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Narrowing the issues and seeking disclosure

Chapter number:
9
Section:
Procedure
Last updated:
15 January 2021

9.1 This jurisdiction is adversarial. The Tribunal has encouraged the parties to define and narrow the issues in dispute. The Procedure Rules are designed to facilitate that. Fairness in any event entitles you to know the opposing party's case. However, appellants (and the Tribunal) have faced endemic, indeed systemic obstacles in persuading the Home Office to disclose its case on the relevant issues with sufficient clarity sufficiently in advance. The reform procedure, with its emphasis on agreement of the issues at a pre-listing stage and a Home Office 'meaningful' review, may lead to some improvement in clarifying the case your client has to meet. However, its success will depend on the active engagement of the Home Office.

The CMRH, amendment of the refusal letter, 'meaningful review' and Home Office skeleton arguments

9.2 The Home Office routinely argues that it need not produce a skeleton argument setting out its case because the refusal letter fulfils that role. Para 8.2(e) of the Practice Directions requires that a skeleton argument should 'define and confine the areas at issue'. The Tribunal has directed that the refusal letter should state exactly what is and is not in dispute. This may not always be clear from the decision letter (para 1.3). One paragraph of the refusal letter may even rely upon facts which another paragraph appears to dispute.

9.2A Under the reform procedure, an 'active' or 'meaningful' review is built into the pre-listing appeal stages. Under the standard directions for cases started on or after 22 June 2020, the Home Office review should be completed within 14 days of the appeal skeleton argument (ASA) and Appellant's bundle being uploaded on the online case management system. The standard directions say the following as to the review:

Within fourteen days of the ASA being provided the respondent must undertake a meaningful review of the appellant's case, taking into account the ASA and appellant's bundle, providing the result of that review and particularising the grounds of refusal relied upon.

Pro-forma or standardised responses will not be accepted by the Tribunal. The Review must engage with the submissions made and the evidence provided to the Tribunal. (Emphasis in original)

9.2B The Home Office claims to have invested significant resources into the review process, including the instruction of barristers to conduct the work. However, some reviews simply adopt the refusal letter and fail to comply with the requirement in the standard directions that the review engage with the submissions made in the ASA. Whilst the Tribunal may refuse to accept a review that does not comply with the standard directions, ultimately it can impose little by way of sanction for failure to comply. The Home Office is unlikely to be concerned by the exclusion of a review which merely adopted the refusal letter. Non-compliance by the Home Office will, however, be likely to build delay into the pre-listing process.

9.2C If your client's refusal letter is unclear and the case falls within the reform process, you should raise these deficiencies in your ASA and request that the Home Office review remedies this. If, following the Home Office review, the issues remain unclear, you should request a CMRH.

9.3 While the refusal letter is problematic enough as a guide to the Home Office's position at the date of the decision, it is no guide at all to its position on subsequent developments. The Home Office often fails to serve any response to post-decision submissions and evidence.

9.3A The Tribunal Procedure Committee has responded to concerns about Home Office practice in this regard by imposing a new requirement on the Home Office in rule 24(2) of the 2014 Procedure Rules that:

The respondent must, if the respondent intends to change or add to the grounds or reasons relied upon in the [notice of the decision to which the notice of appeal relates or other document giving reasons for that decision], provide the Tribunal and the other parties with a statement of whether the respondent opposes the appellant's case and the grounds for such opposition.

Rule 24(4) requires this notice to be provided, in writing, within 28 days of the Respondent being served with the notice of appeal.

9.3B In the Committee's response to the consultation on the draft Rules in which it explained its decisions on the Rules as enacted, it explained that:

78. The TPC concluded that, in principle, both parties should know the case that they had to meet. It was therefore unsatisfactory that under the existing AIT rules, there had never been a requirement to produce a response or set out the grounds on which the appeal was resisted.

9.3C The Home Office had argued that in some cases, it would have nothing additional to add to the reasons that it had already given for refusing the application so the proposed response would add nothing. The Committee concluded that:

79. The Final Rules therefore require a response only if the Home Office wishes to change or add to the grounds relied upon in the decision notice. The TPC anticipates that this will give the benefits of requiring a response in all cases, by ensuring the case against the appellant is clearly set out in either the initial decision or a subsequent response. (Emphasis added)

9.3D This is supported by the Practice Directions, which state that at the CMRH, the Home Office must produce 'any amendment that has been made or is proposed to be made to the notice of decision to which the appeal relates or to any other document served on the appellant giving reasons for that decision' (emphasis added). As noted above (para 6.25), in cases where the CMRH is dispensed with and the Tribunal holds a paper PHR, the respondent is required to comply with this part of the Practice Direction by the date of the PHR.Taken together with rule 24(2), it is clear that an appellant is entitled to notice of any reasons for refusal not contained in the refusal letter upon which the Home Office will rely at the hearing.

9.3E The Home Office seldom complies with rule 24(2) and the Procedure Rules provide no specific sanction for failure to comply. However, under the reform procedure, the Home Office's review stage requires it to set out in the review document any change to its case, both in terms of concessions and the addition of any new grounds of refusal. Any attempts by a HOPO to further add to its case after this point should be strongly resisted and, in any event, should give good grounds for adjournment: see chapter 8.

9.4 Outside of the formal Home Office review process, attempts to engage in sensible discussion with a HOPO in order to narrow or even define issues much in advance of the hearing may well be futile. The Home Office Appeals Process guidance which gives guidance to administrative staff in the HOPO Unit makes clear that HOPOs are not allocated to cases until the hearing list is received from the Tribunal, normally 6 working days before the hearing, and anticipates that files will only be passed to the allocated HOPO 2-6 days before the hearing. The existence of a named case owner within UKVI as opposed to the HOPO Unit, at least if direct contact can be made, can facilitate communication well in advance of the hearing, and even after the file has been passed to the HOPO Unit they will normally need to take instructions from the case owner. It is normally worth taking a two-pronged approach and contacting both the HOPO unit and the case owner. This division between case owners and HOPOs has further reduced the scope for negotiation with HOPOs at hearings, who frequently say that they are instructed to concede nothing.

9.4A The Tribunal Guidance Note on CMRHs states that

23. For the respondent, the presenting officer should have the power to concede particular points where appropriate, such as age, nationality, or ethnicity. The presenting officer ought to be able to indicate that particular paragraphs in the reasons for refusal letter will not be relied upon or are no longer material. The presenting officer ought to indicate any material issues arising in relation to section 8 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 in respect of behaviour by the appellant to be taken into account as damaging to credibility.

Where a paper PHR is directed the standard directions clearly expect that the Home Office will indicate if any part of the refusal letter is no longer relied on, but you will not have the opportunity to press the HOPO on any points which you think should obviously be conceded, or to clarify whether section 8 is relied on. One solution would be to write to the HOPO Unit before the PHR, copying your letter to the Tribunal, asking the Home Office to concede particular points, or to confirm that section 8 is not relied on.

