United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI- 2024-002014
	FtT No: PA/51265/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 24 February 2025

 

Before

 

UPPER TRIBUNAL JUDGE O'CALLAGHAN

 

Between

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and

 

MR (PAKISTAN)

(ANONYMITY ORDER MADE)

Respondent

Representation :

For the Appellant: Mr N Wain, Senior Presenting Officer

For the Respondent: Mr K Jegede, Solicitor, SAJ Legal Solicitors

 

Heard at Field House on 10 September 2024

 

ORDER REGARDING ANONYMITY

 

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, MR is granted anonymity.

 

No-one shall publish or reveal any information, including the name or address of MR, likely to lead members of the public to identify MR. Failure to comply with this order could amount to a contempt of court .

 

 

DECISION AND REASONS

Introduction

1.              This appeal requires the Upper Tribunal to consider a direction issued by the Judge denying the Secretary of State the opportunity to cross-examine two witnesses. To assess the lawfulness of this direction, the Upper Tribunal is required to consider general principles as to cross-examination to credit of parties or witnesses in the Immigration and Asylum Chamber.

2.              The parties are referred to as they were before the First-tier Tribunal: the appellant is referred to as "the Secretary of State" and the respondent as "the appellant".

3.              The Secretary of State appeals a decision of the First-tier Tribunal to allow the appellant's appeal on Refugee Convention and human rights grounds. I observe that it is unclear from the decision of First-tier Tribunal Judge Cartin ("the Judge") as to which article(s) of the ECHR as incorporated domestically by the Human Rights Act 1998 was the basis for the successful human rights appeal. The decision was sent to the parties on 4 May 2024.

4.              At the outset I express my gratitude to Mr Wain and Mr Jegede for their helpful submissions.

Anonymity Order

5.              The Judge issued an anonymity order. Neither representative asked that the order be set aside. I am satisfied that the appellant's protected rights under article 8 ECHR presently outweigh the right of the public to know the identity of the appellant as a party to these proceedings, as protected by article 10 ECHR. In the circumstances I confirm the anonymity order above.

Relevant Facts

6.              The appellant is a national of Pakistan and is aged 53. He entered the United Kingdom in June 2006 having been granted entry clearance as a student and enjoyed leave to remain until 2 December 2006. He overstayed.

7.              On 23 July 2012 he applied for leave to remain on human rights (article 8) grounds. The Secretary of State rejected the application by a decision dated 31 October 2012.

8.              The appellant was encountered by police on 31 May 2017. He claimed asylum on 22 June 2017 asserting a well-founded fear of persecution consequent to his sexuality. The Secretary of State refused the claim by a decision dated 1 August 2017. The appellant's appeal was dismissed by First-tier Tribunal Judge Malcolm in a decision sent to the parties on 11 October 2017.

9.              The appellant's purported partner, Mr F, did not attend the hearing before Judge Malcolm. Two witnesses attended the hearing on the appellant's behalf, stating their belief that he is homosexual. Judge Malcolm considered their evidence to possess little evidential value as they simply reported information provided by the appellant.

10.          Judge Malcolm did not find the appellant to be credible as to his personal history in Pakistan. He noted the appellant's conviction earlier that year for a sexual assault upon a female by touching. Though the appellant denied the offence before him, Judge Malcolm observed that he had pleaded guilty to the charge. Additionally, Judge Malcolm found the appellant's failure to claim asylum between 2006 and 2017 to damage his credibility.

11.          The appellant's onward appeal was subsequently dismissed by a decision of the Upper Tribunal sent to the parties on 21 May 2018.

12.          The appellant served further submissions upon the Secretary of State in September 2021. He relied upon letters of support from friends confirming his sexuality as well as a letter from Mr K, whom he identified as his male partner.

13.          By a decision dated 27 January 2023 the Secretary of State accepted that the submissions advanced constituted a fresh claim under paragraph 353 of the Immigration Rules, but did not grant the appellant leave to remain. The Secretary of State did not accept that the appellant was living in the United Kingdom as a gay man. As the reasoning is relevant to the 'notice' discussion below, I cite relevant paragraphs of the decision:

"18. You have submitted several letters of support (LOS), as listed above, in support of your claim. Apart from the letters signed by [Mr K] and [Ms A] ..., the letters go to act in support of your character and do not specifically mention your claimed sexuality. They detail activities in the UK that you undertake, such as voluntary work and charity work. However, they make no mention of any relationships within the UK that you may have had, nor do they make any reference to your lifestyle in the UK. Therefore, this group of letters of support add little weight to your claim to be homosexual.

