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Procedural fairness in asylum appeals
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The recent Court of Appeal decision in SH (Afghanistan) v Secretary of State for the Home Department  EWCA Civ 1284 repays reading for the way it reiterates the centrality of procedural fairness, especially in asylum cases. At the heart of the case is a challenge to an Immigration Judge’s refusal to adjourn to admit independent expert evidence.
SH had claimed asylum and claimed to be a minor. Lincolnshire social services assessed him to be an adult. The Refugee Council strongly believed him to be a minor and arranged for an independent expert to carry out an age assessment. An adjournment of his fast track hearing was sought on that basis and notably the Secretary of State did not oppose the adjournment application. Nevertheless, Immigration Judge Froom refused to grant it, reasoning that no date had been set for an appointment with the expert, and declaring that there was only a rough estimate of when the report would be available. The Immigration Judge concluded that he could ‘justly determine the appeal on the basis of the evidence already available.’
Senior Immigration Judge King in the Upper Tribunal upheld the appeal’s dismissal on the basis that on the evidence before the Immigration Judge ‘his decision was one properly open to him and was not Wednesbury unreasonable or perverse or unfair.’ Even if the Immigration Judge had adjourned and considered the independent report, it was ‘reasonably likely’ he would have reached the same decision.
Many immigration lawyers will have experience of similar scenarios in non-fast track appeals where an adjournment to adduce expert evidence is refused [ed: oh yes indeed]. So it is useful to study the reasons given by Moses LJ, with whom Patten and Ward LJJ agreed, for finding that the First Tier and the Upper Tribunal had both fallen into serious error.
Moses LJ identified the ‘central issue in the appeal’ as the procedure by which the Tribunals below had reached their decisions (2):
8… It is fundamental that the parties should be allowed to answer adverse material by evidence as well as argument (see, e.g., In Re. D  AC 593 at 603) and all the more so where the subject matter, such as a claim for asylum, demands the highest standards of fairness (R v Secretary of State for the Home Department ex-parte Fayed  1 WLR 763-777).’
Applying this principle to SH’s case:
9… The essential point is that the Secretary of State had expert evidence on which she relied and the appellant wished to produce his own. In those circumstances, it seems to me beyond argument that the judge ought, in fairness, to have given this appellant an opportunity to provide countervailing expert evidence, if he could obtain it, all the more so where the judge had been informed of assessments by others, such as Mr Jeff’s, which challenged the social workers’ own assessment. In my view, it was unfair and unlawful to refuse an adjournment at that stage.e, if he could obtain it, all the more so where the judge had been informed of assessments by others, such as Mr Jeff’s, which challenged the social workers’ own assessment. In my view, it was unfair and unlawful to refuse an adjournment at that stage. The judge appears to have done so merely on the basis that it would involve removing the appeal from the Fast-Track Procedure. That provided no justification for his refusal.
As to the correct legal tests to be applied:
13… First, when considering whether the immigration judge ought to have granted an adjournment, the test was not irrationality. The test was not whether his decision was properly open to him or was Wednesbury unreasonable or perverse. The test and sole test was whether it was unfair…
14. The question for Judge King was whether it was unfair to refuse the appellant the opportunity to obtain an independent assessment of his age; the question was not whether it was reasonably open to the Immigration judge to take the view that no such opportunity should be afforded to the appellant. Where an appellant seeks to be allowed to establish by contrary evidence that the case against him is wrong, the question will always be, whatever stage the proceedings have reached, what does fairness demand?
The centrality of the requirements of fairness are reiterated with a rousing quotation from the case of John v Rees  Ch 345, 402:
It may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice. ‘When something is obvious,” they may say, ‘why force everyone to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start.’ Those who take this view do not, I think, do themselves justice. As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change. Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events.”
It is not, then, for the first instance judge to pre-judge whether the material sought will make a difference to the outcome of the case. Adjournments must be granted where it would be unfair not to do so, including in the fast track process.
And yet SH’s case has a sting in the tail. Moses LJ holds that once the evidence has been adduced later on it is not normally for the appeal tribunal to review what the outcome might have been had the evidence been available. The test applied by the SIJ is held to be wrong: whether it is reasonably likely the original judge would have reached the same conclusion. The correct test is whether it is inevitable the judge would have reached the same conclusion.
Accordingly, Moses LJ asks himself, notwithstanding the errors he has found ‘whether the evidence that the appellant is over 18 is so overwhelming that it is pointless to remit the matter to a First Tier Tribunal…’ Sadly for SH, he decides that ‘this is one of those rare cases in which the unlawful errors of procedure made no difference whatever.’ Despite the existence of an independent report assessing SH to be a minor and a second assessment by the local authority, agreeing that SH was a minor, the Court found that adverse evidence arising from a prior entry clearance application by SH was so detrimental to his claim to be a minor that the expert reports could not have made a difference.
Ed Mynott, Latitude Law.