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Upper Tribunal on permission, burden of proof, professional standards, etc

Upper Tribunal on permission, burden of proof, professional standards, etc

In a new case called NA (UT rule 45: Singh v Belgium) Iran [2014] UKUT 205 (IAC), heard by the President and Dr Storey, the Upper Tribunal has perhaps inadvertently posed a number of problems for practitioners. The issues are all quite distinct, making the case something of a legal chimera. One part deals with grants of permission to appeal, another the burden of proof where documentary evidence is submitted by a claimant and the power of the tribunal to direct parties to produce evidence, another the high professional standards expected of claimant representatives.

Limited permission to appeal

It is customary in the Immigration and Asylum Chamber for a grant of permission to be read as widely as is conceivably possible. Where a grant of permission does not explicitly limit the basis of grant, it is normal that all grounds can be argued. This approach was codified in the case of Ferrer (limited appeal grounds; Alvi) [2012] UKUT 00304 (IAC):

Where the First-tier Tribunal judge nevertheless intends to grant permission only in respect of certain of the applicant’s grounds, the judge should make this abundantly plain, both in his or her decision under rule 25(5) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 and by ensuring that the Tribunal’s administrative staff send out the proper notice, informing the applicant of the right to apply to the Upper Tribunal for permission to appeal on grounds on which the applicant has been unsuccessful in the application to the First-tier Tribunal.

Permission is always needed and grounds relied on need to have been properly pleaded, but where they have been pleaded it was the case that they could be relied on unless you had been told otherwise.

coffee grounds
Fresh grounds, anyone?

In this new NA case, two of the most senior judges of the tribunal appear to contradict Ferrer. Permission had explicitly been granted on one of the grounds pleaded but as far as we can see in the determination was not expressly limited in any way. Nevertheless, the tribunal decided to restrict the appeal only to the ground on which permission was explicitly granted:

We have adverted above to the narrow ground on which permission to appeal to this Tribunal was granted. At the outset of the hearing, Counsel for the Appellant made an application that all of the grounds contained in the renewed application for permission to appeal be considered. This application was made without prior notice to either the Respondent or this Tribunal. Acceding to it would inevitably have resulted in an adjournment to enable the Respondent to make proper preparations, with consequential wasted costs and delay. Taking this factor into account, together with the care with which and terms in which the other grounds of appeal had been refused by two Judges of the Upper Tribunal, coupled with the inexplicable absence of advance notice, we refused this application.

Perhaps there had been an explicit refusal of the other grounds of appeal but it was omitted from the text of the full determination. Who knows where that leaves us and what the status now is of the Ferrer case.

Burden of proof

The main ‘meat’ of the determination is what is said regarding the burden of proof where a claimant relies on documents said to support his or her case. The official headnote sums up the legal substance of the decision:

(1) Rule 45 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 confers discretionary, procedural case management powers. It does not require the First-tier Tribunal to undertake evidence-gathering. Any direction given under rule 45 to the Secretary of State to seek out or validate evidence must be exercised sparingly and in a fact-sensitive way, bearing in mind CM (Zimbabwe) v Secretary of State for the Home Department [2013] EWCA Civ 13. When considering whether to exercise its power under rule 45 to direct a party to produce evidence, the First-tier Tribunal should also be alert to its duty of impartial and independent adjudication and the essentially procedural nature of this rule.

(2) Neither Article 47 of the Charter of Fundamental Rights of the European Union nor the decision of the CJEU in MM v Minister for Justice, Equality and Law Reform, Ireland [Case – 277/11], BAILII: [2012] EUECJ C-277/11 establishes anything to the contrary. Similarly, neither of the ECtHR decisions in Singh and Others v Belgium [Application number 33210/11] and RC v Sweden [Application number 41827/07], BAILII: ([2010] ECHR 307 is authority to the contrary.

