the case would benefit from expert evidence (see chapter 20). You should explain the purpose of the report to the expert and set out clearly what questions you want him to answer.
23.6 Copies of correspondence between yourself and the expert, including instructions and draft reports, are normally privileged and an expert report need not include a verbatim account of either the expert's instructions or subsequent discussions. However, the report must 'contain a statement setting out the substance of all facts and instructions given to the expert which are material to the opinions expressed in the report or upon which those opinions are based' (Practice Directions, para 10.9(c)) Para 10.12 provides that
The instructions referred to in paragraph 10.9(c) [that is, those set out in the report] are not protected by privilege but cross-examination of the expert on the contents of the instructions will not be allowed unless the Tribunal permits it (or unless the party who gave the instructions consents to it). Before it gives permission the Tribunal must be satisfied that there are reasonable grounds to consider that the statement in the report or the substance of the instructions is inaccurate or incomplete. If the Tribunal is so satisfied, it will allow the cross-examination where it appears to be in the interests of justice to do so.
This reflects the position under the CPR. In MOJ and Others (Return to Mogadishu) Somalia CG  UKUT 00442 (IAC), the Upper Tribunal explained that:
The requirements of CPR 31 also featured in Lucas v Barking Hospitals NHS Trust  EWCA Civ 1102, where the emphasis was on CPR 31 and CPR 35. These provide (inter alia) that:
(i) a party may apply for an order for inspection of any document mentioned in an expert's report which has not already been disclosed,
(ii) every expert's report must state the substance of all material instructions, whether written or oral, on the basis of which the report was written, and
(iii) such instructions are not privileged against disclosure.
Laws LJ made the following noteworthy observation:
" As it seems to me the key to this case …. is the imperative of transparency, a general theme of the CPR but here specifically applied to the deployment of experts' reports. Thus the aim of rule 35.10(3) and (4) is broadly to ensure that the factual basis on which the expert has prepared his report is patent."
The intention in respect of the CPR was to find a balance between transparency as to the basis of instruction and permitting lawyer and expert to communicate reasonably freely. It has been almost unheard of for a civil court to order disclosure or permit cross-examination under this rule.
23.7 You should obviously ensure, regardless of the risk of disclosure, that your questions to the expert are fair and cannot be characterised as slanted or misleading: pose the question in a manner that you would not be embarrassed to have disclosed to the Tribunal. Note the warning in Y & Z v SSHD (Sri Lanka)  EWCA Civ 362 as to "the impropriety (and incidentally the damage that can be done to their clients' cases) of putting leading questions to experts who are required to advise impartially" (para 10).
23.8 The question may or may not be specific to your client. A general question might be whether those arrested at illegal demonstrations are likely to be recorded and of continuing interest to the authorities. A specific question might be whether the client's knowledge of the aims or structure of an organisation is consistent with her claimed involvement or what the chances are that such involvement will lead to her detention in the future. If the expert has been asked to comment on particular allegations in the refusal letter, then these allegations should be set out in the report along with the expert's comments.
23.9 You may wish the expert to consider alternative factual scenarios (in particular to cover the risk of the Tribunal making a blanket or partial adverse credibility finding in respect of your client's evidence). You could, for example, ask your expert to comment upon the degree of risk to your client:
• on the basis that her entire account is true;
• on the basis of just those facts for which there is corroborating evidence;
• and simply on the basis of her expulsion as a failed asylum seeker together with any facts which are undisputed such as her ethnicity.
23.10 Questions may be directed towards satisfying different tests in respect of different scenarios. You may consider, say, that if her account is accepted, your client is entitled to refugee status, but even if it is rejected, there will be issues under article 3.
23.11 Where your expert considers that your client will be at some risk even if part or all of her account is rejected, then it is important that he is instructed to set out that opinion so as to provide for this eventuality. You want to avoid having to ask the Tribunal to admit a supplementary expert report upon an application for permission to appeal or worse, being reliant upon further representations to the Home Office.
23.12 What is important is that the expert states clearly in his report upon what factual scenarios he has based each opinion (including where he has been asked to proceed on the basis that the entire account is true). Being clear about the scenario upon which he is commenting will protect him from the common allegation that he has unquestioningly accepted the appellant's evidence as true thereby exhibiting partiality. (Also check, however, that the report is not inadvertently phrased in a manner which suggests that you or your expert expect an adverse credibility finding to be made).