If a Response has not been served prior to a CMRH/PHR, then the HOPO can be asked to either confirm that no additional reason will be relied upon beyond the refusal letter, or else directed to serve the statement required by rule 24(2), if necessary, shortening time for compliance with that rule (rule 4(3)(a) states that the Tribunal may shorten the time for compliance with any rule, direction or practice direction). For appeals started on or after 22 June 2020, the requirement under the reform procedure for a Home Office review has effectively overridden the rule 24(2) process. If you seek a particular issue to be addressed in the review, you should set this out in your appeal skeleton argument, requesting a CMRH if the review does not provide clarity.

9.5 One way of teasing out the details of the Home Office case is to seek a direction that the Home Office serve a proper skeleton argument, in particular if they intend to advance any contention not set out in the refusal letter, and the Response required by the Rules or Home Office review under the reform procedure has supplied an inadequate explanation of the Home Office's additional case. The Response / Review may in any event not include details of the case, including authorities that the Home Office relies upon, that would be expected in a skeleton argument. The Tribunal's general case management powers under rule 4 include a power to require a party "to provide... submissions to the Tribunal or a party" (rule 4(3)(d)) and it is clear that it may direct the provision of a skeleton argument. Indeed, all appellants are now required to lodge 'a skeleton argument, identifying all relevant issues including human rights claims and citing all the authorities relied upon' (Practice Directions para 7.5(a)(iii)). The 2014 Rules also include a power by which the Tribunal can "give directions as to (a) issues on which it requires evidence or submissions; (b) the nature of the evidence or submissions it requires; ... (e) the manner in which any evidence or submissions are to be provided, which may include a direction for them to be given—(i) orally at a hearing; or (ii) by witness statement or written submissions; and (f) the time at which any evidence or submissions are to be provided." (Rule 14(1)).

9.6 The Home Office's IDI's previously stated that:

"Directions may require a skeleton argument. Unless the request relates to specific points, we should simply refer to reasons for refusal letter and any supplementary letter(s). It is not necessary for caseworkers to provide or refer to precedent cases. What is being sought is the paperwork on which our decision is based: the evidence backing up our assertions." (ch.12, s.8.2, which was withdrawn for 'review' in about 2009 and has not been reissued to date)

9.7 It is unclear what basis the Home Office could have for claiming that it is unnecessary to refer to the caselaw upon which it relies. The Practice Directions expressly state that a skeleton should incorporate the caselaw relied upon and it is required of all appellants. The APIs have in the past offered a sample skeleton argument for a fictional case to guide HOPOs as to good practice in drafting skeleton arguments. The sample skeleton was instructive. Its structure was as follows:

• The Home Office concedes in the light of 'further evidence' that the appellant was a member of his organisation and was active as claimed.

• It concedes that 'higher level' activists of that organisation 'may well' be at risk of persecution.

• It contends, however, that less prominent members are not at risk and supports this contention by reference to reports from Amnesty International.

• It therefore opposes the appeal on the sole ground that the appellant is not sufficiently prominent to be at risk.

9.8 This example demonstrates how a skeleton argument from the Home Office may assist. It identifies what is and is not in dispute and the evidence upon which the Home Office will rely to resolve the dispute. It saves everyone time and effort. Contrast it with the structure of the average refusal letter.

9.8A The Home Office's Appeals Process guidance provides a summary of best-practice which, unfortunately, is rarely followed:

The purpose of the [case management] review is to identify the important issues upon which the appeal relies and upon which the substantive hearing will focus. The PO will submit any objective evidence and caselaw to be relied upon at the substantive hearing, which has not already been served in the appeals bundle.

Seeking information about the Home Office's case

9.9 If any Home Office Review under the reform procedure or Rule 24(2) Response have failed to clarify the case your client needs to meet, you may wish to seek specific directions in order to narrow the issues and identify what is in dispute. The Tribunal's general case management powers in rule 4 include a power to require a party to amend a document (rule 4(3)(c)), and a power to "permit or require a party or another person to provide documents, information, evidence or submissions to the Tribunal or a party" (rule 4(3)(d)). It also has a power "On the application of a party or on its own initiative… [to] order any person to answer any questions" (rule 15(1)(b)).

9.10 The Home Office has in the past adopted the bizarre position that it is justifiable for it to oppose an appeal while declining to disclose its case for opposing it. It has relied upon a decision of the Court of Appeal in Mwanza v SSHD [2001] INLR 616. The Court held that a direction to the Home Office to issue a 'fresh refusal letter' was ultra vires because it required the Home Office to take a substantive step (i.e. embark on a reconsideration). The Rules only permitted directions in respect of procedural issues.

9.11 That decision was deprecated on its facts by the Tribunal in N'Da v SSHD (01/TH/01769). But its limited application was also emphasised by the Tribunal in SSHD v Razi (01/TH/01836). In that case, the Home Office had refused the claim on non-compliance grounds and the Adjudicator directed that it:

... serve a note of any reasons for refusing the substantive asylum application. Failing compliance, consideration may be given to disposing of the appeal in accordance with Rule 33 [of the 2000 Procedure Rules].

9.12 The Home Office did not comply. The Adjudicator therefore treated its decision as withdrawn. The Home Office appealed. The Tribunal dismissed the appeal. It held that '[The adjudicator] was not requiring the Home Office to take a changed view of the case'. He was simply requiring it to 'give whatever reasons they might have for maintaining their decision' so that the appeal could be determined on the merits:

That was the proper procedural purpose for which [the adjudicator] gave his direction. It clearly came to the same thing as an order for particulars, familiar to civil practitioners, which essentially requires a party to give details of his own case.

9.13 In R (Emlik) v IAT [2002] EWHC 1279 (Admin), the Administrative Court approved Razi (01/TH/01836), holding that the Tribunal 'were clearly right in that case in distinguishing Mwanza' (per Silber J). See also R (Zaier) v IAT and SSHD [2003] EWCA Civ 937, in which Auld LJ pointed to Razi as illustrating how a direction expressed as a requirement that the Home Office particularise its case might achieve the same result in practice as an (impermissible) direction requiring the Home Office to take a fresh decision. In the same case, Clarke LJ emphasised the adjudicator's 'extensive' and 'ample powers' to make appropriate directions, including that the Home Office particularise its case, notwithstanding that he could not order a reconsideration or fresh decision by the Home Office. The disagreement with Razi expressed by another division of the Tribunal in SSHD v C (Yugoslavia) [2003] UKIAT 00007 was limited to the consequences of non-compliance with directions under the old 2000 Rules rather than the nature of the power to make directions. Given that the express terms of rule 24(2) and the standard directions under the reform procedure now clearly require the Home Office to state any additional reasons it may have for opposing your client's appeal, it is unlikely that the Home Office will outright refuse to provide further details of the reasons on which its decision is based. More likely, however, is procedural compliance which fails to address the substantive lack of clarity.

9.14 The proposed direction should however be carefully phrased, both to improve the prospects of it being ordered and to decrease the prospects of the Home Office successfully challenging it. What may be problematic is a direction that the Home Office take a substantive step such as to reconsider the case and make a new decision or to reinterview the appellant – even where that step is plainly called for. What it clearly can do is direct the Home Office to disclose details of its case: its reasons for maintaining that the appeal should be dismissed. If the case plainly requires a change of view, then the Home Office will either have to consider the new evidence or changed circumstances and change its view to take account of them, or expose its position as untenable.