19. You have provided a letter of support signed by [Ms A], who claims to have known you for 8 years. Within the letter it is claimed that she has previously travelled to Pakistan once and met your family, going on to state " ... and can confirm that his life is in danger there due to his sexuality ..." However, there is no evidence that [Ms A] has ever travelled to Pakistan nor is there any evidence that she met your family. This letter therefore adds little weight to your claim.

20. You have provided a letter of support from your claimed partner, [Mr K], who is also mentioned in your legal rep's letter. Within the LOS from [Mr K] it is stated that " ... I have know (sic) my partner for the last 2 years ..." (sic), However, neither yourself or [Mr K] have claimed that you are living together as a couple or are in a relationship akin to marriage or civil partnership. Within your legal rep's letter, it is stated that " ... [the appellant] and [Mr K] are totally emotionally and physically reliant in each other ... they want to register their marriage in the UK ..." However, there is no evidence of a substantial relationship being in place, e.g. utility bills, bank statements or other documentary evidence. Also, there is no evidence that shows any approaches have been made with a view to registering you marriage in the UK.

...

21. In summary, the letters of support provided add little weight to your claim that you are living in the UK as a gay man."

14.          The Secretary of State noted that the appellant had not responded to a letter dated 9 November 2022 requesting that he provide further evidence as to the claimed relationship.

Decision of the First-tier Tribunal

15.          The appeal came before the Judge sitting in Birmingham on 16 April 2024. The appellant attended and was represented by Mr Jegede. The Secretary of State was represented by Ms Shah, a Home Office Presenting Officer.

16.          Due to the substance of the challenge advanced before this Tribunal it is appropriate to address in detail the Secretary of State's position as adopted before the First-tier Tribunal, events at the hearing and the challenged direction issued by the Judge.

17.          Mr Jegede prepared the appellant's skeleton argument dated 14 October 2023. The appellant confirmed that he identifies as homosexual and relied upon two witnesses attesting to his sexuality.

18.          By her review dated 27 December 2023 the Secretary of State maintained her refusal decision of 27 January 2023. She observed, inter alia:

" Is the Appellant a homosexual?

5) [The Secretary of State] continues to maintain the decision as detailed in the decision letter dated 27 January 2023. [The Secretary of State] has taken note of the Appellant's statement dated 13 October 2023 along with the additional supporting statements of the Appellant's friends. The Appellant claims to be in a relationship with [Mr K] since 2019 ...

6) [The Secretary of State] notes that the only statement submitted from [Mr K] is in [the Secretary of State's] bundle at page 33, this is from May 2021. This letter is brief and lacking in much detail, [Mr K] says ' I have known my partner for the last 2 years" it does not state that they live together or have lived together. The Appellant's bundle nor the Supplementary bundle does not provide a more updated statement, this calls into question whether or not the Appellant and [Mr K] are in fact still in their claimed relationship.

7) The other supporting letters do not go to further the Appellant's claim that he is a Gay Man. They relate more to the Appellant's character, and it does not appear that these individuals have much insight into his claimed relationship. [Mr U's] statement at pages 57-58 of the Appellant's bundle only states at para 3 'I am aware of [Mr K's] relationship and that he resides with his partner' for someone who has known the Appellant for 7 years you would expect at a minimum that he would know the partner's name. The Appellant's neighbour has prepared a statement at page 66 of the Appellants bundle. This letter makes no reference at all to the Appellant's sexuality or that he is in a same sex relationship. Similarly, with the statement from [Mr Q] at page 67 of the appellant's bundle no refence is made to the Appellant being in a same sex relationship, or any knowledge from that witness that the Appellant is a Gay Man.

8) The only evidence the bundle seems to put forward that goes to support the relationship are 'GP letter of the appellant and the appellant's partner verifying same address of residence'. [The Secretary of State] submits that little weight should be placed on this, there is no other evidence at all to support the fact that the Appellant and [Mr K] actually live together, [Mr K] has not even specified this in his own statement".

