Macharia v The Immigration Appeal Tribunal

An immigration tribunal must observe the procedural safeguards governing further evidence. A party seeking to adduce additional evidence should give the required notice. Where evidence is admitted late, the opposing party must receive a fair opportunity to consider it and, where necessary, adduce material in response. That opportunity may require an adjournment. A tribunal may itself rely on material within its knowledge, but only after giving the parties a fair opportunity to address it. The fact that material is publicly available does not remove the need for procedural fairness. Ten minutes to assimilate substantial new country material was inadequate. The appeal was therefore allowed and the tribunal’s determination was set aside.

The appellant claimed asylum in the United Kingdom on the basis of his political activities in Kenya and feared persecution by the Kenyan police. A Special Adjudicator initially accepted the substance of his account and allowed the claim. The Secretary of State appealed to the Immigration Appeal Tribunal.

At the Tribunal hearing, the Secretary of State produced a new United States State Department report without prior notice. The Tribunal also relied on a Home Office country assessment obtained from the Internet. The appellant’s representative was given ten minutes to consider the material. The central issue before the Court of Appeal was whether that provided a fair opportunity to respond.

1. Appeal allowed. The Immigration Appeal Tribunal’s determination was set aside and the matter was remitted for a further hearing.
2. Rule 27 of the Asylum Appeals (Procedure) Rules 1996 governed the admission of further evidence. The requirement that a party “shall” give notice, together with the express discretion in Rule 27(3)(a), did not support an implied general power to admit unnotified evidence at large.
3. Evidence could nevertheless be received through the Tribunal’s power under Rule 27(3)(b) to request further evidence, or through an adjournment under Rule 18. In either event, the opposing party had to be given a full and fair opportunity to deal with the material. This included time to consider it and to determine whether further evidence should be adduced in response.
4. The Tribunal could treat material within its own knowledge as evidence before it, provided that the parties were given a fair opportunity to address it. That conclusion was supported by Abdi and Gawe [1994] Imm AR 402 at 420, as approved in Gnanavarathan [1995] Imm AR 64 at 70.
5. The public availability of the United States report did not make it any less new evidence requiring proper procedural treatment. Ten minutes was wholly inadequate for the appellant’s representative to assimilate the material or consider counter-evidence. The Tribunal therefore failed to provide a fair hearing. The grave consequences of an adverse asylum decision reinforced the need for care, as recognised in R v Secretary of State for the Home Department, ex parte Bugdaycay [1987] AC 514 at 531.
6. Lord Justice Sedley agreed that the appellant had not been given a fair opportunity, while observing that a challenge based on procedural unfairness would ordinarily be brought by judicial review because factual disputes concerning the hearing are generally resolved by evidence. Sir Christopher Staughton likewise accepted that unannounced evidence could be admitted only in limited circumstances, ordinarily with consent or an adjournment.

• Court of Appeal (Civil Division): Macharia v The Immigration Appeal Tribunal [1999] EWCA Civ 3001. Appeal allowed; the Tribunal’s determination was set aside and the matter remitted.
• Immigration Appeal Tribunal: Allowed the Secretary of State’s appeal against the Special Adjudicator, concluding that there was no reasonable likelihood of persecution on return to Kenya.
• Special Adjudicator: Accepted the appellant’s account and concluded that he had established the basic facts supporting his asylum claim.