9.15 Suppose the Home Office's original decision was based on the assertion that your client could live in rebel-held Narnia. Narnia has now fallen to the government. You may not ask the Tribunal to direct the Home Office to reconsider its decision to refuse asylum. That would be to imply (according to Mwanza [2001] INLR 616) that the Home Office must take a different view. But the Tribunal can direct the Home Office to disclose its reasons for opposing the appeal in light of the fall of Narnia. The Home Office is entitled to respond to the direction by stating that its case remains unchanged. But if so, the disclosure of that fact may enable the Tribunal to resolve the appeal expeditiously against the Home Office. If on the other hand, the Home Office has changed its reasons then you are entitled to notice of its new case. The same reasoning applies if you have put forward further evidence particular to your client which demands a response.

9.16 [....]

9.17 An example of how such a direction might be phrased is:

The Secretary of State is required to file and serve further information stating whether, and if so on what grounds it continues to oppose the appeal, and in particular state whether (and if so on what grounds) it challenges the following evidence relied upon by the appellant...

(For a further example, see the direction issued by the Tribunal in SSHD v Zaire (01/TH/02779).)

9.18 Do not assume that the Home Office will necessarily comply. In Razi (01/TH/01836) (which had been adjourned on several occasions without compliance by the Home Office), the Tribunal commented that taking the 'charitable view' that the Home Office's conduct 'was no more than institutional incompetence, it is hard to imagine any other department of state in this country where such incompetence would be tolerated'. It added, however, that:

This begins to go beyond mere institutional incompetence, into the realm of an institutional culture of disregard for adjudicators, who are the primary judicial authority in this country for making sure that immigration powers are efficiently, as well as fairly exercised. That does not serve the public interest, which the Home Office are there (we think) to represent.

9.19 It concluded that the adjudicator was justified in treating the decision as withdrawn. That course is no longer available under the present Procedure Rules. However, there are alternative measures available to the Tribunal in the face of non-compliance by the Home Office.

9.20 As indicated above, the Rules provide no express sanction for a failure by the Home Office to comply with rule 24(2) (or the requirement for a Home Office review under the reform procedure), or indeed any direction which you have obtained from the Tribunal as suggested above. Rule 6(2) states that where a party has failed to comply with a Rule, practice direction or direction it may "take such action as it considers just". This may include the exercise of its power in Rule 14(1)(a) to give directions as to the issues on which it requires evidence or submissions. In order for rule 24(2) or the Home Office review to achieve their purpose, the Tribunal should be prepared to refuse permission to rely on new grounds where the Home Office has not notified its additional case in a statement pursuant to rule 24(2) or in its Review. You will often wish to seek a further direction that should the Home Office fail to comply with an order to provide further details of its case, it should be precluded from putting forward a new case at the hearing. This is likely to be particularly appropriate where the Home Office has already failed to comply with rule 24(2) or the Home Office review, and you are now seeking a further direction for it to disclose its case. Proactive steps to define the issue in advance will greatly facilitate the efficient and cost-effective disposal of appeals, avoiding appellants having to amass evidence at public expense or arrange experts to attend hearings only for it to transpire that the Home Office does not, or cannot take issue with the point. In Nori v SSHD [2002] UKIAT 01887, the Tribunal noted that:

It may be that if the Secretary of State fails to carry out any investigation himself or to reach any conclusion himself, the adjudicator will have to make his decision on the basis of uncontroverted evidence from the appellant or without permitting the Secretary of State, if he has failed to comply with directions, to put in any material himself.

9.21 The CMRH is designed to provide the opportunity to define the issues. As the Tribunal explained in Kalidas (agreed facts – best practice) [2012] UKUT 00327 (IAC) "CMRs and agreement of facts are efficient devices for focussing the issues before the First-tier Tribunal, which can save much time and effort". If the Home Office cannot offer a sensible response, it will often be appropriate to seek an appropriate direction at that hearing. The Tribunal Guidance Note on CMRHs expressly envisages directions against appellants if their case is 'vague and unspecific'. The Tribunal can then exercise the power discussed in the preceding paragraph to ensure that the parties comply with any agreement/ decision at the CMRH as to the issues to be considered at the full hearing. As was emphasised in Kalidas, it is important to ensure that any agreement is reduced to writing so as to avoid the possibility of any subsequent argument over the scope of the agreement, and it is incumbent on the parties to draw that agreement to the attention of the judge hearing the substantive appeal. Note that the 2014 Rules require the parties to co-operate with the Tribunal both generally, and in seeking to further the overriding objective (rule 2(3)).

9.22 As with other litigation, the Home Office's first attempt to detail its case may be unclear or incomplete and you are entitled to ask for further details in these circumstances. This is distinct from asking for disclosure of its evidence (which is dealt with below). You are seeking to identify what claims the Home Office does and does not make. You will often want to know not only what is in dispute, but why. That will help you gauge how seriously you need to take the assertion, and how much effort and expense you need to devote to countering it.

9.23 You might, for example, want further details of the Home Office's case in order to enable your expert to engage with the Home Office's reasoning. If it alleges that your client wrongly identified the leader of a rebel organisation, it may assist in establishing its error if the Home Office is directed to identify who it claims the leader is. Sometimes, it will be helpful to explore the implications of the Home Office's case. By compelling the Home Office to follow through its argument to its logical conclusion, you may persuade it – or at least the Tribunal – of its absurdity, or may expose the unattractiveness of the underlying assumptions. You can also force the Home Office to engage with inconvenient aspects of the case.

9.24 You can of course present the evidence and make the submission without seeking further details. But by forcing the Home Office to commit itself to the full extent of its argument, the rebuttal of that case is more persuasive. Even if the request is refused, you have focussed minds upon the validity of the Home Office's case whereas the Home Office will often wish to focus minds anywhere but. You may even persuade the Home Office to abandon such allegations altogether (or occasionally to concede the case). The following appeared in a refusal letter quoted in the Asylum Aid report No Reason at All:

The Secretary of State... considered your account of crossing the Zaire River by canoe at night to be totally implausible. The Secretary of State is aware of the size, strength and considerable dangers posed by the river such as shifting sandbanks and crocodiles.

9.25 Confronted with a request for further details of the alleged crocodile population, the Home Office was unable to comply. It withdrew the allegation, but then – illustrating the potential drawback in seeking such a direction – produced a wholly new set of allegations to support its refusal. Such a response is a real risk in some cases. It illustrates the major proviso to the above discussion: just because the Home Office has not presented its case properly does not necessarily make it your job to force it to do so. In some circumstances, it may be more beneficial for you to address the deficiencies in the Home Office argument directly to the Tribunal.

9.26 The appellant will have an understandable sense of injustice if she successfully discredits the reasons for refusal only to find that the Home Office puts forward new allegations upon which it chose not to rely in the original decision. She may well think that the Home Office is concerned simply to conjure up any reason which might allow it to maintain its original refusal. You will not want to encourage this unattractive practice on the part of the Home Office. For this reason, you should consider the likely response to such directions. You have no obligation to help the Home Office evade the defects in its case. You have to make a decision on the facts of each case whether your client is best served by seeking a direction in advance or simply attacking these defects in your skeleton and submissions. In most cases where the issues are clear, it will be the latter.