23.13 Explain the legal context of the question to the expert, not to encourage him to tailor his opinion to the caselaw but because some understanding of context will assist him in understanding what is relevant. For example, if his report is to assist in determining whether a proposed internal protection alternative will be unduly harsh, some basic explanation of the unduly harsh test will enable him to avoid wasting time formulating opinions on matters which will be immaterial to whether the test is met.
23.14 An expert can advise you on your preparation and conduct of the case as well as providing a report for disclosure. You might, for example, seek his comments on a document which your client has obtained from the country of origin and which you are unsure whether to submit (see further chapter 16). Traditionally, communications with an expert are privileged to the extent that he is acting in an advisory capacity rather than an expert witness. The Practice Directions (para 10.9(c)) require an expert to state only the 'substance of all facts and instructions given to the expert which are material to the opinions expressed in the report or upon which those opinions are based' [emphasis added]. If the expert who produces a report could not also advise privately on other issues, that would encourage the practice of solicitors instructing a second 'shadow expert' to avoid the risk of his advice being disclosed. However, the matter is not free from doubt. Any issue on which you ask your expert to act in an advisory capacity should be clearly differentiated from those issues that he will address as an expert witness.
23.15 The expert should, of course, be at liberty to conduct his own research and enquiries. His expertise may well enable him to do this more effectively and to pursue avenues which would not be available or apparent to a lawyer. Clearly, some lines of enquiry may risk jeopardising your client's confidentiality, most obviously where the expert proposes approaching contacts in the country of origin.
23.16 Emphasise to the expert that any case specific information that he is given is confidential unless you say otherwise. Give clear guidance as to what he is permitted to disclose when conducting his own enquiries, and in what circumstances he must revert to you for authorisation before releasing information. Alternatively, he may be able to advise you on further avenues for you to explore. Remember that you could be required to disclose any document to which the expert refers in his report.
23.17 Ensure that you have given the expert all the documentation he requires to form his opinion. The Practice Directions (para 10.1) provide that the expert should be provided with 'all relevant information concerning the nature of the appellant's case, including the appellant's immigration history, the reasons why the appellant's claim or application has been refused by the respondent and copies of any relevant previous reports prepared in respect of the appellant'. You should send him documentation in your possession which appears to undermine your client's case, as well as that which supports it. If it appears to the Tribunal that the expert was unaware of relevant material, it may give the expert's opinion less weight. The HOPO may submit that a report which comments upon plausibility (and is therefore relevant to credibility) cannot be relied upon unless the expert has considered all the statements and interview notes in the case.
23. 17A It is particularly important that medical experts, particularly psychiatrists whose assessment will be in part dependent on the appellant's account of her symptoms, are provided with all relevant documents. In SS (Sri Lanka) v SSHD  EWCA Civ 155, the Court of Appeal criticised the appellant's solicitors for not providing their expert with all relevant documentation, including the adverse findings made at a previous appeal hearing. They emphasised that:
It is essential that those who are asked to provide expert reports, be they medical or otherwise, are provided with the documents relevant to the matters they are asked to consider. Failure to do so is bound to lead to the critical scrutiny of the expert's report, and may lead to the rejection of the opinions expressed in that report, as it did in this case. (para 30)
23.18 The expert should have all the documentation that will be before the Tribunal unless it is plainly irrelevant to the issues raised in his instructions. Err on the side of caution. Where the documentation is voluminous, you can point in your instructions to what you consider most relevant. By providing it all, you ensure that he has had the opportunity - and more importantly is seen to have had the opportunity - to form his own view. An additional benefit of providing him with all your documentation is that he may through his expertise recognise aspects of a document (good or bad) or potential implications that you had missed.
23.19 Where the expert is not familiar with asylum appeals, give him some explanation of the standard documents and their purpose. Asylum interview notes may appear to you to be self-explanatory, but the expert may nevertheless appreciate an explanation of the purpose of the interview, at what stage it comes in the determination process, who conducts the interview, who attends etc. Whenever the provenance and relevance of supporting documentary evidence is not obvious on its face, this should be explained.
