by Mark Henderson and Rowena Moffatt of Doughty Street Chambers
and Alison Pickup of the Public Law Project
~ 2018 Updated Edition ~
Summary of the claim
Rebutting the refusal letter
Country of origin evidence
28.1 Rule 4(3)(d) allows the Tribunal to require any party to provide submissions, and rule 14(1) states that the Tribunal may give directions as to the manner in which those submissions are to be given, and the timing of the submissions, including requiring them to be provided in writing.
28.2 Para 7.5 of the Practice Directions provides that the appellant will normally be directed to provide
a skeleton argument, identifying all relevant issues including human rights claims and citing all the authorities relied upon; and
a chronology of events;
28.3 Para 8.2(e) of the Practice Directions states that
the skeleton argument or written submission should define and confine the areas at issue in a numbered list of brief points and each point should refer to any documentation in the bundle on which the appellant proposes to rely (together with its page number)
28.4 If the parties are in other respects ready to proceed, it would seldom be reasonable for a judge to refuse to hear the appeal on its merits simply because the appellant had not produced a skeleton argument, still less a late skeleton argument. However, it is always valuable to start your appeal with a fair wind, and the value of a skeleton argument can be much more than simply demonstrating that you are anxious not to default on directions.
28.4A It is now common for representatives to hand up a skeleton argument at the start of the appeal hearing and judges often make no complaint about this. But even if you cannot comply with directions, you should make an effort to get the skeleton into the hands of the judge in time for pre-reading. Many hearing centres cannot be relied upon to get faxes sent the day before the hearing to the judge before the hearing starts. If you do fax it late, ensure you take copies. Even arriving early and asking the court clerk to hand it to the judge is preferable to handing it up at the start of the hearing.
28.5 Assuming a judge has done some pre-reading (i.e. read some papers before the hearing starts), he will have read the Home Office refusal letter if nothing else. While one hopes that he would discount the more outlandish points, there may be enough of substance (together with a misleading factual summary) to leave the judge with a negative impression of your case. You are not usually invited to make an opening speech. If the judge has nothing to set against the refusal letter when pre-reading, it will be closing submissions before you have the opportunity to rebut the refusal letter head-on.
28.6 If the judge has started with a negative impression of your case, that may affect his interventions during oral evidence. If his interventions leave your client and other witnesses feeling uncomfortable or believing that the judge is leaning against them, it may affect their confidence and the quality of their evidence. That in turn may influence the judge's assessment of their evidence and reinforce any negative impression. It should not, of course, happen this way. But by providing a skeleton argument, you ensure that the judge has an accurate factual summary, is alerted to the real issues, and that misleading allegations in the refusal letter are answered before they have an opportunity to infect the judge's view of your client.
28.7 To have this effect, your skeleton must stand out as a document worth the IJ's attention during what may be very limited pre-reading time. In Zarour v SSHD (01/BH/00078), the Tribunal said that:
One good thing can be said about [counsel's] skeleton argument... , which is that it was short enough to make it reasonably clear how he put his case... This is usually not so with the skeleton arguments of counsel in this field, which are all too often so intolerably prolix that they may be better described as well-fleshed corpses, doing more to conceal than reveal what the case is about.
28.8 Some appeals, of course, are so complex that they require lengthy skeleton arguments. But the lengthier the skeleton, the more important it is to demonstrate to the judge how the document is directed to answering the questions that he will have to answer - and is therefore worth prioritising. If you present a 30 page skeleton consisting largely of a 'cut and paste job' of generic legal and country submissions, the likelihood is that it will not get read (and will do your client little good if it is read).
• factual summary, highlighting matters which are relevant to the consequences of expulsion;
• summary of claims of breach of either Convention;
• response to the arguments set out in the Home Office refusal letter;
• further relevant legal argument;
• guidance on the expert and country evidence.
28.10 Given that the standard directions also require provision of written witness statements, it is unnecessary for the skeleton to reproduce a detailed account of your client's history. Rather, it should start with a summary of the most material and compelling facts in your case. These should always include the main events which caused your client to flee and which give rise to her present fears. You may also highlight any unusual factors which may grab the judge's attention, such as your client's particularly prominent position, or particularly disturbing treatment at the hands of the authorities. In a straightforward case, there is no need for this factual summary to extend beyond a few paragraphs. You can also refer to your chronology.
28.11 Set out concisely why your client's expulsion will violate the Refugee and/or Human Rights Convention and/or Art 15(c) of the Qualification Directive. The primary question is: what are the risks/consequences of expelling this person? Explain that in ordinary language. Then explain briefly how it will violate the UK's obligations. For example, 'The denial of medical treatment will constitute inhuman or degrading treatment (art 3) and/or a disproportionate interference with her private life in the sense of her moral and physical integrity (art 8).'
