Kesse v Secretary Of State For the Home Department

An Immigration Appeal Tribunal has power under the Immigration Appeals (Procedure) Rules 1984 to summon a witness of its own initiative where the evidence concerns a matter in issue. The power also permits the Tribunal to call a witness who is already present, even though neither party wishes to call that witness.

The power should be exercised sparingly. The Tribunal should hesitate before intervening in the adversarial process, particularly after retiring to consider its determination without warning the parties. A procedural irregularity justifies quashing a decision only where fairness has been materially affected. Where the evidence independently establishes the statutory ground and the appellant suffers no unfairness, the appeal need not succeed.

The Secretary of State made a deportation order against the appellant under section 3(5)(b) of the Immigration Act 1971, alleging that he had obtained leave to remain by deception through a purported marriage to a British citizen.

The Immigration Appeal Tribunal heard the appellant and considered a written statement from the woman whose identity had allegedly been used. After reserving its determination, the Tribunal reopened the hearing and called that woman as a witness, despite both parties' view that it lacked power to do so. The Tribunal dismissed the appeal and stated that it would have reached the same conclusion without her oral evidence.

The central issue before the Court of Appeal was whether the Tribunal had jurisdiction to call the witness on its own initiative and, if not, whether the procedure caused an injustice.

1. Appeal dismissed. The Tribunal had power under Rule 27(1) of the Immigration Appeals (Procedure) Rules 1984 to summon a witness where the evidence related to a matter in issue. The wording of the proviso, referring to a summons issued at the request of a party, implied that a summons could also be issued without such a request.
2. The Rules also envisaged the Tribunal calling a witness who was already present. Rules 28, 29(1) and 37(e) supported a flexible procedure directed to ascertaining the matters in dispute. The Tribunal’s jurisdiction was not confined by the ordinary limits applicable to civil proceedings. Rule 18(3)(b) was relevant to the Tribunal when sitting in an appellate capacity.
3. The power was exceptional and should be exercised with restraint. The Tribunal should hesitate long before taking evidence against the wishes of the parties, especially where it had already retired without warning that it might reopen the hearing. Nevertheless, the decision to hear the witness in this case was not procedurally improper because the witness could resolve the appellant’s assertion that he had married the named woman and had been unable to find her.
4. The Court considered that there was already ample material establishing deception, including the appellant’s lack of credibility and inconsistencies in the documentary and oral evidence. The Tribunal had expressly concluded that it would have dismissed the appeal even without the witness’s oral evidence, and the Court would have reached the same conclusion.
5. Even if calling the witness had been an irregularity, it would not justify quashing the determination. The witness repeated the substance of her written statement, and the appellant accepted that her evidence was true. The appellant had therefore suffered no unfairness.

• Immigration Appeal Tribunal: dismissed the appellant’s appeal against the Secretary of State’s deportation decision.
• Court of Appeal (Civil Division): dismissed the appeal and upheld the Tribunal’s determination.