23.20 If you have not made up your mind whether to rely on a particular document, ask him to revert to you before referring to it in his report (any document to which he refers is potentially disclosable). Where witness statements are still in draft form, point this out to the expert. If he needs to refer to a statement in his report, it should be delayed until the final version of the statement is available.
23.21 HOPOs have been known to suggest that a report from a country expert is less reliable because the expert has not met the appellant. With certain exceptions, this allegation is likely to be misconceived.
23.22 The main exception is where an expert has been instructed to give an opinion on your client's ethnicity/nationality. He will often need to interview her in order to form a view. You might also consider a meeting where the Home Office has alleged that your client's political knowledge is inconsistent with the extent of her claimed involvement. The most effective way for an expert to assess political knowledge may be to interview her, particularly where the asylum interview has been woefully inadequate. Many social scientists are now trained and experienced interviewers.
23.23 But in many other cases, a meeting with the client does not assist an expert in reaching an opinion on any question which is open to him, and it may increase the temptation to express an impermissible conclusion on whether your client is telling the truth. Since his role is to provide independent assistance to the court, a separate meeting with the appellant might even detract from that important appearance of impartiality even though nothing improper will have occurred. If he attends the hearing, your expert will of course have the same opportunity as the Tribunal to see your client give oral evidence (see para 25.30).
23.24 The expert may well ask questions about your client's history upon which you have to revert to your client, and you should seek full answers to such questions. (He may well see relevance in matters which you did not think were important.) And there is nothing to prevent them talking prior to the hearing where your expert attends court. But a formal meeting for the purpose of informing the report is often of dubious value. Generally, unless the expert needs to see your client in order to form his opinion, he should not do so. His report should always say whether or not he has met the client.
23.25 The Practice Directions (Para 10.8) state that:
10.8 An expert's report should be addressed to the Tribunal and not to the party from whom the expert has received instructions.
It must look like a report and should carry a heading such as 'Expert Report for presentation to the Tribunal in the appeal of ....' It should not be in the form of a letter addressed to you (or to anyone else). Apart from the Tribunal wanting this level of formality, it again helps focus the expert's mind on the tone that is appropriate.
23.25A As to the contents of the report, the Practice Directions state that:
10.9 An expert's report must:-
(a) give details of the expert's qualifications;
(b) give details of any literature or other material which the expert has relied on in making the report;
(c) contain a statement setting out the substance of all facts and instructions given to the expert which are material to the opinions expressed in the report or upon which those opinions are based;
(d) make clear which of the facts stated in the report are within the expert's own knowledge;
(e) say who carried out any examination, measurement or other procedure which the expert has used for the report, give the qualifications of that person, and say whether or not the procedure has been carried out under the expert's supervision;
(f) where there is a range of opinion on the matters dealt with in the report:
(i) summarise the range of opinion, so far as reasonably practicable, and
(ii) give reasons for the expert's own opinion;
(g) contain a summary of the conclusions reached;
(h) if the expert is not able to give an opinion without qualification, state the qualification; and
(j) contain a statement that the expert understands his or her duty to the Tribunal, and has complied and will continue to comply with that duty.
10.10 An expert's report must be verified by a Statement of Truth as well as containing the statements required in paragraph 10.9(h) and (j).
10.11 The form of the Statement of Truth is as follows: "I confirm that insofar as the facts stated in my report are within my own knowledge I have made clear which they are and I believe them to be true, and that the opinions I have expressed represent my true and complete professional opinion".