19.          Turning to the events at the hearing, the Judge records:

"7. I heard evidence from the Appellant who was cross-examined in a fashion. He had the benefit of an Urdu interpreter who confirmed that the two understood each other. At the end of cross-examination, I raised with the presenting officer that she had omitted to challenge the assertions of the Appellant that he was gay and that he was in a relationship with a man in the UK. She indicated that she had asked all the questions she wished to about the claim. I pointed out that it was my understanding that [the Secretary of State] did not accept the truth of the claim he made. This was the basis for their rejection of it as I understood matters. If this was [the Secretary of State's] position, then I took the view that fairness dictated that their case should be put to the Appellant. He must be given an opportunity to respond to that position. This was the essence of cross-examination. I made clear that it there was no challenge on these matters, I would make a note to this effect and was likely to allow the appeal.

8. I was asked to rise so that the presenting officer could take further instructions. This was somewhat surprising as the questions of challenge did not strike me as needing to be numerous or complex, but it was necessary that the Home Office position should be put to the witness, and he should be challenged on assertions made which were not accepted. I rose for around 10 minutes. Upon resuming, Ms Shah remained steadfast in her position. Having taken further instructions, she confirmed that she had no further questions to ask. She would make submissions on the evidence heard and she relied on the previous findings in accordance with Devaseelan. I pointed out however, that [the Secretary of State] had plainly accepted that there was further / new evidence since that decision, otherwise the fresh claim would not have been substantively considered, and we would not be having this appeal which was in progress. She nevertheless wished to ask no further questions. I once again reminded her that fairness required that [the Secretary of State's] case be put to the witness and that I would not tolerate submissions being made which concerned matters of dispute which had not been raised in cross-examination. She declined to ask any further questions.

9. In view of this development and the lack of challenge to the Appellant on the principal controversial issues, I indicated that I did not require any further witnesses to be called. I exercised my power to so direct under rule 14 of The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. I indicated instead that I would take note of the witness statements of those witnesses who were to be called. [The Secretary of State] had elected not to challenge the Appellant's evidence and so there was in my view no need for further oral evidence to be heard".

20.          Ms Shah's submissions on behalf of the Secretary of State are recorded at [13]:

"13. The Secretary of State's] submissions were very brief. The reasons for refusal letter was relied upon. The previous findings of Judge Malcolm were also relied upon in accordance with the Devaseelan principles. It was submitted that the Appellant had failed to demonstrate that there was reason to depart from those previous findings. I was asked to give little weight to the letters of support. The witness evidence was said to be lacking in detail about the Appellant's sexuality. It was submitted that there was very limited evidence of the Appellant's claimed relationship. No specific details were given about this. In the circumstances, there was insufficient evidence to merit a departure from the previous findings".

21.          Having heard submissions from Ms Shah the Judge did not call upon Mr Jegede and announced that he was allowing the appeal.

22.          In his written decision the Judge properly observed that the decision of Judge Malcolm was his starting point. He then proceeded:

"16. However, the Appellant adopted his witness statement as his evidence in chief. In that statement he identifies as a gay man. He claims to have been discreet about his sexuality owing to fears, until he came to the UK. He claims to take part in Birmingham Pride events. He claims to have had a least four relationships with men whilst in the UK. He claims to be in a relationship with [Mr K] which has been ongoing since 2019, and they claim to reside together.

17. In cross-examination, the Appellant was asked about what family he had in Pakistan and what contact he had with them. His answers contradicted his statement where he claimed to have been disowned by his family.

18. He was asked when his relationship began with [Mr K] and when they began living together and how they met and where. He was asked when he realised his sexuality and it was pointed out that his answer of 16 or 17 years old was inconsistent with other answers in the papers where he gave the ages at 12 and early twenties. He was asked whether he attended any LGBTQI clubs in the UK and why he had stopped attending. He was asked what medical conditions he had and whether he received any treatment beyond taking medication.

19. Nowhere in the cross-examination was there any suggestion that this claim was a fabrication. In fact, the questions asked gave tacit acceptance of the claim to be in a relationship with and living with another man. As I made clear during the hearing, in these circumstances, there is consequently unchallenged evidence that the Appellant is gay and in a relationship with a man.