(3) The decision of the Upper Tribunal in MJ (Singh v Belgium: Tanveer Ahmed unaffected) Afghanistan [2013] UKUT 254 (IAC), that in relation to assessing the reliability of documentary evidence the Tanveer Ahmed [2002] Imm AR 318* principles continue to apply, is reaffirmed.

The facts of the case made it somewhat unsuitable for a test of Singh v Belgium, discussed here on the blog: the documents relied on in NA were a summons to attend court in Iran, an Iranian court judgment and a medical report. None of these could easily or securely be verified by the Home Office, unlike the UNHCR grant of status in the Singh case. It is a shame to see good law wasted.

Where easily verifiable evidence has been submitted to the Home Office and the Home Office has done nothing to verify or contradict it, a better argument might be that greater weight should accordingly be placed on the documents or that the Home Office should be barred from arguing the documents are inauthentic. It might have been helpful for the tribunal to spell this out given the obvious opportunity to do so and observe that there will be consequences in the tribunal where the Home Office fails in basic legal duties. The immigration tribunal seems to be a consequence free zone for the Home Office, though: instead, the tribunal castigates the claimant’s lawyers for their conduct of the appeal.

Professional standards

And now, to borrow the words of the tribunal itself at paragraph 26, I am “bound” to draw attention to the following unsatisfactory aspects of the writing of the determination by the Upper Tribunal. Of course, like the tribunal, I am not “bound” at all. We are all defined by our choices, including choices of omission.

In his brilliant and searing history of The Eighteenth Brumaire of Louis Napoleon Marx wrote:

Hegel remarks somewhere that all great world-historic facts and personages appear, so to speak, twice. He forgot to add: the first time as tragedy, the second time as farce. Caussidière for Danton, Louis Blanc for Robespierre, the Montagne of 1848 to 1851 for the Montagne of 1793 to 1795, the nephew for the uncle. And the same caricature occurs in the circumstances of the second edition of the Eighteenth Brumaire.

As the High Court before it in the Hamid line of cases, now the Upper Tribunal turns its attention to public criticism of claimant immigration lawyers. Except that the criticism is not of clear procedural failings that can be quantified and measured, but of a general obligation to observe high professional standards and a failure of initiative:

We take this opportunity to emphasise that adherence to the professional standards to be expected of legal representatives by any court or tribunal is not to be measured exclusively by reference to procedural directions. The indispensable obligation on all practitioners to observe high professional standards exists independently of procedural directions. Initiative is an obligatory commodity in contemporary litigation. Both the overriding objective and the administration of justice itself become casualties in cases where the necessary standards are not properly implemented in practice.

Public funding should have been applied for sooner, the Upper Tribunal opines haughtily in its wisdom and its considerable experience of conducting publicly funded work in the current environment, in which publicly funded lawyers are falling like flies, and in the meantime directions should apparently have been complied with unfunded.

Where, one might ask, is the criticism of the Home Office and its officials, whose institutional incompetence is as certain as night following day or that Nigel Farage will be on BBC Question Time? Whose all pervading dilatoriness in the immigration tribunal is such that it is assumed by all concerned that it is a waste of time to direct the Home Office to do anything? I for one look forward to the Upper Tribunal’s criticism of the bizarre doublethink of Excuses for Refusal Letters, the routine failure by the Home Office to comply with directions, the absence of a skeleton argument for any Home Office appeal I have ever defended in the tribunal in 13 years of advocacy, the failure of many a Home Office Presenting Officer “to formulate his main arguments in clear and unambiguous terms” (para 5) and the routinely poor, unfocussed and sometimes bizarre grounds of appeal on which permission is sometimes granted to the Home Office before being ‘expanded’ at the hearing.

It feels like the tribunal is institutionally either afraid of criticism of the Home Office or is simply so used to Home Office failings that like the boiled frog it is now unaware. A final thought: determinations like this cause me to dread the day that costs can be awarded in the immigration tribunal. In a way it is flattering in to be held to a higher standard. But by God it is galling as well.

Colin Yeo
Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder and editor of the Free Movement immigration law website.

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