Disclosure of documents

9.27 The Home Office is required under the standard directions to provide a bundle of the evidence upon which it relies. This must comply with rule 24(1) of the 2014 Procedure Rules (see chapter 10) and the standard directions further confirm that it must include the refusal letter and any material submitted in support of the application.

9.28 Under the CPR r.31.6, standard disclosure in civil litigation involves disclosure of documents 'which adversely affect his own case; adversely affect another party's case; or support another party's case...' The rules and principles relating to disclosure in ordinary civil litigation do not apply to statutory immigration and asylum appeals: see Nimo (appeals: duty of disclosure) [2020] UKUT 00088 (IAC). This has been long established. The House of Lords in R v SSHD, ex parte Abdi and Gawe [1996] UKHL 9 held that there was no automatic general disclosure duty in asylum appeals (para 21). In that case, the House of Lords had recognised that there was a 'strong argument' of justice in favour of imposing a general disclosure obligation that would apply to all asylum appeals, even the accelerated 'without foundation' third country appeals (which no longer exist but with which the House of Lords was concerned), but it was outweighed by the need to avoid delay in such appeals which were supposed to be generally straightforward, and, importantly, by the fact that disclosure could in practice be ordered 'if in a particular case the special adjudicator is in doubt' (Lord Lloyd, p.315A).

9.29 There is no express requirement in the Procedure Rules upon the Home Office to disclose relevant evidence in its possession other than those papers which it must file pursuant to rule 24(1) - see chapter 10 - and under the standard directions (see 9.27). Rule 24 reads:

24.—(1) … 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.

9.29A Rule 24(1)(d) was considered by the Upper Tribunal in Nimo (appeals: duty of disclosure) [2020] UKUT 00088 (IAC). It declined to adopt the broad construction of the provision previously adopted (in respect of its predecessor in the 2005 Procedure Rules) in Miah (interviewer's comments: disclosure: fairness) [2014] UKUT 00515 (IAC). Both cases concerned the question of whether, in the context of appeals involving the question of whether a marriage of convenience has taken place, the Home Office was required by Rule 24(1)(d) to produce, in addition to the verbatim record of the marriage interviews, the summary sheet which included the interviewer's comments and a recommendation based on his observations at interview as to whether the marriage was one of convenience (form ICD.4605). In Miah, the Tribunal held that fairness required this to be produced as a matter of course, but that decision was reversed and expressly discredited in Nimo (at [36]):

The expression "relied upon" in rule 24(1)(d) must mean that the respondent relies upon the unpublished document as part of her case before the First-tier Tribunal. … the expression cannot properly be construed as referring to any advisory or preparatory document that has led up to the form in which the respondent has articulated the reasons for her decision, as contained in the decision letter.

9.29B Further, in Nimo, the Tribunal rejected the approach adopted in the earlier decision in Miah to the duty of candour applicable in judicial review cases, concluding that the duty of candour does not apply to statutory immigration and asylum appeals: Nimo (appeals: duty of disclosure) [2020] UKUT 00088 (IAC) at [23]-[26]:

23. As can be seen from paragraphs 10 and 21 of its decision, the Upper Tribunal in Miah appears to have equated judicial review proceedings with those of a statutory immigration appeal. However, these two types of litigation are distinct. There is no legitimate reason to import into immigration appeals the duty of candour, which exists in judicial review.

24. The basic reason why it is unnecessary and inappropriate to do so is identified in Mr Jarvis's skeleton argument. We are, here, concerned with an appeal. The First-tier Tribunal judge was not undertaking a review of the respondent's decision, with all the attendant restrictions that flow from the judicial review process. The case is not like Fayed, where the claimant received an adverse decision which he wished to challenge but did not know the reasons for that decision and, thus, the case he had to meet. On the contrary, it was an appeal, where the respondent was obliged to say why she had refused the application and where the judge was required to decide for himself the question whether, on the evidence before him, the respondent had discharged her duty of showing, on the balance of probabilities, that the appellant's marriage was one of convenience.

25. Although concerned with an appeal raising human rights issues, what the House of Lords said in Huang v Secretary of State for the Home Department [2007] UKHL 11 makes the distinction in this context between appeal and judicial review plain:-

"11 … the task of the appellate immigration authority, on an appeal on a Convention ground against a decision of the primary official decision-maker refusing leave to enter or remain in this country, is to decide whether the challenged decision is unlawful as incompatible with a Convention right or compatible and so lawful. It is not a secondary, reviewing, function dependent on establishing that the primary decision-maker misdirected himself or acted irrationally or was guilty of procedural impropriety. The appellate immigration authority must decide for itself whether the impugned decision is lawful and, if not, but only if not, reverse it…"

26. To put that another way, in an immigration appeal the reasons for the respondent's decision are merely the starting point for an independent judicial process.

9.29C However, parties to litigation in the Tribunal have a duty not to knowingly mislead the Tribunal. As the Tribunal pointed out in Nimo, insofar as the Home Office has information that could materially assist your client, but which is not mentioned in the documents already before the Tribunal, it is required to disclose this. To fail to disclose information in these circumstances would be to mislead the Tribunal. Applied to the factual context of the marriage interview, the Tribunal in Nimo said (at [35]):

…If, for example, the interviewing officer comments that the appellant or spouse appeared to be seriously unwell during the interview, and that this might account for the unsatisfactory answers given, then the respondent is under a duty to disclose. The presenting officer would, in such circumstances, be misleading the Tribunal, if she were to rely on the discrepant or otherwise unsatisfactory answers, without drawing attention to what the interviewer had had to say about the interviewee's apparent state of health.

9.30 Indeed, it would be unfair, and itself inconsistent with the appellant's human rights and procedural protections at common law, were the Home Office to withhold relevant material which assisted your client's case. One would hope it would be rare that there was a conscious decision by the Home Office to withhold material adverse to its case. One would hope it would be rare that there was a conscious decision by the Home Office to withhold material adverse to its case. However, the Home Office is not known for reaching consistently reasonable conclusions on the probative value of evidence. It may convince itself that a document in its possession does not assist the appellant whereas a reasonable observer may draw a very different inference. In practice it will be important, therefore, in some cases and particularly those with a procedural history, to use data protection law to obtain your client's file from the Home Office to ensure there is nothing of assistance to her case (see 9.41A-K).

9.30A The Tribunal in Nimo referenced earlier key jurisprudence relevant to the content of the duty not to mislead. Relevantly, in Kerrouche [1997] EWCA Civ 2263 [1997] Imm 610 (a safe third country case) established that the Home Office's duty 'not to knowingly mislead' would apply not only where the Home Office knew but where it 'ought to have known that the material which it is said [the Home Office] should have disclosed materially detracts from that on which he has relied' (p. 617). Further, in R (Cindo) v IAT [2002] EWHC 246 (Admin), which concerned a substantive rather than third country asylum appeal, Maurice Kay J (as he then was) quoted the passage set out in the previous paragraph from Kerrouche [1997] Imm 610, emphasising the words 'ought to have known', and said:

10. The words I have emphasised point to the inclusion of constructive knowledge. This was taken up by Simon Brown L.J. in Konan v SSHD (CA, 20 March 2000, BAILII: [2000] EWCA Civ 3041), who also observed that (para 24):

'…..the Secretary of State's obligation in a full asylum appeal like this may well be higher than in cases like Kerrouche and …. Abdi and Gawe, cases concerned with safe third country appeals.'