20. Notwithstanding the findings previously made some 7 years ago, this is the evidence which is now presented to me. The relationship certainly post-dates the earlier finding. [The Secretary of State] has specifically elected not to challenge the account given, despite me giving ample opportunity to do so and despite me pointing out the likely consequences of not challenging the evidence.

21. I therefore find, that applying the lower standard, the Appellant is homosexual, and he is in a relationship with [Mr K]. That being the principal controversial issue, the appeal is allowed on asylum grounds. It has not been suggested that he would not face persecution upon a return, if it were shown that he is gay".

23.          The appellant's witness statement, referenced at [16] of the Judge's decision, was signed on 13 October 2023 and is expressly noted by the respondent at §5 of her review.

24.          The Judge took the opportunity to make observations:

"22. Had there been a challenge to the factual basis of the Appellant's claim, I would have shared Judge Malcolm's concerns over the Appellant's delay in mentioning his sexuality as a reason why he required international protection.

23. I also note that the Appellant has a conviction for sexual assault on a woman. Had his sexuality been challenged, that is a matter which I would also have considered to be undermining of his claim to be sexually attracted only to men and not women. I give no credence to the denial of guilt he now makes. His conviction arose from an unequivocal plea of guilty. He has had ample time to pursue an appeal against conviction but has not done so".

25.          Having accepted the appellant to be homosexual, the Judge noted two concerns as to the evidence before him, but considered them to be moot in light of his conclusion as to the appellant's sexuality:

"24. The content of the Appellant's GP's letter was curious. The first part of the letter is unremarkable. It sets out the Appellant's known medical problems and his medications. The writing is in ordinary English prose. However, the bold text section reads very differently. The grammar and syntax is poor and in places the wrong word has been used (i.e. worried instead of worrying). However, in the circumstances, the point is moot.

25. The report of Dr Sara Simblett has no bearing on my findings for the reasons that should be plain. However, Dr. Simblett appears to stray beyond her field of expertise by discussing laws on sexual activity in Pakistan, even proffering a suggestion that the Appellant could be prosecuted for abuse he claims to have suffered as a child. No consideration was given to the possibility that the Appellant might be feigning of exaggerating symptoms to assist in his asylum appeal. However, in the circumstance, the point is moot."

26.          In his conclusion, at [26] the Judge again observed that there had been no challenge to the appellant's assertion that he is homosexual and that there was no challenge to the claimed fear of persecution on account of his sexuality if returned to Pakistan. The Judge observed that it was not suggested by the Secretary of State that the appellant's fear was not well-founded. The Judge concluded that the appellant had demonstrated that he is a refugee within the meaning of the 1951 Convention and his appeal was also to be allowed on human rights grounds.

Grounds of Appeal

27.          The Secretary of State's notice of appeal identifies one ground of appeal; the First-tier Tribunal made a material misdirection of law resulting in procedural impropriety.

28.          At the hearing, Mr Wain identified two individual components to the overarching procedural impropriety ground:

                                  i.             The First-tier Tribunal acted procedurally unfairly by concluding that there had been a lack of challenge to the appellant on the principle controversial issues such that it "did not require any further witnesses to be called" and so denied "the presenting officer the opportunity to cross-examine any witnesses to advance the argument on behalf of the [Secretary of State] in challenging the claim". This error is said to have resulted in the appeal being allowed without consideration of the totality of the evidence, and with the Judge raising concern as to discrepancies in the appellant's evidence for which no explanation was given; and

 

                               ii.             The First-tier Tribunal adopted an approach which set a tone of unfairness and a lack of impartiality towards the Secretary of State's position: Sivapatham (Appearance of Bias) [2017] UKUT 293 (IAC).

29.          Mr Wain withdrew the second identified component concerned with bias at the outset of the hearing. I consider that he was right to do so.

30.          Permission to appeal was granted by First-tier Tribunal Judge Gumsley by a decision sent to the parties on 4 May 2024. Judge Gumsley observed:

"3. However, notwithstanding the FtT Judge's understandable frustrations, it is arguable that, given the previous findings as to the Appellant's homosexuality, and the other evidence in the case (which plainly caused him concern), the FtT did make a material error in law, by giving the appearance at least, of closing his mind to those concerns and not considering matters as a whole."

