The Secretary of State for the Home Department v WA

During the taking of evidence, a judge’s role is supervisory. The judge should protect the fairness and orderly conduct of the hearing, but should not interrupt cross-examination to enable a party to improve its evidence without a proper and recorded justification.

If an exceptional event disrupts the ordinary course of a hearing, the judge must record what occurred, who said what, the decision made, and its reasons. A decision must also give intelligible and sustainable reasons based on the evidence as a whole. In a protection appeal, that includes a reasoned assessment of credibility and material expert evidence.

The claimant, an Egyptian national, appealed to the First-tier Tribunal against the refusal of his protection claim. He alleged a risk on return because he was, or would be perceived to be, a supporter of the Muslim Brotherhood. His claim depended on the credibility of his account.

During cross-examination before the First-tier Tribunal, the judge adjourned the hearing so that the claimant could obtain further evidence. The appeal was later allowed. The Secretary of State appealed, contending that the adjournment was unfair and that the First-tier Tribunal had failed to give adequate reasons for its credibility findings and its treatment of the evidence.

1. Appeal allowed. The First-tier Tribunal’s decision contained material errors of law. It was set aside and the protection appeal was remitted for a wholly fresh hearing before the First-tier Tribunal.

2. While evidence is being taken, the judge’s function is supervisory. The judge may ensure that evidence is properly given, address witness welfare and interpretation, prevent undue interruption, and exclude manifestly unfair questions. After the parties have examined the witness, the judge may ask clarifying questions and permit consequential further questions. A relevant question about a claimant’s activities will rarely be unfair merely because it challenges credibility.

3. The adjournment during cross-examination was an extraordinary step. The First-tier Tribunal had not recorded the issue which prompted it, what the representatives said, or why an adjournment was justified. There was therefore no basis for finding that it was proper to permit the claimant to supplement his evidence at that stage. The unexplained step breached procedural expectations and created an appearance of unfairness.

4. The reasons for allowing the protection appeal were also unintelligible and unsustainable. The First-tier Tribunal had not analysed the evidence coherently, explained why credibility challenges were resolved in the claimant’s favour, or assessed the evidence as a whole. It failed to give a clear, reasoned response to material reservations in Dr George’s report concerning the claimant’s asserted risk and prior travel. Its purported separate reliance on the wife’s evidence and medical evidence further showed that it had not made the necessary overall credibility assessment.

• Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State’s appeal was allowed. The First-tier Tribunal’s decision allowing the protection appeal was set aside, and the appeal was remitted for a complete rehearing.

• First-tier Tribunal: Allowed the claimant’s appeal against the refusal of his protection claim. No citation was stated.