11. Taking a broad view of the authorities, they appear to illuminate these principles: (1) there is a duty on the part of the Secretary of State not knowingly to mislead in the material he places before the Adjudicator or the IAT; (2) 'knowingly' embraces that which he ought to have known; (3) a breach of that duty may found judicial review on the basis that either (a) the decision was reached on a 'wrong factual basis' (see Wade & Forsyth, Administrative Law, 8th Ed. Pp.283-284); or (b) the proceedings were tainted with unfairness.

9.30B An example of the third principle identified by Maurice Kay LJ was an earlier appeal to the Court of Appeal in the Zimbabwe Country Guidance litigation, JG and CM (Zimbabwe) [2011] EWCA Civ 1704; [2012] EWCA Civ 1060, where the appeal was ultimately allowed by the Court of Appeal unopposed and the Tribunal's determination quashed because of the Home Office's failure to comply with its disclosure obligations in the Tribunal. The failure was not discovered until after the Tribunal had delivered its determination so the Tribunal was not at fault, but the Home Office accepted that its own failure to comply with its disclosure obligations rendered the Tribunal's determination wrong in law.

9.30C In the Court of Appeal in CM [2013] EWCA Civ 1303, Laws LJ held for the first time that the Home Office had a duty of 'due diligence' to identify and disclose adverse material. Referring to the Kerrouche [1997] EWCA Civ 2263 / Cindo [2002] EWHC 246 (Admin) formulation, he stated that:

27. ... the question ... perhaps suggests itself: how should the court or tribunal assess "what the Secretary of State ought to have known" for the purpose of the Kerrouche duty? This is the true place of due diligence in this field. The Secretary of State's duty in my judgment is to take reasonable steps to ensure that material relevant to a country guidance case is placed before the tribunal, and she must be candid in relation to documents of which she is aware whether or not they assist her. She may have to enquire of persons or bodies such as other government departments with which in any event the Home Office will be in communication, but she is not required to undertake unprompted or undirected searches.

9.30D In UB (Sri Lanka) v SSHD [2017] EWCA Civ 85 (see also para 17.37), the Court of Appeal held that 'there was the clearest obligation on the Secretary of State to serve relevant material and ensure it was before the Tribunals at both levels' ([16]). The Home Office must both comply with its published policy (see, eg Mandalia v Secretary of State for the Home Department [2015] UKSC 59) and bring any policy relevant to the appeal to the Tribunal's attention (see, eg, UB (Sri Lanka) v SSHD [2017] EWCA Civ 85). That includes material which it has published on its website and which has the character of policy (such as the letters from the British High Commission appended to the CPIN in UB (Sri Lanka). The Court of Appeal held that it was no answer to the complaint that the Home Office had acted unfairly for the Home Office to say that the guidance material was available on the Home Office's website (or generally online) and could have been found by the appellant or his representatives. The duty was on the Home Office and as the Court of Appeal emphasised, many appellants are unrepresented or their representation is 'less than optimal' ([21]).

9.30E In BH (policies/information: SoS's duties) Iraq [2020] UKUT 00189 (IAC), however, the Upper Tribunal held that the duty to place material before the Tribunal which would assist the appellant does not apply, however, to publicly available material that does not have the character of 'policy', even if it is contained within the Home Office's COI (see further chapter 17). According to the Upper Tribunal in BH, the Home Office's duty to mislead does not require it to draw the Tribunal's attention to country information which is in the public domain and could be found by the appellant ([52] & [56]).

9.30F Following BH, therefore, in determining whether the Home Office has a duty to bring publicly available country information to the Tribunal's attention, it will be necessary to establish whether it has the character of policy. The Tribunal in BH found that the Country Policy and Information Note in question did not have the character of policy and, since it was in the public domain, fairness did not require the Home Office to bring it to the attention of the Judge. It seems difficult to understand why the part of the CPIN entitled 'analysis and assessment of COI and other evidence,' is not the Secretary of State's policy given that it directs decision-makers as to how to determine asylum claims falling within a particular category. By contrast, the Tribunal held that the letters from the British High Commission in UB (Sri Lanka) are policy because:

…by choosing to place the government's own private communications from its High Commission on the website, the respondent had decided to treat them as authoritative and make them part of her policy on assessing claims to international protection made by Sri Lankan nationals.

9.30G If the UB (Sri Lanka) v SSHD [2017] EWCA Civ 85 duty does apply, however, note that the Home Office's obligation to supply relevant country material extends to whatever material would be relevant to the appellant's claim based on her claimed facts, even if disbelieved by the Home Office, although it does not extend to material that is 'truly peripheral or irrelevant' to her case (see [22]). It applies to country information held by the Home Office even if the Home Office has not relied on the country information for its own position (as was the case in UB itself).

9.30H An order for disclosure can be made by the Tribunal under rule 4(3) of the 2014 Procedure Rules. Rule 4(3)(b) empowers the Tribunal to 'require a party or another person to provide documents, information, evidence or submissions to the Tribunal or a party.' There is also the power conferred by rule 15(1)(b) discussed below.

9.30I In light of Laws LJ's comments on the nature of due diligence in CM [2013] EWCA Civ 1303, it is important to show that what you are proposing is not an undirected search or 'fishing expedition.' The Tribunal has long been prepared to exercise its power to order the Home Office to identify specific material within a relevant category. For example in the Al-Mass'ari (HX/75955/94) case concerning the proposed expulsion of a Saudi dissident to a small Caribbean island in order to appease Saudi Arabia, the Chief Adjudicator ordered disclosure in relation to communications between the governments of the United Kingdom and Dominica.

9.30J In EM and Others (Returnees) Zimbabwe CG [2011] UKUT 98 (IAC), the Tribunal relied on r.5 of the Upper Tribunal Procedure Rules, which, as indicated, encompasses a power to 'require a party or another person to provide documents' to direct disclosure of 'any material emanating from the FCO regarding its assessment of the political situation in Zimbabwe' (at [131]).

9.30K In MST and others (Disclosure – restrictions – implied undertaking) Eritrea [2016] UKUT 00337 (IAC), McCloskey J refused an application for disclosure by the appellants relating to certain documents underlying a Home Office Fact Finding Mission. In giving his reasons for doing so, he explained the test to be applied when deciding whether to order disclosure in this jurisdiction:

8. We consider that the test to be applied is whether the disclosure of this material to the Appellants' representatives is necessary for the just and fair disposal of these appeals. We do not understand the arguments on either side to have espoused any different test. The application of this test clearly involves questions of degree and evaluative judgment on the part of the Tribunal. We bear in mind what was stated in O v M [1996] 2 Lloyds Rep.347:

"…. The document or class of documents [sought] must be shown by the applicant to offer a real probability of evidential materiality in the sense that it must be a document or class of which in the ordinary way can be expected to yield information of substantial evidential materiality to the pleaded claim and the defence …."