31.          The appellant filed a rule 24 response, dated 7 August 2024.

Rule 15(2A) Application

32.          The Secretary of State filed and served a rule 15(2A) response, dated 9 September 2024. Mr Jegede did not object to its admission. Attached to the response was an appeal hearing minute prepared by Ms Khan soon after the hearing concluded before the Judge. The minute details, inter alia:

"Hearing

Rep adopted statement.

PO [Presenting Officer] cross examined witness -

Asked about family: A stated he is in contact with his mother, challenged re: WS [witness statement] stated he is not in contact with family, A stated he was not in contact previously but has gotten back in contact 2 months ago.

Asked about when the A realised he was gay as inconsistency with WS stating 12 and assessment stating early 20s. PO also asked about medical conditions.

PO asked questions regarding the relationship, as this is not accepted within the RFRL [reasons for refusal letter]. PO questioned when the A met, how the relationship started and if the A was the one who disclosed sexuality. PO asked if A attends LGBTI clubs.

PO concluded questions, IJ [First-tier Tribunal Judge] stated the PO has not challenged the evidence and if she does not challenge then the appeal would be allowed. PO spoke to SCW [senior caseworker] and advised IJ it is a Devaseelan case, the relationship has been questioned and the letters of support will be challenged by the other witnesses who are in attendance today as that is new evidence before the tribunal.

IJ stated he did not need to hear from any other witnesses. PO was unable to challenge the witnesses. PO gave submission and IJ stated he did not need to hear from the Rep. IJ allowed appeal.

Submissions

Issues: Rely on RFRL dated 27.01.2023 and RR [respondent's review]

Case of Devaseelan applies. The PDs are the starting point. The determination of October 2017 found that whilst applying the lower standard of proof, the A failed to satisfy the IJ he was homosexual as claimed. It was also found the A lacked credibility and this was upheld by the IJ of the UT [Upper Tribunal] in May 2018.

The A has provided letters of support from friends who claim to have known A for years. These letters have little details to the nature of the relationship they have and focus on the A's character rather than the issue of his sexuality. Whilst some mention they are aware, there is little details to support his claim. It is my submission little weight can be placed on them.

The A has failed to provide any evidence of any activities he has taken place in since being in the UK as an act of openly expressing his sexuality.

With respect to his relationship, there is very limited evidence to support the A's claim that he is in a relationship akin to marriage or cohabiting for the last 2 years with his partner. There is limited information from the partner, with both witness statements from him being brief, not detailing their relationship and one prescription addressed to him on SB450 dated from January 2023 to show cohabitation.

I would submit the A has not provided sufficient evidence to go behind the previous findings, and that he would not be at risk of persecution upon return.

IJ stated he didn't need to hear from the Reps, he has taken account of his WS and evidence within the bundle and notwithstanding some issues he has with the evidence, the Respondent didn't challenge the evidence and therefore the appeal is allowed."

33.          Mr Jegede, who attended the hearing before the Judge, raised no express objection to the summary of evidence and submissions presented in the appeal hearing minute.

34.          Though not required by the parties to make findings of fact as to what was put to the appellant in cross-examination, I observe the Judge's reference at [7] of his decision that the appellant "was cross-examined in a fashion" and the minute's reference to "PO asked questions regarding the relationship, as this is not accepted within the RFRL".

Analysis

35.          The target of the Secretary of State's appeal is the Judge's direction issued consequent to his concluding that there was a lack of challenge by the Secretary of State to the appellant on the principal controversial issues. The Judge was exercising discretionary power under rule 14 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 when directing that further witnesses were not required to be called by the appellant. The Judge did not identify under which subsection of rule 14 he exercised his powers, but both (b) - the nature of the evidence or submissions required - and (d) - any limit on the number of witnesses whose evidence a party may put forward, whether in relation to a particular issue or generally - could be utilised for the direction. Consequently, Mr K, having attended the hearing, was not required to give evidence and did not formally adopt the witness statement served upon the Secretary of State earlier that day. Additionally, a second witness was not called.