It is important that your expert's report complies with this guidance but it is not fatal if it does not. In RB (Somalia) v SSHD  EWCA Civ 277, the Court of Appeal agreed with the Upper Tribunal that the fact that linguistic analysis reports relied on by the Home Office did not comply with the Practice Directions on expert evidence was not "of itself a reason to give such reports less weight". However, Moses LJ (with whom Rix LJ and Briggs J agreed) said that:
... the Practice Directions relating to experts are of importance in safeguarding the subject of the report and in ensuring the integrity of the evidence. The mere fact that an initial report is obtained for the Secretary of State, for example, and not for a tribunal is no reason not to have well in mind the protection afforded by the Direction. For example, it remains of importance to know the nature of the instructions given to the expert and that the expert evidence should be an independent view uninfluenced by the source of the instructions or pressure of any sort. The expert is required to provide an objective, unbiased opinion on matters within the expert's expertise. An expert must not assume the role of an advocate. Such principles are vital whatever the circumstances in which the report was obtained. (para 15)
In SSHD v MN and KY (Somalia)  UKSC 30, Lord Carnwath agreed that it was not fatal that Sprakab reports did not comply with the terms of the Practice Directions and cited with approval the observation of Lord Eassie in the Inner House of the Court of Session that:
...in the end one naturally has to consider whether, in substance, the tribunal in question has been provided in the case before it with expert evidence which the tribunal can be satisfied is based upon an appropriate and adequate expert knowledge, given with the neutrality required of the expert, unencumbered by views falling outwith his field of expertise.
See too PP (female headed household; expert duties) Sri Lanka  UKUT 00117 (IAC), in which the Upper Tribunal deprecated the failure to comply with the requirements of the Practice Directions as to the content of the reports (and in particular the failure to make clear the expertise and methodology of the witnesses on the face of the report), but nonetheless accepted the writers' expertise and admitted their evidence; and AAW (expert evidence – weight) Somalia  UKUT 00673 (IAC) in which it observed:
A witness, if put forward as an expert witness, will not be treated as such if he or she does not meet the requirements demanded by the Senior President's Practice Direction. That does not mean that his or her evidence falls to be disregarded, but any opinion offered that is unsupported by a demonstration of the objectivity and comprehensive review of material facts required of an expert witness is likely to be afforded little weight by the Tribunal. In particular, a witness who does not engage with material facts or issues that might detract from the view being expressed risks being regarded as an informed advocate for the case of one of the parties to the proceedings rather than an independent expert witness.
23.25B A common focus of criticism of expert reports by HOPOs relates to the references in the report. You should check that the report is referenced in a scholarly way, that is, at the very least, including the full name and date of any source and, if available online, the URL. If a central proposition in the report is referenced to a particular source which is accessible online, you should check the substance of this link. If, on the face of the webpage, its contents do not support the proposition made by the expert, this will be vulnerable to criticism and may reduce the weight the Tribunal places on the report. A not infrequent criticism made by HOPOs is that a proposition made without a reference should be given little weight. This is often misconceived: the expert is entitled to give his own evidence based on his own knowledge and expertise but, importantly, the report must indicate where this is the case (see Practice Directions, para 10.9(d)).
Preparing the report for disclosure
A report produced by even the best-briefed, best-informed expert may need some refinement before it is ready for disclosure to the other side.
This must not mean asking the expert to modify or distort his opinions. This section is solely about changes it is wholly legitimate to ask him to make for the sake of accuracy, completeness, clarity or consistency.
Once you have received the initial report, you will need to go through it, and refer it back to the expert for clarification if necessary.
Some reports may go through more than one draft. Make sure that your expert differentiates each version by dating it.
Do not accept any report at face value. Consider whether the expert's views are supported by the facts. Are there factors not covered? Are you convinced by the argument? If not, ask for the argument to be expanded
If it is favourable, assess it critically. Is the expert painting too rosy a picture of your case? What has been left out? Have all the issues been addressed? Where is the evidence to support what the expert says? Are the lines between fact and opinion blurred? Do the expert's comments stray outside the field of expertise, as determined by the expert's qualifications and experience?
If there are inherent weaknesses in your case, consider whether the expert addresses these in the report. It is better for potential difficulties to be acknowledged and dealt with by reasoned arguments, rather than omitted. In any event, never be tempted to allow your expert to mislead the court.
You also need to check the report for clarity. Is it understandable to someone with no expertise in this particular field and no prior knowledge of the case? Is everything explained clearly and simply? You and the expert should be thinking of how you can help the judge by making things clearer. Has the expert avoided jargon and technical language as much as possible? Where technical terms have to be used, are they properly explained?
Although you can and should ask an expert to make necessary changes to the report, you must be careful not to overstep the mark by writing it yourself. Expert reports must not be 'settled' by the lawyers. Check it for consistency, even details, such as dates and times. Inconsistencies may be used to undermine the expert. You should also check spelling, punctuation and grammar.