The test which we have formulated mirrors closely that which has been contained in successive editions of the Rules of the Supreme Court (Order 24), as explained in decisions such as R v Chief Constable of West Midlands Police, ex parte Wiley [1995] 1 AC 274, at 305 and Taylor v Anderton [1995] 2 All ER 420, at 432 F-I. In Disclosure (Third Edition), the authors comment at paragraph 1.03:

"Disclosure is not without its disadvantages. The principal one is that disclosure can be an expensive and burdensome process. The Courts are generally alert to the danger of oppressive disclosure and inappropriate requests for wide ranging disclosure are not infrequently dismissed for being not necessary for the fair disposal of litigation. The burden can not only fall on the party giving disclosure, but also on an opposing party presented with a mass of documentation of marginal relevance. In such a case disclosure can, far from clarifying the issues, operate as a cloud."

Within this passage one can readily identify the operation of the principle of proportionality, now enshrined in the overriding objective, in contemporary litigation. […]

9.30L You should write to the Home Office identifying the disclosure, or categories of disclosure, that you say are appropriate and identifying a reasonable period for it to respond, failing which you will apply for a direction. The request should be as focussed as possible to avoid the risk of it being dismissed as a 'fishing expedition'.

9.30M If the request relates to an allegation which is central to the reasons for refusal, and the Home Office refuses to comply with the direction, then it would be quite appropriate to urge the Tribunal to use its power to prevent the Home Office pursuing the allegation at the hearing.

9.30N Sometimes the Home Office objects to disclosure on the basis of confidentiality or damage to international relations or other aspects of the public interest. If so, you may consider offering appropriate undertakings supported by orders under rule 13 and 27 (see chapter 32). The Home Office is not, however, obliged to disclose legally privileged material, even in fundamental rights cases: R (on the application of the Secretary of State for the Home Department) v First-tier Tribunal (Immigration and Asylum Chamber) (Litigation Privilege; First-tier Tribunal) [2018] UKUT 00243 (IAC).

9.30O If your application is successful, any documents disclosed by the Home Office will be subject to the implied undertaking that you will not use them for any purpose other than the proceedings in which they are disclosed: see MST and others (Disclosure – restrictions – implied undertaking) Eritrea [2016] UKUT 00337 (IAC). Note however that, although there was no dispute that the implied undertaking applied to proceedings in the Upper Tribunal just as it does in the civil courts, the Upper Tribunal's decision on the actual application before it appears inconsistent with the scope of the undertaking as established in the authorities it cited. CPR 31.22, to which the Upper Tribunal referred, permits the use of disclosed documents 'only for the purpose of the proceedings' in which they were disclosed. By the time of the hearing, the application before it was for 'an order of the Tribunal permitting the Appellants to disclose the UK FFM report to specified NGO's, which will include in particular Amnesty International and Human Rights Watch' (para 14). The order had been deliberately narrowed from a request for permission to publish the report generally, and was presumably pursued to enable the appellants to seek input from potential witnesses and/or experts to assist them in the proceedings. That was not a 'collateral or ulterior purpose … not reasonably necessary for the proper conduct of' the appeal (the proper scope of the implied undertaking – see the passage from Harman v Home Office [1983] 1 AC 280 cited by the Upper Tribunal at para 15 of its decision. The Tribunal's ruling that 'the Appellants are not at liberty to disclose the UK FFM report to any person or agency, other than their clients and expert witness, in the absence of an order of the Tribunal permitting them to do so' (para 21) appears to adopt an unduly narrow approach to the legitimate use of material disclosed for the purpose of the proceedings.

9.31-9.35B […]

Orders to produce documents under rule 15

9.36 Prior to the 2014 Rules, a witness summons could be used to obtain disclosure of documents, as confirmed by the House of Lords in R v SSHD, ex parte Abdi and Gawe [1996] UKHL 9. As indicated above, Lord Lloyd found that there was no general duty of disclosure upon the Home Office because an [IJ] 'can always exercise his powers to ask for particulars of the Secretary of State's case, or to require a witness to attend and produce documents' (emphasis added)

9.37 A witness summons is no longer required as rule 15 gives the Tribunal the power to order production of documents by any person:

1) On the application of a party or on its own initiative, the Tribunal may—

(b) order any person to answer any questions or produce any documents in that person's possession or control which relate to any issue in the proceedings.

9.38 Rule 15(3) provides that:

No person may be compelled to give any evidence or produce any document that the person could not be compelled to give or produce on a trial of an action in a court of law in the part of the United Kingdom where the proceedings are to be determined.

9.39-9.40 […]

9.41 The only limitation on the Tribunal's power to direct the production of documents are those relating to the law of privilege. The Tribunal now has the power under rule 6(3) to refer a case to the Upper Tribunal where there has been a failure to comply with a requirement to produce documents or facilitate the inspection of documents (see para 9.48).

Using data protection rights to obtain disclosure

9.41A You can obtain disclosure of much of your client's Home Office file without approaching the Tribunal by making a Subject Access Request under the General Data Protection Regulation (GDPR). This can be useful in any case in which you think there may be relevant material on your client's file beyond what is likely to be disclosed under rule 24 of the Procedure Rules. However, you should be mindful that the former President of the Upper Tribunal sought to discourage the use of a Subject Access Request as a 'parallel process' which avoids the Tribunal's procedures for securing disclosure: see MSM (journalists; political opinion; risk) Somalia [2015] UKUT 00413 (IAC), Appendix 2, para 22. The criticism was made in the particular context of a case in which solicitors had failed to appreciate that some of the material disclosed under a Subject Access Request was legally privileged and had then relied on that material to pursue an allegation of bad faith against the Home Office. The suggestion that it is wrong to pursue a Subject Access Request as a means of obtaining material which is relevant to legal proceedings is contrary to subsequent Court of Appeal caselaw – see Dawson-Damer v Taylor Wessing LLP [2017] EWCA Civ 74 and Ittihadieh v 5–11 Cheyne Gardens RTM Co Ltd [2017] EWCA Civ 121. You will however obviously need to ensure that you comply with your professional obligations in respect of any such material obtained from the Home Office, whether pursuant to a Subject Access Request or an order for disclosure, and it is right that you cannot use privileged material obtained through a Subject Access Request if (and only if) it was obviously disclosed in error, unless it evidences bad faith or falls within another recognised exception (see the discussion in ISTIL Group v Zahoor [2003] EWHC 165 (Ch) for a summary of the principles at paras 88-94).

9.41B The Home Office guidance on making subject access requests to it now identifies three different levels of request, depending on how much information you want to obtain. As required by Article 12 of the GDPR (and retained in the UK GDPR), all three levels are free. A "basic" request will provide copies of listed documents held electronically. A "specific" request allows you to request copies of up to five documents from a list of specified categories. The Home Office aims to comply with these requests within 20 days. The highest level, a "detailed" request, used to cost £10 in order to supply the full file. Since the GDPR requires that this is also free, there is no reason not to request the full file of personal data straight away unless you only want material available through a basic or specific request and/or need a response sooner. The Home Office states that it will respond within one month of the requester's identity being verified (which is the time limit imposed by the GDPR). Note, however, that the guidance now states that in response to a detailed request:

Initially, you will be sent an electronic summary of your immigration history (as with a basic application) as this gives most people what they need. However, this option allows you to request further information from your Home Office file if you still need it.

