AAN v Secretary of State for the Home Department

Where a party’s or witness’s face is substantially covered by religious attire, a tribunal must fairly balance the individual’s religious beliefs, the proper assessment of evidence and open justice. It should sensitively raise any concern that the covering may impair its assessment of evidence, and consider proportionate practical measures, including partial removal, an adjournment, screening or a limited audience.

A hearing is procedurally unfair where the tribunal allows a concern about a veiled witness to affect its evaluation of material evidence without first ventilating that concern or considering such measures. The error is material if there is a real possibility that the outcome might have been different.

The appellant, an Afghan national, appealed against the First-tier Tribunal’s dismissal of his appeal against a deportation decision. His case for international protection depended substantially on evidence from a woman who said that she was his sister and who gave evidence fully veiled.

The First-tier Tribunal treated its inability to compare her face with photographs in documentary evidence as material, but made no enquiry about her attire, did not raise its concern during the hearing, and did not consider arrangements enabling her face to be seen in conditions respectful of her beliefs. It also made no clear credibility findings concerning her or another important witness.

The central issue was whether these matters rendered the hearing procedurally unfair and amounted to material errors of law.

1. Appeal allowed. The First-tier Tribunal’s decision contained material errors of law. It was set aside and the appeal was remitted for a fresh hearing before a differently constituted First-tier Tribunal, with no findings preserved.

2. The veiled witness’s evidence was important to the appellant’s protection claim. The First-tier Tribunal had neither made a proper assessment of her credibility nor explained adequately its conclusions about the documentary evidence. Its inability to compare her face with photographs materially affected its reasoning.

3. Procedural fairness required the First-tier Tribunal to raise, with tact and sensitivity, its concern that the veil impaired its assessment of the witness’s evidence. It should have made a sensitive enquiry about whether the witness could give evidence without the veil, or with it partly removed, and considered practical alternatives such as screening or limiting the audience.

4. The Tribunal rejected the submission that the irregularities made no difference. Applying R v Chief Constable of Thames Valley Police, ex parte Cotton [1990] IRLR 344, it was enough that there was a real, rather than minimal, possibility of a different result. The principles applied equally to an appeal under section 11 of the Tribunals, Courts and Enforcement Act 2007.

5. Any restriction on open justice, including screening or a limited audience, must be justified only to the extent necessary to secure the administration of justice. Religious attire issues require an individual, proportionate response that respects religious belief while permitting effective participation and reliable assessment of evidence.

6. The separate ground alleging that the First-tier Tribunal had wrongly treated earlier proceedings as final failed. The evidence established that there had been no Court of Appeal remittal; the appellant had withdrawn his earlier appeal.

• Upper Tribunal (Immigration and Asylum Chamber): allowed the appeal on error of law, set aside the First-tier Tribunal’s decision, and remitted the matter for a fresh determination.
• First-tier Tribunal: on 16 August 2013, dismissed the appellant’s appeal against deportation on all grounds.
• Asylum and Immigration Tribunal: dismissed an earlier asylum appeal by determination dated 4 August 2009.