Bashir v Secretary of State for the Home Department

J U D G M E N T

1. LORD JUSTICE DYSON: The appellant is a citizen of Sudan. He appeals with the permission of this court against the decision of the Immigration Appeal Tribunal of 23 September 2003 to dismiss his appeal against the dismissal by the adjudicator on 14 December 2001 of his appeal against the refusal by the Secretary of State to grant him asylum.

2. The appellant arrived in the United Kingdom on 29 October 2000 and applied for asylum the same day. His claim was based on his assertion that he had been a member of the Democratic Unionist Party ("the DUP"), an opposition political party. He claimed that he had been detained and ill treated in November 1991, June 1995 and March 1996 because of his political views. He said that he left Sudan in October 2000 because he feared that he would be persecuted for his role in a demonstration against the terms of national service.

3. The appellant gave evidence before the adjudicator and called Maj.Gen. Merghani as a supporting witness. The adjudicator concluded (at paragraphs 63-65) that the appellant was not a credible witness and gave a number of reasons for his conclusion. He noted that at the Home Office interview the appellant had said nothing about the detentions and incidents of ill treatment about which he gave evidence. The adjudicator did not accept that the appellant was not given an opportunity at interview to describe these matters. The adjudicator also noted that the appellant said he had gone to Syria in 1999 on a false passport, and yet he said that while in Syria he called for his own passport to be sent to him from Sudan to Syria so that he could enter the University of Damascus.

4. The appellant relied on various letters put forward on his behalf including one purporting to have been written by Sid Ahmed Alhussein Sid Ahmed, Deputy Secretary-General of the Sudanese DUP. For the reasons that he gave, the adjudicator said he could not attach any weight to them. At paragraph 74 the adjudicator referred to the fact that at the interview the appellant was asked about his membership card, and that the appellant had said that he would receive it through the secret post within a view days. The adjudicator regarded it as significant that despite the passage of time the card had not been forthcoming.

5. The adjudicator found (at paragraph 77) that further damage was done to the appellant's credibility by his answers to the question who had paid for him to come to the United Kingdom. At interview, he said that the money had come from his leaders. In his oral evidence, however, he said that the DUP had not helped him financially but that the money had been provided by his cousin. Later he said that most of the money had come from his father.

6. There were yet further matters which led the adjudicator to reject the appellant as a credible witness, but it is not necessary to refer to any more of them.

7. The adjudicator concluded his findings in relation to the appellant's activity in Sudan by saying (at paragraph 83) that the appellant had come to the United Kingdom for the purposes of economic betterment; he had not been detained in Sudan and the authorities were not looking for him prior to his departure for the United Kingdom. He also said in terms that he did not believe that the appellant had ever been a member of the DUP while he was in Sudan (paragraph 84).

8. As for his political activities in the United Kingdom, the adjudicator accepted that he may well have attended meetings of the DUP here. There was a photograph of him at a small-scale gathering or demonstration outside Chatham House next to a person who was said to be the DUP leader. The adjudicator dismissed this as a "cynical attempt by the appellant to improve his chances of being allowed to remain in this county on asylum and human rights grounds". He concluded that these activities would be seen by the Sudanese authorities as being of "an extremely low level nature" (paragraph 85).

9. The same reasons that led the adjudicator to reject the claim of a well-founded fear of persecution also led him to reject the claims based on human rights grounds.

10. The appellant was given leave to appeal by the tribunal. The grounds of appeal raised many points. These included challenges to some of the adjudicator's specific findings of fact. On 17 April 2002, he submitted to the tribunal a supplementary bundle which contained documents which had not been placed before the adjudicator. It seems that this bundle was not linked with the appellant's file and the material was therefore not considered by the tribunal who heard the appeal. The appellant was neither present nor represented at the hearing of the appeal. The tribunal dismissed the appeal on 30 May 2002. That decision was itself the subject of an appeal to this court which was compromised by a consent order made on 22 January 2003 whereby the appeal was allowed and the matter remitted to the tribunal for a re-hearing. The reasons given to this court for that compromise included:

"(3) In a determination notified on 30 May 2002 the Immigration Appeal Tribunal dismissed the Appellant's appeal against the Adjudicator's determination. Neither the Appellant nor his solicitors attended the hearing. In its determination the Tribunal noted that 'the appellant's solicitors have filed no documents since the Grounds of Appeal.

