by Mark Henderson and Rowena Moffatt of Doughty Street Chambers
and Alison Pickup of the Public Law Project
~ 2018 Updated Edition ~
Not calling the appellant when credibility is disputed
30.1 It is your client's case, and assuming she is capable of giving instructions, she may instruct you to call her, whatever you think of the idea. But part of your job is to offer advice on this question based on your experience.
30.2 Your client may have given a full account in her asylum interview and a statement submitted to the Home Office. The refusal letter may not have challenged her credibility, but instead alleged that on the basis of her account, her expulsion will not engage the UK's obligations. If her credibility has not been put in issue, and she has nothing material to add to the interview notes and written statements which were before the Home Office, then there may be little point in calling her.
30.3 It may also lead to unnecessary problems. Some HOPOs appear to regard it as their job to cross-examine if given the opportunity, regardless of its relevance to the matters in issue. To call your client when credibility has not been challenged may simply prompt an aimless fishing expedition by the HOPO in which he will require your client to regurgitate evidence she gave long ago in the apparent hope that with the passing of time, the evidence will not come out exactly the same. It could also result in an adverse credibility finding by the Tribunal, based on an assessment of demeanour or mannerisms which are in fact explained by cultural differences or simply personality. If credibility is not challenged, then there is nowhere to go on credibility except downhill.
30.4 If you serve a witness statement for the appeal which contains new information (or even repeats old information in different form), the HOPO may use the new witness statement to suggest that matters have moved on from the decision letter, credibility is now in issue, and he wishes to cross-examine on the fresh statement. If a satisfactory statement was submitted to the Home Office in support of the initial claim and there is no need to provide further information to update it or address the refusal letter, you can simply adopt the initial statement rather than serving a redrafted witness statement.
30.5 Obviously, if further evidence is needed from the appellant about her history in order to counter the Home Office's arguments on risk, a new statement will be required. But if the Home Office did not challenge an initial statement, it can often do more harm than good to serve a new witness statement simply repeating the original information in more polished form.
30.6 If you are not calling your client to give oral evidence because credibility has not been put in issue, you should explain this at the outset of the hearing. This will give the judge the opportunity to indicate if he has developed his own concerns about credibility on the material before him, so that you have a proper opportunity to deal with these. Depending on the nature of any concerns, you may need to reconsider whether to call the appellant.
30.6A The Joint Presidential Guidance Note (No 2 of 2010) on Child, vulnerable adult and sensitive appellants advises judges to review at the start of the substantive hearing whether oral evidence is required (para 8) and that:
Agreement between the parties in advance of oral evidence as to the matters agreed or in dispute enables questioning to be focussed, sensitive and minimises potential trauma. (para 9).
30.7 Note that where the HOPO concedes that credibility is not in issue (as opposed to the refusal letter not having challenged it), the Tribunal is not entitled to go behind that concession regardless of what concerns he may express (Carcabuk & Bla v SSHD (00/TH/01426)). The refusal letter seldom expressly accepts credibility. Whether it is worth trying to elicit that confirmation from the HOPO will depend on the strength of the case and on the HOPO. If credibility is not challenged in the refusal letter, it is normally worth trying to establish at the CMRH that credibility is not in issue. Sometimes, when raised at the start of the full hearing, the question appears to so discomfort the HOPO that he starts attempting to formulate grounds for putting credibility in issue, despite the fact that no point was taken by the Home Office.
30.8 If the HOPO does attempt to put credibility in issue at the start of the hearing, you should question his justification for doing so, especially if it was established at the CMRH that the Home Office had no amendment that it wished to make to the refusal letter. You should also seek an indication of which parts of the evidence the Home Office is now said to dispute and why, so that you can consider your position. Occasionally, the HOPO refuses even to indicate on what ground he now claims that credibility is in issue. You then have to decide whether to tender your client for cross-examination merely so that the HOPO can embark on a fishing expedition of indeterminate length in the hope of finding something he can offer as a reason for disputing credibility.
30.9 Despite the inappropriateness of such practices, you should be wary of not calling your client in such a situation. The danger is that the Tribunal may reach an adverse credibility finding upon matters which were not aired in evidence at the hearing. The best course might be to indicate your willingness to tender your client for cross-examination but also indicate your concerns about doing so when the HOPO purports to dispute credibility without notice, and without offering any grounds for doing so. Given that "The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly", and that this includes "avoiding delay, so far as compatible with proper consideration of the issues" (Procedure Rules, r.2(1) and r.(2)(e)), the Tribunal may agree that lengthy but irrelevant cross-examination is an abuse of court time (see para 36.31).
30.9A For guidance on the correct approach where your client has been removed before the appeal hearing, pursuant to a "clearly unfounded" certificate under s94 of the 2002 Act or in an Article 8 appeal certified under s94B, see the discussion in chapter 3.