In Whitehouse v Jordan, Lord Denning complained that a medical report had been settled by counsel. When the case went to the House of Lords, Lord Wilberforce stated:
'While some degree of consultation between experts and legal advisers is entirely proper, it is necessary that expert evidence presented to the court should be, and should be seen to be, the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation.'
23.27 Unfamiliarity with expert evidence in this jurisdiction can lead to misunderstanding and unease about this process on the part of both experts and representatives. That sometimes results in experts being asked to make inappropriate changes, but more frequently has the opposite result whereby experts decline to engage in any discussion of the report and representatives feel awkward about making quite legitimate suggestions.
23.28 It is your job to ensure that the report properly addresses the issues in a manner which will be of assistance to the Tribunal. There is nothing wrong with raising a concern or putting a point to him. You may ask him if he agrees or disagrees with a particular proposition, as long as you do not ask him to misrepresent his own opinion.
23.28A In R (on the application of Hoxha and Others) v Secretary of State for the Home Department (representatives: professional duties)  UKUT 00124 (IAC) the Tribunal commented on the duties of legal representatives to check reports received from experts for accuracy:
17. We are clear…that it is the role of a legal representative to ensure that any expert report accurately reflects the way in which the information in it came to be obtained. This is not something which can be simply left to the expert. Reports must be read and checked for accuracy on this point by the representative, and indeed for anything else within the knowledge of that representative. Representatives have professional duties in this respect and are not simply a postal service via which this evidence reaches the Secretary of State. The duties of experts to be clear about their methodology are set out in PP (female headed household; expert duties) Sri Lanka  UKUT 00117 (IAC). We find that the duty on representatives to ensure that this was done was not carried out in the [instant case] … The report misleadingly states that the assessment took place on a date and at a place/way which was not accurate.
The Tribunal added in the headnote that:
(4) Failure to carry out properly professional duties [in relation to expert evidence], inter alia, may result in the Upper Tribunal referring the legal representative / organisation to the relevant regulatory body.
23.29 If the expert will not be giving oral evidence (see paras 25.1-25.5), then he will be unable to defend the report in cross-examination. It is especially important in that case to put yourself in the position of the HOPO (and judge) and consider whether any aspect of the report is inadequately explained or there is any ambiguity which might be exploited, and to ensure that the expert addresses those concerns in the final version of the report. As demonstrated by the Court of Appeal's comments in MS (Zimbabwe) v Secretary of State for the Home Department  EWCA Civ 941, the Tribunal is not required to accept the conclusions of an expert just because they are the conclusions of an experienced expert (see paras 61-63). It is important, therefore, that you test the conclusions of the report and consider, in particular, whether they are rational and supported by material cited in the report.
23.30 You will occasionally have to decide whether to submit a report which has both favourable and unfavourable aspects. You should not disclose the report if it does more harm than good. You cannot be compelled to disclose a report which you do not rely on and it has been held by the Court of Appeal that a direction which requires you to 'file and serve' a report must be read subject to an implied 'if relied upon' clause: Watts v Oakley  EWCA Civ 1905. If the report is so damning that you feel you can no longer present your client's case, then the appropriate course will be to advise your client so that she can either withdraw her appeal or seek alternative representation.
Has the expert clearly answered each question you asked?
Has he cited sources where appropriate or else explained why he cannot cite sources or otherwise how he has come to his conclusion?
Is his conclusion justified by his reasoning?
Does his report raise further questions in your mind? Has he expressed an opinion that he is not entitled to express? Is there irrelevant material or emotive comment?
Does he clearly state the factual premises upon which he is commenting?
Is information that he has reproduced from the material supplied to him, including the client's statement, accurate? (The HOPO may suggest that a mistake shows carelessness or, unjustifiably, a discrepancy on the part of the appellant going to credibility.)
23.32 It should be apparent from the report why the author's opinion should be preferred to that of someone (including the HOPO, Home Office decision-maker or the author of the Home Office's country report) who lacks his expertise.