(4) In fact, the Appellant's solicitors had lodged three bundles of documents at the Tribunal on 17 April 2002. In refusing leave to appeal to the Court of Appeal, the tribunal said that 'these have subsequently been found and linked to the file ..... Nothing in that bundle discloses an error of fact or law in the Adjudicator's determination which would have made a material difference to the outcome of this appeal'.

(5) However, it is arguable that the Immigration Appeal Tribunal erred in failing to give reasons for its conclusion that the material did not disclose anything which would have made a material difference to the outcome of the appeal. It is therefore expedient that the Appellant's appeal against the Tribunal's determination be allowed and the case remitted back to the Tribunal for a rehearing of the appeal against the adjudicator's determination."

The supplementary bundle of documents was re-submitted to the tribunal.

11. The tribunal dismissed the remitted appeal on 23 September 2003. They held that when deciding the issue of the appellant's credibility the adjudicator was entitled to determine what weight to give to the Home Office interview and to the fact that the membership card had not been produced. They also rejected the allegations of procedural unfairness on the grounds that it was clear that credibility was at issue. In so far as there was a challenge to the adjudicator's findings of fact, they did not disclose any error.

12. Mr Soorjoo, who appears on behalf of the appellant, accepts that but for the material contained in the supplementary bundle there would no basis for impugning the tribunal's decision. The only point raised by him on behalf of the appellant concerned the new material that was not before the adjudicator. It is accepted by Mr Soorjoo that the effect of the transitional provisions in Rule 61 of the Immigration and Asylum Appeals (Procedure) Rules 2003 ("the 2003 Rules") is that the rules which govern the procedure for the admission of new evidence before a tribunal in the present case were those contained in Rule 21 which provides:

"(1) The tribunal may consider as evidence any note or record made by the adjudicator of any hearing before him in connection with the appeal.

(2) If a party wishes to ask the tribunal to consider evidence which was not submitted to the adjudicator, he must file with the appellate authority and serve on the other party written notice to that effect, which must -

(a) indicate the nature of the evidence; and

(b) explain why it was not submitted to the adjudicator.

(3) A notice under paragraph (2) must be filed and served as soon as practicable after the parties have been notified that permission to appeal has been granted.

(4) If the tribunal decides to admit additional evidence, it may give directions as to -

(a) the manner in which; and

(b) the time by which

the evidence is to be given or filed."

The 2003 Rules came into force on 1 April 2003.

13. No written (or indeed oral) notice was given to the tribunal by the appellant or his legal representative that he wished to ask the tribunal to consider the material contained in the supplementary bundle. The hearing took place on 11 April. The appellant was represented by his solicitor, Mr Anas Ahmed Khan. In a witness statement dated 17 February 2004, Mr Khan states:

"3. Although I did not make a specific application to adduce further documents but I made submission on the documents obtained and submitted after the Adjudicator's hearing but IAT never raised it as an issue that these documents are not admissible during the proceedings of the hearing. These documents were important to the Claimant's case as those rebutted the Adjudicator's speculative conclusion."

The tribunal did not indicate to Mr Khan what their attitude was as to the admissibility or relevance of the new material. We should point out that the grounds of appeal before the tribunal made no reference to the new material. In their determination dismissing the appeal the tribunal made no reference to the new material either.

14. An application for permission to appeal to this court was made in the first instance to the tribunal. This was refused by them for the following reasons:

"The Tribunal was satisfied that the adjudicator's conclusions were properly open to him for the reasons he gave. The grounds of appeal did not raise the issue that there was fresh evidence which might show that the Adjudicator's conclusions were incorrect although the bundle before the Tribunal did include additional documents to those before the Adjudicator (but not the membership card referred to by the Adjudicator in paragraph 74) but no specific application was made to the Tribunal to adduce further evidence under Rule 22 (5) of the 2000 Procedural Rules or Rule 21 of the 2003 Procedure Rules. The grounds seek to re-argue issues of fact which were fully considered by the Adjudicator in a comprehensive determination. The Tribunal was not satisfied that there was any proper basis for interfering with those findings."

15. Mr Soorjoo makes the point (not disputed by Miss Anderson) that it is not clear from these reasons whether the tribunal took no account of the new material because no application had been made under Rule 21 of the 2003 Rules or whether the tribunal did consider the new material and decided that it was irrelevant to the grounds of appeal and/ or could not have affected the adjudicator's decision and was therefore not a reason for allowing the appeal.

