Heard at Field House

[2003] UKIAT 00029 M (Peru)
On 2 July 2003 

IMMIGRATION APPEAL TRIBUNAL

                                                                                  Date Determination notified:
                                                                                        ...14TH July 2003...

Before:

Mr K Drabu (Chairman)
Mrs S Hussain JP

Between

APPELLANT

and

SECRETARY OF STATE FOR THE HOME DEPARTMENT

RESPONDENT
Representation:
For the appellant:		Ms S Khan of Counsel instructed by Nirmal Jay & Co, solicitors
For the respondent:	Ms J Webb, Senior Home Office Presenting Officer

DETERMINATION AND REASONS

1.	This appeal raises a short but important point. The appellant is a citizen of Peru. An Adjudicator Mr F E P Meadows dismissed his appeal against the decision of the respondent to refuse variation of leave to remain following refusal to grant asylum. He had produced a number of documents, which he said in his oral evidence before the Adjudicator, supported his claims of having been arrested twice and tortured whilst in detention. These documents had been lodged only two days before the hearing of the appeal. Although Counsel for the appellant explained to the Adjudicator that the delay in lodging the documents was due to her having been on leave, the Adjudicator said, “The actions of a genuine asylum seeker would have been for copies of all of the documents referred to in bundle to have been submitted by the Appellant to the Respondent at the earliest opportunity to allow their authenticity to be checked. Applying the principles set out in Tanveer Ahmed having looked at the evidence in the round I do not consider that reliance can be placed on any of the documents referred to in the Appellant’s bundle (A9 to A29)”

2.	In giving permission to appeal to the Tribunal, Mr J Barnes, Vice President said” The adjudicator placed no reliance on documents produced late because he considered this prevented any opportunity for their verification. Whilst he prayed in aid the Tribunal decision in Tanveer Ahmed [2002]UKIAT 00439, it is arguable that he did not apply its principles to his decision.”

3.	Ms Webb did not advance any argument to support the Adjudicator’s decision. She readily agreed with Ms Khan’s submission that the case required fresh hearing before a different Adjudicator. 

4.	In our judgment the Adjudicator’s approach to and his appraisal of the documents submitted late by the appellant was wrong. Having, in his discretion, admitted the documents in evidence despite their late submission, it was his duty to appraise the documents fully and fairly. His “reliance” on the Tanveer Ahmed decision of the Tribunal is little more than a mechanical recitation of the citation of this case. He has not explained how and why applying the principles set out in Tanveer Ahmed decision, the documents submitted by the appellant could not be relied upon. It was his duty to do so. In our view there is nothing in the decision of Tanveer Ahmed that justifies the view that documents submitted late cannot be relied upon. Furthermore we note that there was no direct challenge to the authenticity of the documents from the respondent’s representative before the Adjudicator. The Adjudicator should have asked the respondent’s representative for his views on the documents and should have, in fairness, invited him to ask for an opportunity to consider the documents fully. He did not. It is unsatisfactory for an Adjudicator to treat documents in this way when there is no challenge to their authenticity from the respondent. That does not mean that in the absence of an explicit challenge from the respondent an Adjudicator must always accept a document as genuine. Enough has been said on this subject by the Courts in the cases of Chen and Oleed and by the Tribunal in Tanveer Ahmed. Without wishing to repeat all the principles set out in these cases we believe that the underlying principle requires reiteration. The underlying principle rests on our duty to act fairly and equally. For the process of adjudication to be fair and to be seen to be fair, an Adjudicator should be extremely careful in making findings on issues, particularly with regard to the reliability and weight to be accorded to documents, in the absence of representations from parties. In this case the Adjudicator had not been asked by the respondent’s representative not to find the documents reliable. He could have but did not. He simply drew the Adjudicator’s attention to the delay in lodging these documents. A document tendered in evidence does not have to be verified before it is treated as authentic. Further an “unverified” document can attract as much weight as one that has been verified. Similarly there is no requirement that a claim of arrest or torture has to be corroborated by documentary evidence. In this appeal the Adjudicator not only disregarded the documents as items of evidence but also disregarded the oral evidence about arrests and detentions only on the basis that these claims had not been corroborated. The determination of the Adjudicator is therefore unsustainable.

5.	The appeal is allowed but only to the extent that it is heard afresh by an Adjudicator other than Mr F E P Meadows.

 
K Drabu
Vice President