30.10 If credibility is put in issue in the refusal letter, most representatives will choose at least to tender their client for cross-examination, however flimsy the basis upon which credibility has been disputed. If, however, your client is disturbed, incoherent, or repeatedly inconsistent, she may have psychological problems which would render it inappropriate for you to tender her. In such a situation, you should obviously arrange for a medical report and, if appropriate, treatment (see chapter 26).
30.11 If the medical examination indicates that your client has psychological problems such that she cannot be expected to give accurate and consistent evidence, or that to have her cross-examined would pose significant risks to her mental well-being, then you will be justified in not calling your client. A medical report should be submitted explaining the position. In Y and Z (Sri Lanka) v SSHD  EWCA Civ 362, the expert evidence was that giving evidence would be retraumatising and undermine the appellants' treatment. Sedley LJ observed:
With all possible respect, I do not understand how an advocate with such a report in his or her hands could responsibly tender an appellant for examination and cross-examination in proceedings in which the genuineness and intensity of their fear was an issue. (para 25)
30.12 If a medical examination does not disclose any recognised condition but you nevertheless think that there is little prospect that your client will do herself justice in cross-examination, then the decision whether or not to call her is far more difficult. Carnwath LJ has observed that 'From a human point of view, appearing in front of a tribunal in support of an asylum claim must be a gruelling experience at the best of times': (HF (Algeria) v SSHD  EWCA Civ 445, para 26).
You have to ask yourself how you think you are advancing your client's case by calling her in circumstances where your best assessment is that oral evidence is more likely to harm than assist your case. A judge is not entitled to base an adverse credibility finding on the fact that the appellant was not tendered for cross-examination (see e.g. Kaleem Ahmed, SM (credibility issues-absence of appellant) Iraq  UKIAT 00279). But the absence of oral evidence does not preclude an adverse credibility finding, and there is a risk that the judge may take points which might have been explained had oral evidence been given. It may also make the judge suspicious of your client, even though he is not entitled to rely on that suspicion.
30.13 If you decide not to tender the appellant for cross-examination, you are still entitled and obliged by the standard directions to submit a written witness statement. The Tribunal is obliged to reach a proper assessment of the credibility of that evidence. It is all the more important in those circumstances that the statement should pre-empt foreseeable challenges (para 12.53). You should also invite the Tribunal to raise any points of concern so that you can deal with these in submissions.
The Administrative Court has held that there is no general rule against admitting statements from a witness who is not called to give oral evidence (although depending on the nature of the dispute, the tribunal would be expected "to take into account the fact that the evidence had not been tested by cross-examination" ; Kataria v Essex Strategic Health HA  EWHC 641  3 All ER 572) However, you cannot call your client to give any oral evidence without her being available for cross-examination: GY (refusal to allow cross-examination) Iran  UKIAT 00264
30.14 It is open to the HOPO to apply for a witness summons to compel your client to give evidence. In SSHD v Prendi (01/LS/00060), the IAT stated that:
Proceedings before the Appellate Authority are civil proceedings and (save where special provision is made) must be regarded as governed by the ordinary principles and practice relating to civil proceedings... [P]arties to civil litigation are competent and compellable... There is... no doubt in our view that the Home Office Presenting Officer was entitled to call the claimant as a witness if she chose to do so.
30.15 However, the same rule will apply to the HOPO as would apply to you if you sought a witness summons. The appellant will be the HOPO's witness, so he may not cross-examine (see para 9.43). Though the Tribunal has power to summons a witness of its own motion, it should not do so simply to avoid that rule. The IAT stated in Prendi (01/LS/00060) that:
What [the HOPO] could not do, of course, was call [the appellant] in order only to cross-examine him; because a party cannot generally speaking cross-examine his own witness. We do not think it would be right for the Adjudicator (or the Tribunal) to call a party as a witness with the sole aim of enabling cross-examination to take place and so assisting that other party to win.
30.16 It is highly unlikely that the HOPO will apply for a witness summons against the appellant. But though he is entitled to apply for one, the dicta in Prendi (01/LS/00060) should not be understood as indicating that the Tribunal is obliged to grant it. Clearly, if medical evidence indicates that it would be inappropriate for your client to give evidence, you would oppose the HOPO's application, and it is unlikely that the Tribunal could reasonably grant it.
30.17 If your client is a child, particular considerations apply to deciding whether or not to call her. Further, note that the Senior President of Tribunals' Practice Direction on Child, Vulnerable Adult and Sensitive Witnesses provides that:
A child, vulnerable adult or sensitive witness will only be required to attend as a witness and give evidence at a hearing where the Tribunal determines that the evidence is necessary to enable the fair hearing of the case and their welfare would not be prejudiced by doing so. (para 2)
See paras 6.23-6.23A and 6.27 for seeking directions where you intend to call a vulnerable appellant (or other witness) and 11.22-11.32 for further advice on representing vulnerable appellants and those who may lack capacity to give you instructions.
30.18 The same sort of considerations as are discussed in this chapter can apply when deciding to call oral evidence from witnesses other than the appellant. This is discussed further in chapter 15.