9.41C The compatibility of this guidance with the Home Office's obligations when responding to subject access requests under Article 15 of the UK GDPR is doubtful. It is not open to the Home Office to respond to a subject access request by supplying a single document unless the request is limited to that document. Article 15(3) requires that "The controller shall provide a copy of the personal data undergoing processing" in response to a request for access to personal data. Therefore any partial data initially provided in response to the request cannot alter the Home Office's obligation under the UK GDPR, which is to supply a full copy of the personal data within one month of the original request (Article 12(3)) unless the time limit is extended (below). The suggestion that only the electronic summary will be supplied in the first instance appears to be related to the introduction to the guidance which now states that:

Processing these requests is expensive for the UK taxpayer. Because of this, and so we can give you the best service, you should be as clear as you can about the information you need.

9.41D Assuming you want a full copy of your client's personal data, you should make that expressly clear in the initial request in order to limit the scope for partial data to be provided in response. The controller is entitled to refuse a request, or charge for complying, if the request is "manifesty unfounded or excessive, in particular because of their repetitive character", but this is aimed at abusive rather than complex requests (Article 12(5)). There is provision for the data controller to extend time for complying by up to two months "where necessary, taking into account the complexity and number of the requests" but the data subject is entitled to be informed of the extension and the reasons for it within the first month.

9.41E The duty to search for personal data is a duty to make a proportionate search, having regard to all relevant considerations including the value and potential benefit of the request to the data subject: see Ittihadieh (above). Therefore, if you are looking for particular information which may not fall within the Home Office's standard search parameters, it may be useful to state why it is important, and if you know, where you think it may be found. This will be particularly important if you want officials' emails to be searched, which will not otherwise happen.

9.41F Under the GDPR, the request can be communicated in any form. However, the Home Office guidance asks that it is made by its online form, which it says will assist in ensuring it has the required information. It also includes an email address for queries: subjectaccessrequest@homeoffice.gov.uk.

9.41G There are detailed evidential requirements set out in the Home Office guidance to establish the identity of the person requesting the information, and if applicable, the authority of the representative to make the request. A request made on behalf of a child under 12 must be accompanied by evidence establishing the requester's relationship to the child. While the GDPR permits only proportionate steps by the controller to check the identity of the data subject, compliance in full with the Home Office guidance will avoid giving any excuse to seek to extend its time for compliance.

9.41H For disclosure other than personal data, it is often worth making a request under the Freedom of Information Act for the information/documents you require as well as seeking a direction from the Tribunal although the timescale for replies often transpires to be too long for first instance appeals. Note that if you formulate a request under the Freedom of Information Act for personal data which is governed by the GDPR, the Home Office will indicate that it requires a Subject Access Request.

9.41I The Data Protection Act (DPA) 2018 contains an exemption to certain rights of data subjects under the GDPR, including access to data under Article 15, where data is processed for the purposes of "the maintenance of effective immigration control, or the investigation or detection of activities that would undermine the maintenance of effective immigration control" to the extent that compliance with the relevant provisions of the GDPR would be "likely to prejudice" these purposes (paragraph 4 of Schedule 2). The exemption itself is of questionable compatibility with the GDPR and the Charter of Fundamental Rights, and likely to be challenged (a challenge on these grounds by the Open Rights Group and the 3 Million was dismissed by the High Court in October 2019 but permission to appeal has been granted with a hearing listed in February 2021: [2019] EWHC 2562 (Admin)). In any event, given its terms, and the assurances given by promoting ministers to Parliament during the passage of the Act, it is highly unlikely that it could be deployed to prevent disclosure of data requested by appellants in asylum and human rights appeals who have not absconded. Ministers also gave an assurance that the exemption would only be used in the context of an individual assessment of the case. A failure to comply, or delay in complying with a subject access request can also give rise to an entitlement to damages, including for distress: AB v Ministry of Justice [2014] EWHC 1847 (QB).

9.41J The Information Commissioner's website (ico.org.uk) has considerable guidance on using the GDPR and DPA 2018. If a subject access request is refused, a complaint can be made under Article 77 to the Commissioner, who is the UK supervisory authority under the GDPR.

9.41K […]

Witness summonses for oral examination

9.42 The Tribunal retains a power to summons a witness for oral examination, although it is no longer necessary to issue a summons simply to compel disclosure of a document (above). The 2014 Rules state that "On the application of a party or on its own initiative (a) by summons (or, in Scotland, citation) require any person to attend as a witness at a hearing at the time and place specified in the summons or citation" (Rule 15(1)(a)).

9.42A You might consider applying to summons a Home Office official to examine him. The Home Office will rarely call any witnesses of its own, except in a country guidance case, but it may sometimes rely on written evidence, for example as to the accuracy of an interview record or events which happened on arrival at the port of entry.

9.43 In Khalid and Others (Ealing, West London and Hammersmith College) Pakistan [2011] UKUT 295 (IAC), the Tribunal held that:

11... It is perfectly possible for significant weight to be afforded to written testimony. But the issue needs to be properly addressed. In the present case, the Designated Immigration Judge's conclusion, that any differentiation between oral and written evidence could effectively be brushed aside, on the basis that the party not relying on that evidence could have summonsed the other side's witness, was not a proper approach.

9.43A Therefore, before requesting a witness summons, think carefully about what you will achieve by questioning the person. If you summons a witness, then he will normally be treated as your witness. That means your examination may be treated as examination in chief in which case you will not be permitted to ask leading questions on contentious issues (a point that the Home Office has been alive to – see para 9.50 below). That may also mean that the HOPO's examination will be treated as cross-examination. He will therefore be permitted to put leading questions, notwithstanding that the witness' sympathies lie with the Home Office rather than the appellant.

9.44 The rule in civil litigation is that you can only cross-examine such a witness if he is declared hostile. That requires not only that the witness is giving unfavourable answers, but that he has no desire to tell the truth. It may be difficult to persuade a judge to make such a declaration in respect of a Home Office employee. The Tribunal is not bound by any rules of evidence, and there is no reason why this rule should be applied inflexibly to asylum and human rights appeals. However, there is no Tribunal caselaw on the subject.

9.45 In Kesse v SSHD [2001] EWCA Civ 177, the Court of Appeal concluded that the Tribunal had power to summons a witness where neither party had applied for a summons, and this is now made express in rule 15(1). However, it stated that a tribunal should hesitate long before exercising the power when the summons was not supported by either party. It has been held that you cannot ask the judge to issue the summons himself so as to avoid the rule that you cannot cross-examine a witness that you have summonsed (see SSHD v Prendi (01/LS/00060), para 30.14). Note however that in NA & Others (Cambridge College of Learning) Pakistan [2009] UKAIT 00031, the Tribunal appeared to have no difficulty with an arrangement whereby the respondent's counsel called as her witness an individual who had been summoned by the Tribunal at the request of the appellant's representative.