28.12 Go through the refusal letter identifying every discrete point then either accept it, dispute it, or dismiss it as irrelevant. You should not pass over points simply because they appear to be absurd. If the Home Office has dismissed the claim on unreasonable grounds, you want to emphasise that fact rather than treat it with a sort of benevolent acceptance. It does no harm to impress upon the judge that it is not acceptable for a meritorious case to be rejected on irrational grounds. The advantage of dealing with the refusal letter in detail in your skeleton argument is two-fold: it ensures that if the judge has the opportunity for pre-reading, he can immediately see how you will respond to the points raised in the refusal letter. Secondly, it ensures that the focus of your oral submissions can be on responding to points raised by the HOPO or arising out of the oral evidence, and addressing the judge's concerns (which he is more likely to be in a position to raise at the hearing if he has seen how you propose to respond to the Home Office's written case).
28.13 Some representatives deal with the refusal letter in a witness statement from the appellant. Often, there will be specific points that the appellant can make in evidence, and she should do so, and in that case your skeleton argument may simply refer the judge to the witness statement in relation to those points. Otherwise, it is your job to respond to the refusal letter. That is preferable to a witness statement purporting to be from the appellant but presenting arguments which obviously did not come from her. It also avoids the perception, often encouraged by the HOPO, that your client must personally have an answer for every allegation in the refusal letter (see also para 12.46).
28.15 Do not drop standard paragraphs into every skeleton argument setting out the leading authorities on the Refugee Convention. Nothing is more likely to put the judge off reading it. The standard directions issued at some hearing centres following a CMRH or PHR state that skeleton arguments should not recite basic propositions of refugee law. If there is a specific point to make about the application of an authority to the facts of your case, then explain what it is. For example, there is little point in including lengthy quotes from Karanakaran v SSHD  EWCA Civ 11 in every skeleton. However, you might need to explain how the Karanakaran approach (which is not always fully understood) should affect the evaluation of a particular piece of evidence.
28.16 If you are advancing an unusual or difficult legal argument, then you should set it out fully on paper. If an authority is genuinely relevant, then the relevant passages should be quoted rather than simply providing the references. The citation of authorities is discussed in the following chapter.
28.17 Grounds of appeal should have been sufficiently expansive so as not to limit the future development of the appeal (para 4.5). But by the time you draft your skeleton argument, you should be in a position to focus your submissions. Take a realistic view. If the accepted evidence is that pre-trial detention is accompanied by torture, it may be unnecessary to devote substantial effort to establishing that the trial will be unfair; if you get as far as establishing pre-trial detention, you should succeed on article 3. Conversely, if the evidence concerning torture in detention is sketchy, then you may well have to establish unfair trial.
28.18 In Dominguez v SSHD (00/TH/02692), the Tribunal said that:
1) [Representatives] should take steps to acquaint themselves with any relevant human rights decisions of the Tribunal or the courts.
2) They should not embark on arguments as to the position taken by Strasbourg jurisprudence without at least some rudimentary grasp of the relevant case law. Furthermore,... argument needs to be formulated and advanced in a plausible way.
28.19 The skeleton should offer a guide to the relevance of the documentary evidence that you have submitted. Set out the most relevant quotations in the skeleton (along with page references). This avoids the judge having to note these when you make your oral submissions. A report should normally be submitted in its entirety, even if you only intend to quote a small part of it. This is one reason why bundles will often far exceed the number of pages upon which you intend to rely. Particularly if your bundle is large, it is unlikely that the judge will have an opportunity to digest it whole. A document that sets out the key quotations for your case (for example, as to the prevalence of torture) can therefore substantially add to the persuasiveness of your bundle.
28.20 If you conduct a lot of appeals from a particular country which raise common issues, you may be able to reuse much of this material. But ensure that it is focussed on the issues that actually arise. It should not look to the judge like a 'generic' submission. However, in light of the fixed fee regime, it may be appropriate to produce standard notes on recurring issues. Explain to the Tribunal why you are doing this.
28.21 The chronology will normally consist of a summary of key dates (though a very detailed chronology may assist in a complex case). The dates will normally be taken from the witness statements. It should not include any dates that will have to be established by oral evidence. (All material facts should in any event be in the witness statement.) Some representatives add a proviso to the chronology to the effect that it is their own work and not evidence (in case the HOPO tries to put a mistake in the chronology to the appellant as an inconsistent statement).
28.23 Either way, the chronology is part of your case. It should tell your client's story in a sensible, straightforward and persuasive manner. The chronology of events should make sense to the Tribunal. It should not provoke unnecessary doubts at the outset. If the chronology states '15/11/16: escaped from last detention; 28/2/17: fled the country', the judge's first thought may be that there is an unexplained delay in departure. It is better to let the judge know, however shortly, that this is not the case by inserting an entry such as '16/11/16 - 27/2/17: remained in hiding with relative while family raised money to pay agent'.