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“A series of small omissions and unfortunate developments…”


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The reported Upper Tribunal case of Kalidas (agreed facts – best practice) [2012] UKUT 00327 (IAC) underscores some important points of practice and procedure in the First Tier Tribunal (FTT).

The case concerned an appeal before the FTT where it appears to have been agreed between the Appellant and Respondent representatives that credibility was not in issue. The issues to be determined in the appeal were sufficiency of protection and internal flight.

The issues were ‘narrowed’ at an oral CMRH. The Upper Tribunal refers to the Judge’s note. The Judge’s note was a bit vague. Neither representative was provided with written confirmation of this agreement of the facts at the CMRH or following the CMRH. The Upper Tribunal refers to the terms of the Senior President’s Practice Directions at paragraph 7, to assist with PD 7.8:

In addition to the directions referred to above, at the end of the CMR hearing the Tribunal will also give to the parties written confirmation of:-

(a)  any issues that have been agreed at the CMR hearing as being relevant to the determination of the appeal; and

(b)  any concessions made at the CMR hearing by a party.

At the full appeal, the appellant was called and was cross examined.  The FTT then dismissed the appeal, finding the appellant to be incredible.

The Upper Tribunal gives helpful guidance in the case.  The official head note says:

(1) Parties should assist the First-tier Tribunal at Case Management Review hearings (CMRs) to produce written confirmation of issues agreed and concessions made.

(2) If credibility is not in issue, it will often be unnecessary to submit a further statement by an appellant, or call her to give evidence. If this approach is taken, the judge should be told why.

(3) Any further statement should not be a rehash of what has already been said.  It should be directed to the remaining live issues.

(4) Any skeleton argument should contain not just general law.  It should be directed to the live issues.

(5) A judge who accepts and records an agreement is best placed to understand its scope, and should consider reserving the case to herself.

(6) Representatives are jointly responsible for drawing attention of the hearing judge to the agreement reached, and the nature of the decision still required.

(7) Judges look behind factual concessions only in exceptional circumstances.  If the scope of a concession is unclear, or if evidence develops in such a way that its extent and correctness need to be revisited, the judge must draw that to attention of representatives.  Adjournment may become necessary.

Unsurprisingly, the Upper Tribunal set the decision of the FTT aside but we can learn some lessons from this decision:

(a) Write everything down: especially concessions and agreed facts. Better yet, politely ask the FTT makes a careful note of any concessions/agreed facts if there is an oral CMRH and to be provided with a copy of this;

(b) If appropriate, ask the judge to reserve the case to him or herself;

(c) Draft a relevant skeleton argument on point;

(d) Raise any concession/agreed fact at the start of full hearing.  Ask the judge to note it. Adduce any written confirmation;

(e) If credibility is conceded and you don’t need further evidence don’t call the client and do tell the judge why;

(f) If the judge raises concerns about a concession/agreed fact, remind the judge of the Kalidas case!  Adjournment may be required;

(g) Remind Judge of concession/agreed facts again at start and end of submissions.

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Sanaz Saifolahi

Sanaz Saifolahi is a barrister at Goldsmith Chambers. She is well regarded for her thorough case preparation, effective advocacy and personable nature. Sanaz is also an assessor for the Law Society ‘Immigration Law Advanced’ Accreditation Scheme.