Ates v Secretary of State for the Home Department

In an asylum appeal, an adjudicator may question a witness after examination-in-chief, cross-examination and re-examination to clarify matters arising from the evidence and resolve doubts, provided the questions are proportionate and the parties can address matters arising from them. Persistent questioning is not automatically unfair: its character must be assessed in context. A fair-hearing challenge is judged from the perspective of an independent and fair-minded observer informed of all material circumstances. Where the alleged severity of ill-treatment bears on the significance of absent medical evidence or limited scarring, questions directed to establishing that severity may be legitimate. On a renewed permission application, the Court of Appeal is slow to intervene where the tribunal applied the correct legal approach and engaged with the relevant facts.

The appellant arrived in the United Kingdom from Turkey and claimed that he had been tortured for three days before leaving. The Secretary of State rejected the account. An adjudicator dismissed the appeal, treating the account as fabricated in light of the limited injury described, the absence of medical treatment and the lack of a medical report.

The Immigration Appeal Tribunal dismissed the further appeal. The appellant alleged that the adjudicator’s persistent questioning about falaka and the severity of the ill-treatment created apparent bias and denied him a fair hearing. The renewed application for permission to appeal concerned whether the Tribunal had applied the correct legal test and whether the questioning amounted to an error of law.

1. Disposition. The renewed application for permission to appeal was dismissed. The Court of Appeal found no arguable error of law in the Immigration Appeal Tribunal’s determination.
2. Fair-hearing test. The relevant question was whether an independent and fair-minded observer, fully informed of the material facts and circumstances, would conclude that the appellant had received a fair hearing. The Tribunal had correctly directed itself in those terms.
3. Judicial questioning. There is no general objection to an adjudicator questioning an appellant. After examination-in-chief, cross-examination and re-examination, the adjudicator may ask questions arising from the evidence to clarify matters in doubt, provided the questions are not too long or burdensome. The parties must then be given an opportunity to ask further questions arising from the adjudicator’s questions. This was consistent with the guidance referred to in Oyono.
4. Application to the facts. The adjudicator explained that he was questioning the appellant to understand the account clearly and to decide whether the alleged torture should be rejected. The questioning was directed to the overall severity of the alleged treatment, which affected the weight of the absence of medical evidence, the lack of serious treatment and the limited scarring. Its persistence, viewed in that context, did not establish unfairness.
5. Permission threshold. Applying the approach stated in Koller [2001] EWCA Civ 1267, the Court was slow to entertain what was effectively a second appeal where the Tribunal had directed itself correctly and addressed the relevant facts. The Tribunal’s conclusion was legally open to it, and the application was dismissed.

1. Court of Appeal (Civil Division) — On 5 October 2004, dismissed the renewed application for permission to appeal: [2004] EWCA Civ 1347.
2. Immigration Appeal Tribunal — On 26 May 2004, dismissed the appeal from the adjudicator’s determination.
3. Adjudicator — On 29 April 2004, dismissed the appeal against the Secretary of State’s refusal letter dated 20 April 2004.