16. In my view, in their reasons for refusing permission to appeal the tribunal should have made it clear precisely how they had treated the new material. Further - although for reasons that I shall give the tribunal were justified in disregarding the new material in this case - it would have been better if they had indicated to Mr Khan during the course of his oral submissions what position they were taking or were minded to take as to the admissibility of the new documents. It was obvious that Mr Khan was seeking to rely on the material in support of the appellant's case. Mr Soorjoo submits that the failure by the tribunal to indicate at the hearing that they were disregarding the new material rendered the decision unfair, having regard to (a) the circumstances which led to the appeal being remitted to the tribunal for reconsideration, (b) the fact that the tribunal were referred to the material and its relevance by Mr Khan in his oral submissions and (c) the fact that the tribunal did not indicate at the hearing that they would not take the material into account when deciding the matter. The failure to consider the new material is unfair and inconsistent with the requirement that the most anxious scrutiny be given in these cases.

17. In my judgment the language of Rule 21 of the 2003 Rules is clear. If a party wishes the tribunal to consider evidence which was not submitted to the adjudicator he must file a written notice to that effect which must satisfy the two conditions prescribed by Rule 21 (2). The onus is put fairly and squarely on the appellant. There is no obligation on the tribunal to consider fresh material in any other circumstances. Rule 21 (2) marked a significant shift from the position which obtained under the previous regime embodied in the Immigration and Asylum Appeals (Procedure) Rules 2000, Rule 22 of which provided:

"(1) The Tribunal may consider as evidence any note or record made by the adjudicator of any proceedings before him in connection with the appeal.

(2) Subject to paragraph (3) the Tribunal may, of its own motion or on the application of any party, consider evidence further to that which was submitted to the adjudicator.

(3) The Tribunal shall not consider any evidence which is not served in accordance with time limits set out in these Rules or directions given under rule 30, unless the Tribunal is satisfied that there are good reasons to do so.

.....

(5) Where any party wishes to adduce further evidence before the Tribunal in accordance with paragraph (2), he shall give written notice to that effect to the Tribunal indicating the nature of the evidence."

Under that regime the tribunal had a wide discretion to consider fresh evidence of its own motion, and in relation to evidence which a party wished to adduce the rules were less strict than they are under the 2003 Rules.

18. Mr Khan's oral submissions by reference to the fresh material did not even amount to a notice of the appellant's wish to ask the tribunal to consider the fresh evidence which, had it been in writing, would have complied with Rule 21 (2) of the 2003 Rules. Mr Khan gave no explanation as to why the material was not submitted to the adjudicator.

19. I would accept that in exceptional circumstances a tribunal may admit fresh evidence even where the strict requirements of Rule 21 (2) have not been satisfied. These are more likely to occur where the appellant is acting in person and where there is a clear link between the fresh evidence and the appellant's grounds of appeal. There are no exceptional circumstances in the present case. The appellant was represented by a solicitor at all material times. Moreover there is no link between the new material and the appellant's grounds of appeal in this case. The grounds make no reference to the fresh material. The grounds of appeal are very specific and seek to challenge individual findings of fact of the adjudicator. No attempt has been made by Mr Soorjoo to link the new material to the specific findings and show how it casts doubt on them. In these circumstances Miss Anderson is right to submit the new evidence is irrelevant to the grounds of appeal.

20. Finally I turn, albeit briefly, to examine the fresh material to see whether it casts any doubt on the safety or correctness of the adjudicator's decision. The starting point is that the adjudicator's decision was a model of its kind. It was thorough and careful. The adjudicator gave several cogent reasons for his conclusions that the appellant lacked credibility and that his claim had to be rejected. The first document in the supplementary bundle is a letter dated 30 January 2002 by Maj.Gen. Merghani. He is the retired Vice-President of the United Kingdom branch of the DUP. There was a witness statement from him which was before the adjudicator, dated 13 August 2001. In that statement he said that the appellant had been a member of the DUP in Sudan and had been subject to harassment there. Maj.Gen. Merghani gave oral evidence before the adjudicator. The adjudicator said this about his evidence:

"When asked about the appellant, it is significant that Mr Merghani chose to refer first to the fact that the appellant was an active member of the DUP in the United Kingdom, having recently attended a meeting regarding the establishment of a new Youth and Students' Office. The witness was, however, extremely vague in answering questions about the appellant's DUP background in Sudan. In particular, when asked about checks carried out by the DUP in the United Kingdom, when faced with a person seeking membership here, the witness spoke in general terms and had to be asked to focus his attention upon what was done in the case of this particular appellant. If, as he claimed, the appellant was a card-carrying member of the DUP, and if, as he told me, records were kept in Sudan of DUP members, it is significant that neither the witness nor the other writers of letters on behalf of the appellant have seen fit to give any details regarding his membership of the DUP in Sudan. This is particularly noteworthy, given that the appellant claims to be someone who has undergone significant hardships in the cause of the DUP, to the point where that party has expended significant time, effort and - possibly - money, in getting him to the United Kingdom."

21. In the new letter Maj.Gen. Merghani refers to the appellant's release from detention in March 1996 and says that he was persecuted for his membership of the DUP. He also says -

"for obvious security reasons neither our headquarters nor our branch issues membership cards."

22. In relation to the membership card, as I have said, the adjudicator was impressed by the fact that no card was produced before him. This led the adjudicator to say at paragraph 76 that he could not attach any weight to the letters put forward on behalf of the appellant insofar as they purported to support his account of events in Sudan. In my view if Maj.Gen. Merghani had given evidence to the adjudicator in accordance with the new letter it is clear that it would not have affected the adjudicator's decision, nor would it have made any difference to the view of the tribunal that the adjudicator was entitled to reach the conclusion that he reached. The new explanation for the absence of a card further undermines the appellant's credibility. It was not his case before the adjudicator that he did not have a card since cards were not issued to members for security reasons, but rather that "he could not bring his DUP membership card with him from Sudan considering the way he left" (paragraph 44).

23. It follows that the fresh evidence of Maj.Gen. Merghani, far from assisting the appellant's case, further undermined it. Perhaps this is why Mr Soorjoo does not place great reliance on Maj.Gen. Merghani's letter. Instead he concentrates on three further documents. First, there is an undated letter from Sid Ahmed Alhussein Sid Ahmed. This letter purports to certify that the appellant has been a member of the DUP in Sudan since 1989 and that he was subject to frequent detention by the security forces, particularly in November 1991, June 1995 and March 1996. A different letter from the same person was before the adjudicator. As Miss Anderson points out, the previous letter says nothing about detention of the appellant on the grounds of his involvement with the DUP. Moreover the earlier letter is in English and the new one in Arabic. There is no explanation of the provenance of the new letter and no explanation as to why the new points were not dealt with in the earlier letter.

24. In these circumstances, and in the light of the adjudicator's view of the letters placed before him in support of the appellant's case, there is no reason to suppose that if the adjudicator had seen this letter it would have affected his view of the credibility of the appellant or that if the tribunal had taken this letter into account they would have taken a different view as to the safety of the adjudicator's decision.

25. The second document is a travel prohibition form dated 13 April 1996 issued in respect of the appellant. It states:

"You are hereby requested to prohibit travel of the above-mentioned because of involvement in riot acts."

It gives the reason for the prohibition as "prompting against policies of public security and authorities under surveillance of security forces". Here too there is no explanation of the provenance of this document in view of its date, April 1996. The delay in its production, if it is genuine, cries out for an explanation. Further, although the appellant has made a number of statements in connection with his claim for asylum, there is no reference to this document by him. In these circumstances, having regard to the adjudicator's detailed assessment of the credibility of the appellant, it is clear that this new document would not have led the adjudicator to a different conclusion.

26. The final document is an arrest warrant dated 7 October 2000 in respect of the appellant. It does not identify the offence to which it relates. There is no explanation as to why it was not produced to the adjudicator. Its vagueness casts considerable doubt on its authenticity. But even if it is to be assumed that it is a genuine document, it is an equivocal document. It is consistent with the appellant having allegedly committed a criminal offence rather than being at risk of persecution.

27. For all these reasons I would dismiss this appeal.

28. LORD JUSTICE JONATHAN PARKER: I agree.

29. LORD JUSTICE KENNEDY: I also agree.

Order: Appeal dismissed. The applicant/appellant's costs to be subject to detailed assessment.