36.          The Judge proceeded on this course consequent to his conclusion that the respondent had not challenged the appellant's account as to being homosexual and in a relationship with Mr K. It is unclear from the Judge's decision as to what, precisely, he expected to be put to Mr K. A fair reading of [7] is that he required the presenting officer to expressly put to the appellant that he is not homosexual and that he is not in a relationship with Mr K. This form of cross-examination is common in criminal trials. The Immigration and Asylum Chamber has long been mindful that the Secretary of State is regularly represented by civil servants, and due care is required in the questioning of appellants and witnesses who assert a personal history of torture or having been subject to sexual violence, as well as to discussion about sexuality by persons whose cultural and community background experiences may hinder open discussion.

37.          A question not addressed by the Judge was whether the appellant had clear notice of the Secretary of State's position as to his asserted sexuality and relationship with Mr K prior to giving evidence at the hearing. I observe that the appellant's witness statement of October 2023 addressed issues raised by the respondent's decision of January 2023.

38.          In considering the lawfulness of the judicial direction, I am required to address the rule of professional practice in respect of cross-examination to credit, namely questioning that seeks to undermine testimony by targeting a witness's personal credibility, before considering the Secretary of State's complaint as to being denied the opportunity of cross-examining Mr K and a second witness.

39.          It is trite law that as a generality in asylum appeals, the appellant bears the burden of proof in establishing their case. It is trite law that English law operates an adversarial system, and in asylum appeals the parties frame the issues for a judge to decide. This is incorporated into Immigration and Asylum Chamber practice by the guidance in Lata (FtT: Principal Controversial Issues) [2023] UKUT 163 (IAC), [2023] Imm AR 1416. The respondent's review, as addressed above, clearly identified the appellant's sexuality and his relationship with Mr K as an issue to be considered by the Judge.

40.          The judge's role is normally limited to determining the issues based on the evidence adduced by the parties. A judge does justice between the parties in so doing: Air Canada v Secretary of State for Trade (No. 2) [1983] 2 AC 394, 438G, per Lord Wilberforce

41.          It is also trite law that it is an important part of a judge's role to ensure that the proceedings are fair.

42.          A witness who gives evidence is liable to be cross-examined. In general, a party is required to challenge in cross-examination the evidence of any witness if he wishes to submit to a tribunal that the evidence should not be accepted on that point. This requirement serves the important function of permitting a witness the opportunity to explain any contradiction or alleged problem with their evidence. This rule of professional practice has a long history, being considered in The Queen's Case (1820) 2 Brod & Bing 284. This rule of professional practice is often referred to as the rule in Browne v Dunn (1893) 6 R 67, per Lord Herschell, at 70-71.

43.          The rule was expressed by Lord Neuberger and Lord Mance in Chen v Ng [2017] UKPC 27, at [53], in these terms:

"53. ... In other words, where it is not made clear during (or before) a trial that the evidence, or a significant aspect of the evidence, of a witness (especially if he is a party in the proceedings) is challenged as inaccurate, it is not appropriate, at least in the absence of further relevant facts, for the evidence then to be challenged in closing speeches or in the subsequent judgment ..."

44.          The purpose of the rule is not for the benefit of the witness but to ensure the overall fairness of the proceedings for the parties. Maintaining fairness includes enabling a judge to make a proper assessment of all the evidence to achieve justice in the cause. The rule is directed to the integrity of the court process itself: Griffiths v Tui (UK) Ltd [2023] UKSC 48, [2023] 3 WLR 1204, per Lord Hodge at [70(v)].

45.          The application of the rule results in a party that decides not to cross-examine on a particular important point being in difficulty in submitting that the evidence should be rejected because of the witness being unaware that their evidence is not accepted.

46.          Ideally, any ground for a judge to doubt the evidence of a witness ought to be put to the witness, but that is not an absolute requirement in every case. The rule is flexible.

47.          In Markem Corp v Zipher Ltd [2005] EWCA Civ 267, at [60]-[61], Jacob LJ approved the statement of Hunt J in the Australian decision of Allied Pastoral Holdings v Federal Commissioner of Taxation (1983) 44 ALR 607, at 634:

"I remain of the opinion that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings."

48.          Lord Herschell conceded in Brown v Dunn that there was no obligation to raise such a matter in cross-examination in circumstances where it is "perfectly clear that (the witness) has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling". This was acknowledged by Lord Neuberger and Lord Mance in their joint judgment in Chen v Ng, at [53].