23.33 Particularly where the expert has a history of campaigning or is connected to a campaigning organisation, it is important that he avoids any suspicion of bias. The report's account of his qualifications and experience should highlight factors which support his ability to give an independent opinion, such as advising bodies which are manifestly independent, or bodies which take different approaches and governments. See further chapter 21.
23.34 The source(s) for any statement should be cited wherever possible. The Practice Directions (para 10.9(b)) provide that the report should 'give details of any literature or other material which the expert has relied on in making the report'. If the report is available on the Internet, the most appropriate means of providing the necessary detail is to include the web address. If it is not available on the Internet, and you do not intend to include it in the trial bundle, the expert should include a note indicating that the material can be provided on request. Such an offer is likely to improve the impression of the expert evidence.
23.34A The Tribunal has recognised that experts in this jurisdiction may not be able to identify all their sources. Problems do not only arise where identification may place the source at risk. Much knowledge in international affairs is exchanged through seminars and conferences held under the Chatham House Rule (whereby the information can be disclosed, but the identity and affiliation of the source is confidential). To ignore the knowledge that an expert acquires in this way will be unreasonable (as well as potentially dangerous).
23.35 The basis of an opinion may be accumulated experience over years or decades of study of the country. It is perfectly legitimate to prefer the opinion of a highly qualified person who has long studied the country to someone without these attributes.
23.36 What is important is that the expert explain how the information is derived, its reliability, and, if applicable, why he is not able to give specific sources. In so doing, he should not assume even the most basic knowledge on the part of the Home Office. In R (Es-Eldin) v Immigration Appeal Tribunal (C/2000/2681), the Court of Appeal was plainly disturbed that an official representing the Home Office in an asylum appeal (and unhappily also the appellant's representative) had not heard of the Royal Institute for International Affairs (Chatham House). As a result, the adjudicator (who also did not know what it was) rejected the expert evidence.
23.37 The Tribunal gave the following guidance in Zarour v SSHD (01/BH/00078):
When it comes to quoting sources, a measure of judgment has to be exercised, both by country experts in what they do, and by adjudicators in what they expect...
What we suggest on this point is that country experts should a) only use confidential sources where no open ones are available; b) give the best indication they can of the general nature of the source; and c) make it clear why it must remain confidential, and why no open source can be used. The rest must remain a matter of judgment for them and adjudicators.
23.38 The expert may regard the confidential source as adding weight to (or more authoritative than) the publicly available sources. Indeed, his value as an expert may rest in part upon his access to sources that are not available to the public. In those circumstances, it is suggested that he quote the publicly available sources and explain so far as possible the additional corroboration he has obtained from confidential sources.
23.38A The Tribunal has made clear that it would be disproportionate to require an expert to provide translations of all material on which he relies which is in a foreign language: Cudjoe (Proxy marriages: burden of proof)  UKUT 00180 (IAC).
23.38B The expert should also explain the methodology used to prepare the report. Where direct interviews with other individuals are relied on, the circumstances in which those interviews took place should be explained. In PP (female headed household; expert duties) Sri Lanka  UKUT 00117 (IAC), the Upper Tribunal underlined the importance of the expert's methodology being clear from the face of the report.
23.39 The report should not contain emotive or partisan language - regardless of whether the expert is within his area of expertise. It exposes him to the allegation that he is straying into the role of an advocate rather than providing independent assistance to the court. In SW (lesbians – HJ and HT applied) Jamaica CG  UKUT 251 (IAC), the Home Office sought to criticise an expert's impartiality because of the language which he had used in newspaper articles, for example describing the Jamaican government as "intolerably corrupt and degenerate". The Tribunal dismissed these objections, observing that "Such highly emotive and personalised language is a far cry from that which we would expect from a country expert", but pointed out that it did not know the style of the respective publications and that the expert's "reports for the APCI and for the Tribunal are in restrained and proper language and we are not persuaded that his views are so unreasonable or intemperate in relation to the Jamaican government that we should give them no weight" (para 92). The need to appear detached may not come naturally in this jurisdiction. One would hope that no-one, whatever his expertise, would be impartial about whether a refugee should be refouled to face death or torture. It is unsurprising that experts form strong views, given the juxtaposition they see between the cavalier absurdity of some Home Office arguments and the unique gravity of the matters in hand. The expert is not expected to divorce himself from humanity. Nevertheless, he must attempt to keep such feelings out of his report. Where emotive comments have crept in, suggest that they are removed. You must not, however, rewrite passages of the report.