9.46 You may therefore want to clarify the Tribunal's view in advance. If your examination is to be restricted, it follows that you have to decide whether you will be able to elicit the necessary evidence from the witness without leading questions. You will need to have considerable confidence that the witness will have no option but to admit the necessary facts.

9.47 There might be very rare occasions when you wish to summons the author of the refusal letter. There is authority indicating that refusal letters can be treated as evidence. Where the allegations in the refusal letter appear to be misleading or raise potential improprieties, you ought to be within your rights to seek a summons against the author in order to investigate the basis for his assertions. However, you would again need to think carefully about how you would formulate your examination effectively in the face of an unhelpful witness and given the restrictions which may be imposed on your examination. In most cases, you will be better off simply pointing out that the refusal letter is a wholly unsatisfactory piece of evidence which should be given little weight.

9.48 As indicated above, to disobey a witness summons without reasonable excuse is a criminal offence. In circumstances where an employee of the respondent is defying an order of the court, it will also be appropriate for the judge to draw the strongest adverse inference against that party. The Tribunal also has the power under rule 6(3) to refer a matter to the Upper Tribunal for it to exercise its powers under s. 25 Tribunals Courts and Enforcement Act 2007 to hold a person in contempt of court. This power exists where any person has failed to comply with a requirement imposed by the Tribunal:

(a) to attend at any place for the purpose of giving evidence;

(b) otherwise to make themselves available to give evidence;

(c) to swear an oath in connection with the giving of evidence;

(d) to give evidence as a witness;

(e) to produce a document; or

(f) to facilitate the inspection of a document or any other thing (including any premises)

9.49 Rule 15(2) provides that:

(2) A summons or citation under paragraph (1)(a) must—

(a) give the person required to attend 14 days' notice of the hearing or such shorter period as the Tribunal may direct; and

(b) where the person is not a party, make provision for the person's necessary expenses of attendance to be paid, and state who is to pay them.

Although the Rules no longer stipulate that those expenses are to be paid by the party seeking the witness summons, it may be expected that the party calling a witness should pay his expenses unless there is good reason for some other provision. If you are seeking to summons a Home Office official you should argue that if they are attending in the normal course of their employment, their expenses should be met by their employer. The Tribunals Service has confirmed in an e-mail to ILPA on 8 July 2011 that "necessary expenses" is understood by it to mean travel expenses. Note also that a hearing, as defined in rule 1(4), "includes a hearing conducted in whole or in part by video link, telephone or other means of instantaneous two-way electronic communication" so you may propose the option that the summons requires examination by video or telephone rather than attendance at the hearing centre.

9.49A Rule 15(4) provides that:

(4) A summons, citation or order under this rule must—

(a) state that the person on whom the requirement is imposed may apply to the Tribunal to vary or set aside the summons, citation or order, if they have not had an opportunity to object to it; and

(b) state the consequences of failure to comply with the summons, citation or order.

9.49B If you obtain a witness summons, you should check that these requirements have been complied with as non-compliance may affect the subsequent enforcement of the order. The consequences which are to be stated are not particularised in the Rules or any guidance. They will include referral under rule 6(3) to the Upper Tribunal for consideration of contempt of court proceedings and prosecution. CPR Practice Direction 81, para 1 provides a specimen form of penal notice as follows in respect of contempt of court as follows: "If you the within-named [ ] do not comply with this order you may be held to be in contempt of court and imprisoned or fined, or your assets may be seized." It may also be advisable to set out the terms of the criminal offence in s.106(4-5) of the 2002 Act:

(4) A person commits an offence if without reasonable excuse he fails to comply with a requirement imposed in accordance with [Tribunal Procedure Rules in connection with proceedings under [section 82]...] to attend before [...]the Tribunal—

(a) to give evidence, or

(b) to produce a document.

(5) A person who is guilty of an offence under subsection (4) shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.

9.50 The IDIs gave (although this is no longer published on the UKVI website) the following further guidance to Home Office officials who are summonsed:

"WHERE A WITNESS SUMMONS IS ISSUED

The person named on the summons should attend. Failure to do so is an offence. An IND official called by the appellant should not speak to the appellant's representative before giving evidence. The witness should not be cross-examined by that representative... Any attempt at cross-examination should be strongly resisted by the presenting officer."

Disclosure of material from family court proceedings

9.51 In certain human rights appeals, material generated from proceedings in the family court may be relevant to the determination of issues. Section 12 of the Administration of Justice Act 1960 and rule 12.73 of the Family Procedure Rules 2010 prevents disclosure of information relating to proceedings held in private in immigration proceedings in the absence of permission from the Family Court. In Ahmed (rule 17; PTA; Family Court materials) [2019] UKUT 00357 (IAC), the Upper Tribunal acknowledged that disclosure of materials from the Family Courts is "an important matter which needs to be firmly borne in mind by practitioners and others in the immigration jurisdiction" (para 46).

9.51A The Protocol on communications between judges of the Family Court and Immigration and Asylum Chambers of the First-tier and Upper Tribunal applies where:

…an immigration appeal is pending before the Tribunal and the welfare of a child in the United Kingdom is likely to be affected by the decision in these proceedings and there are family proceedings in existence relating to that child.

9.51B The Protocol states that it is anticipated that judges in either jurisdiction will be assisted by 'knowing of the existence of proceedings in the other jurisdiction, the issues arising, the procedure and the time scale for determining them and any information disclosed in the other jurisdiction that may be of relevance to the respective immigration or family court decision.' The Protocol facilitates communication, including requests for disclosure of information or documents, between the two jurisdictions to that end. Where the Family Court grants permission for disclosure to the Tribunal judge of specific documents it will include any specific directions as regards disclosure to third parties.

9.51C You may need to advise your client that material from an asylum claim may be the subject of a disclosure order in separate family proceedings. In H (A Child) (Disclosure of Asylum Documents) [2020] EWCA Civ 1001, the Court of Appeal upheld a judgment from the Family Court requiring disclosure of asylum records in proceedings under the Children Act 1989. At [55] the Court said (per Baker LJ):

For my part, I am not persuaded that the confidentiality of information relied on by an asylum applicant should be treated any differently from other categories of confidential information. The fact that the information was provided to the asylum authority on a confidential basis, and the public interest in maintaining the confidentiality of the asylum process, are both factors which the judge must take into account. The fact that, if disclosed, the information would be seen by the person accused of persecuting the applicant is manifestly a factor which carries weight in the balancing exercise. It is not, however, determinative. It is true that both Article 22 of the Procedures Directive and paragraph 339IA of the Immigration Rules impose a prohibition on the disclosure of information to the alleged persecutor but the preliminary words of both the Directive and the paragraph qualify that prohibition. In both instruments, the prohibition is expressed as applying "for the purposes of examining individual applications for asylum". As my Lord Phillips LJ pointed out during the hearing, these words indicate that the provisions of the Article in the Directive and the paragraph in the Rules are intended to give instructions as to how to deal with the information when considering applications for asylum. They do not prevent a court from ordering disclosure.