49.          The Secretary of State's case is that the appellant was on notice that she did not believe him to be a homosexual male who is in a relationship with Mr K, as affirmed in her reasons for refusal letter and in her respondent's review. Consequently, she was not required to cross-examine to credit. However, she accepts that she was required to cross-examine Mr K as to his credibility, as he was not on notice because the reasons for refusal letter was not directed to him, and the denial of her ability to cross-examine Mr K resulted in procedural unfairness.

50.          Mr Wain contended that unfairness flowed from the Judge's erroneous understanding of the Secretary of State's case. The rule of professional practice did not apply in the particular circumstances arising where (i) the Devaseelan starting point was a judicial finding of fact that the appellant is not homosexual, (ii) the Secretary of State did not deviate from this finding in her decision letter nor concede the issue in her review, as detailed above, (iii) the appellant was on notice of the Secretary of State's position consequent to both the decision letter and the contested issues identified by the review, (iv) the appellant sought to address the Secretary of State's position explained in her decision by witness statement evidence, which was adopted at the hearing, that pre-dated the review, with no additional oral evidence presented in examination-in-chief, and (v) the Secretary of State did not consider the evidence presented by the appellant to have merit. She was required, through Ms Khan, to test the evidence of Mr K because (i) he had not appeared before Judge Malcolm, and (ii) his witness statement had been served on the morning of the hearing and consequently the Secretary of State had not placed him on notice of any concerns as to credibility.

51.          The Secretary of State was denied the opportunity to cross-examine a second witness, though neither Mr Wain nor Mr Jegede addressed the potential evidence of this witness.

52.          Mr Jegede submitted the Judge lawfully concluded that the failure of the Presenting Officer to expressly challenge the appellant's assertion that he is homosexual and in a relationship with Mr K resulted in a lawful direction preventing Mr K being cross-examined.

53.          A judge possesses a discretionary power to limit cross-examination. However, undue restriction on a party's ability to cross-examine may lead to a decision being set aside. In Hayes v Transco Plc [2003] EWCA Civ 1261, Clarke LJ stated, at [59], that nothing in the judgment was intended to fetter in any way the useful power which a judge has to control cross-examination, which can often be unnecessarily prolix or even unnecessary altogether. However, it is a fact specific exercise and on the facts of the case before the Court of Appeal a decision by the trial judge to restrict cross-examination of a crucial witness to five more minutes was wrong in principle and unfair to the other party.

54.          Underpinning the Judge's direction was a failure to consider whether the appellant was clearly on notice that his assertions as to sexuality and relationship were not accepted. The Secretary of State's case at the submissions stage, after the direction was issued, can properly be identified as being that by the end of his examination-in-chief, and considering his witness statement and supporting letters, the appellant's evidence was lacking in detail as to his sexuality even after having been placed on clear notice that he was not believed. I was not asked by the parties to find whether clear notice had been given at this error of law stage. This is a mixed question of fact and law. I consider it sufficient at the error of law stage that the question as to clear notice was not considered when discretion was exercised to deny the Secretary of State the opportunity to cross-examine Mr K. I consider, on the facts arising, that it was wrong in principle for the Judge to conclude that he was required to find the appellant credible as to core elements of his case and so deny the Secretary of State the opportunity to cross-examine the appellant's two supporting witnesses as to credit. I conclude that the failings identified are such that it was not reasonably and lawfully open to the Judge to adopt this course on the particular facts arising. Consequent to the unlawful direction, the Judge did not lawfully consider the evidence before him in the round. His reasoning is fatally infected by the procedurally unfair approach adopted.

55.          The Judge's reasoning is adversely impacted by procedural unfairness, and the only proper course is to set aside the decision in its entirety.

Remittal

56.           I observe the guidance in Begum (Remaking or remittal) Bangladesh [2023] UKUT 46 (IAC). As the decision of the First-tier Tribunal is set aside for procedural unfairness, and the remaking will require evidence from, and examination of, the appellant and potentially two additional witnesses, I consider it fair and just to remit this matter to the First-tier Tribunal

Notice of Decision

57.          The decision of the First-tier Tribunal is set aside for material error of law. No findings of fact are preserved.

58.          The appeal is remitted to the First-tier Tribunal sitting in Birmingham to be heard by any judge other than First-tier Tribunal Judge Cartin.

59.          An anonymity order is confirmed above.

 

D O'Callaghan

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

7 February 2025