23.40 Any factual premise on which the comment is based should be expressed. If he has inadvertently included phraseology which suggests that he has assumed the truth of the appellant's account rather than proceeded on a given premise, point this out to him.
23.41 Any mistake in the expert's summary of your client's evidence may take on an unjustified significance. A mistake as to the date of some event in your client's history will usually be a slip on the expert's part, but a HOPO will be all too eager to present it as a significant discrepancy even where the expert has never met your client or been provided with any material which is not before the court. Though the judge should recognise such mistakes as carelessness, it can only detract from the overall impression he forms of the expert evidence. Some experts, particularly those who frequently write reports for similar cases, for example Iranian Kurdish supporters of political parties, will recycle generic parts of their previous reports. You will need to be extra vigilant in these circumstances that the expert has not mistakenly confused the facts of two different cases or copied and pasted an incorrect name or other information. Unfortunately, these kinds of mistakes are very common.
23.42 It is often unnecessary for the expert to reproduce your client's history, rather than simply to confirm that he has read her statement. It can encourage criticism that the expert has inappropriately identified with your client (particularly if emotive language has crept in) or approached the case with an unquestioning acceptance of her account as true.
23.43 Similarly, check that there is no unexplained inconsistency between the expert report and other country evidence which you propose submitting including, in particular, any other expert evidence. Submitting more than one expert report on the same topic can backfire if the experts highlight different factors when responding to the same question: this has in the past been sufficient to result in each report being rejected on the ground that they are inconsistent with each other! Where the experts have in fact been instructed to address different questions, you should check that this is apparent from their reports. If the questions overlap, then you may have to raise with each of them the points taken by the other. If the disagreement is apparent rather than real, then this should avoid giving a misleading impression of inconsistency. If the disagreement is real, then you should normally go with the expert you consider the more reliable rather than submitting inconsistent expert evidence. You cannot ask an expert to alter his opinion.
23.44 Unless the expert's circumstances make it impossible, the court should receive a legible well presented copy of the report. Check punctuation, grammar, and spelling. Paragraphs should be numbered so they are easy to identify. Any photographs or diagrams should be clear and clearly labelled. Remember that if you are not calling your expert to give oral evidence, the report will be all the Tribunal has upon which to form an impression.
23.45 Consider seeking a direction that the Home Office indicate in advance whether the expert report is disputed and, if so, on what grounds it is disputed. This can be raised at the CMRH, where there is one. In the absence of a direction, the Home Office may challenge the expert evidence only after the hearing is underway. If your expert has not attended the hearing, the Tribunal will be unable to hear his response to such a challenge. This may necessitate an adjournment application to obtain the expert's response. If the hearing is not adjourned and it transpires that the expert can show that the Home Office's challenge was misconceived, the matter may have to be pursued on appeal. It is far better for all involved if the Home Office is compelled to disclose any challenge in advance of the First-tier Tribunal hearing. In Cudjoe (Proxy marriages: burden of proof)  UKUT 00180 (IAC), the Upper Tribunal was rightly critical of the Home Office's complete failure to engage with expert evidence which had been served on it months before the hearing. It found that in circumstances in which the Home Office had never suggested before the hearing that it had any questions to put to the expert, his failure to give oral evidence had no material bearing on the weight to be attached to his report.
23.36 Under the reform procedure, you should file and serve any expert evidence relied upon at the same time as your Appeal Skeleton Argument. It is advisable to request that the Home Office considers the expert evidence in its review, noting that in the absence of engagement with this evidence, the review will be unlikely to be 'meaningful' as required by the standard directions. If, upon receipt of the Home Office review, you find that it contains a standard passage to the effect that the Home Office 'reserves its position on your client's expert evidence and further submissions may be made at the hearing', it may be useful to request a CMRH to deal with the Home Office's failure to make its position on your evidence clear in advance. Alternatively, you could request a direction that the Home Office provide its position on your expert evidence in writing within a timeframe that would permit you, if necessary, to obtain the expert's response to any criticism.