Entry Clearance Officer, Dhaka v. Khan

ENTRY CLEARANCE OFFICER, DHAKA v KHAN

IMMIGRATION APPEAL TRIBUNAL

[1990] Imm AR 593

Hearing Date: 30 August 1990

30 August 1990

Index Terms:

Adjudicator -- record of proceedings -- part-heard appeal -- different presenting officer had appeared at resumed hearing -- requested copy of record of proceedings of earlier hearings -- refused -- whether proper exercise of adjudicator's discretion -- whether adjudicator entitled to seek undertakings from the parties that in some particulars they would not exercise what he thought were their statutory rights of appeal -- obligation of adjudicator to keep a proper record of proceedings that would not require editing. Immigration Appeals (Procedure) Rules 1984 r 18(1).

Held:

The entry clearance officer, Dhaka, appealed to the Tribunal against an adjudicator's determination on the grounds that there had been procedural irregularities in the course of the hearing. The appeal had been adjourned part-heard: at a resumed hearing a different Home Office presenting officer appeared. He asked for a copy of the record of proceedings which the adjudicator had kept of earlier sessions. That request was refused, although apparently a copy was then suppled to the appellant's representative. The adjudicator had sought undertakings from both representatives that if provided with a copy of the record they would not seek to appeal on the basis of anything contained therein. He described his record of proceedings as "but a cryptic judicial note made to assist me in making a determination or, when edited, to assist the appellate authorities." Held: 1. While the adjudicator may have been correct in stating that no party to proceedings had any right to bespeak a copy of the record during the course of the proceedings, he had a discretion to release a copy. In the interests of justice and in the events which had happened, he should have exercised that discretion in favour of the request. 2. The adjudicator erred in seeking the undertakings he had sought from the parties, albeit in the event no right of appeal could have arisen in relation to the contents of the record of proceedings at that stage. 3. The Procedure Rules required that an adjudicator keep a record of proceedings, which was receivable as evidence in any subsequent proceedings before the Tribunal and such a record should not require editing or be edited. In fact, on inspection, this adjudicator's record of proceedings did not require any editing.

Cases referred to in the Judgment:

R v Immigration Appeal Tribunal ex parte Lila [1978] Imm AR 50.

Counsel:

Mrs P Culley for the appellant; Shafique Khan, the sponsor, for the respondent PANEL: DL Neve Esq (President), GW Farmer Esq (Vice-President), AG Jeevanjee Esq

Judgment One:

IMMIGRATION APPEAL TRIBUNAL: The Entry Clearance Officer, Dhaka, appeals to the Tribunal against the determination of an adjudicator allowing the appeal of the respondent, Nazrul Islam Khan, against the refusal of entry clearance. He claimed to be the son of Shafique Khan, who is settled in this country. Mrs Culley asked us to remit this appeal to another adjudicator for hearing de novo on the ground that there had been procedural irregularities at the hearing. The adjudicator had started to hear the appeal on 4 May 1989. Following this, it came before him a further six times -- in June, August, September and October 1989, and in February and March 1990. The adjudicator's determination is dated 25 April 1990. During these proceedings the Home Office had been represented by various officers -- a Miss Gooch at the original hearing on 4 May; a Mr Woods in June; Miss Gooch again in August; Miss Dignum in September; Mr Atherton in October; and Mr Trent on the last two occasions on 16 February and 29 March. It was on these two last occasions that things went wrong. The adjudicator's record of proceedings records the following events: "Mr Trent Miss Gooch had started cross examination and should have been her case. I understood hearing date should have been agreed with her. I need Record of Proceedings and time to read it. There is no note on my file of questions and answers or what has transpired up to now. I asked for Record of Proceedings on Wednesday (14 February 1990). Mr Haq Ready to proceed -- object to adjournment. Miss Gooch is in another Court today (here). I object. 11.00 Adjudicator -- Adjourn for 5 minutes to let Mr Trent and Mr Haq confer. Mr Haq I agree to Mr Trent's request provided we have an early hearing date. I do not need an interpreter. Adjudicator As requested I adjourn to the 29 March 1990. I require undertakings for the requested copy of my Record of Proceedings of 4 May 1989. Mr Haq and Mr Trent both undertake verbally that in consideration of their being supplied with a photocopy of my Record of Proceedings for 4 May 1989 no appeal shall be brought on account of what is or is not contained in my Record of Proceedings. I adjourn to 29 March 1990 Resumed Hearing 29 March 1990 Representation for Appellant Mr Haq for Respondent Mr Trent Mr Trent I have not received Record of Proceedings. My senior officer has instructed not to take any further part. Adjudicator (Twice) Is the Respondent not prepared to be represented? (Third) Is the Respondent not prepared to be represented? Mr Trent That is the position. Adjudicator Nobody prepared to help you? Mr Trent No Adjudicator Reads Note Annexed Mr Haq Undertaking was as stated. I am ready to go ahead. Mr Trent should have stuck to undertaking he gave verbally. I resist any application. Mr Trent has had file for last month and he should continue. It is a simple case -- documents submitted. I ask that appeal be allowed in spite of non cooperation by Respondent. I ask for hearing today." The adjudicator concluded the hearing on that day. The adjudicator records in his determination: "On the 16 February 1990, Mr C Trent, Home Office Presenting Officer informed me that the case had been allocated to Miss Gooch who was then in another Court. He informed me that there was no record on his file of questions asked by Miss Gooch and of answers given thereto nor was there on file any record of what had transpired up to the date. He stated that he had written to my clerk on the 14 February 1990 requesting a copy of my Record of Proceedings. That was inaccurate. He had in fact written only two days before the hearing requesting a typed copy of my Record of Proceedings, not a copy of it. I informed Mr Haq and Mr Trent that if either of them desired a copy of my Record of Proceedings I would be prepared to assist them by supplying a photocopy on receipt of an undertaking that no appeal should lie on account of what was contained in or not contained in my Record of Proceedings. Both Mr Haq and Mr Trent undertook verbally that in consideration of their being supplied with a photocopy of my Record of Proceedings for the 4 May 1989 no appeal should be brought on account of what is or is not contained in my Record of Proceedings. A reply to Mr Trent's letter of the 14 February 1990 was sent by my clerk on the 6 March 1990; it requested an undertaking:- (1) That no appeal should lie on account of what is contained or not contained in the Record of Proceedings, and (2) That the said Record of Proceedings was supplied purely to assist in the presentation of the Respondent's case. I would here comment that my Record of Proceedings is but a cryptic judicial note made to assist me in making a Determination or, when edited, to assist the appellate authorities. Not properly edited and purely in its original form it would be easily capable of misinterpretation by anyone other than the author. In addition, no party to proceedings has any right to bespeak a copy of it during the course of proceedings. If the Respondent had been represented by counsel or solicitor I might well not have requested a written undertaking because any breach thereof could have been a matter for me to raise with the appropriate professional body. As it was, in a subsequent letter to my clerk dated the 19 March 1990 Mr Trent declined to confirm the undertaking which he had given verbally. It would thus appear that I was right to request written confirmation of the undertaking which was seemingly meaningless and it is the first occasion that I have encountered an accredited representative who has not regarded an undertaking given by him in Court as being binding on him. When the hearing of the appeal resumed on the 29 March Mr Trent stated that not having been supplied with a copy of my Record of Proceedings, he had been instructed not to take any further part in the proceedings. It was then necessary for me to ask three times if the Respondent was not prepared to be represented, before Mr Trent replied that that was the position. Mr Haq confirmed that the undertaking given was as I had stated and he felt that Mr Trent should have stuck to the undertaking which he gave verbally." The grounds of appeal complain that the adjudicator erred in seeking to fetter the respondent's right of appeal to the Tribunal on any matter which fell within the Tribunal's jurisdiction; also that his conduct of the proceedings offended against the requirements of openness and fairness, by allowing the appellant before him a copy of his record, whilst denying it to the respondent before him. In consequence, he reached his conclusion on the untested oral evidence which had not been the subject of a full cross-examination. Not surprisingly, Mr Khan did not argue the procedural points, but simply relied on the contents of a letter which he had put in, stressing the genuineness of the respondent's relationship to him and the history of two of his other alleged children who had eventually been admitted to this country. Having listened to the submissions and examined the documents on the file, it appears to us that the adjudicator certainly misdirected himself. It is clear to us from the papers that the unfortunate events which occurred were the result of a clash of personalities between the adjudicator and the presenting officer, which is much to be regretted. No doubt the Home Office representatives were somewhat to blame, in that they failed so to arrange matters that Miss Gooch had the conduct of the appeals throughout the substantive hearings. Furthermore Mr Trent could properly have been expected to have learnt from Miss Gooch what had transpired and what points remained to be made. This being said, we consider it regrettable that the adjudicator appears to have been determined to keep his record of proceedings to himself. His refusal to supply a typed copy of proceedings was, in our view, entirely reasonable, but it should not have been difficult to have supplied a photocopy of the manuscript. Whilst he was possibly correct in stating that no party to proceedings has any right to bespeak a copy of the record during the course of proceedings, it was within his discretion to supply a copy, and in the circumstances of this case it is a discretion which we consider he should have exercised. Failure to do so could lead to the complaint that this amounted to "hole in the corner" justice. We also query the adjudicator's statement that his record of proceedings is "but a cryptic judicial note made to assist me in making a determination or, when edited, to assist the appellate authorities". In fairness to him, his record of proceedings does not appear to us to be cryptic (we note that the Oxford Dictionary definition of "cryptic" is "of mysterious purport, veiled in obscurity"). This is just as well, because rule 18(1) of the Procedure Rules provides that the record of proceedings shall be received by the Tribunal as evidence. This being the case, the adjudicator's suggestion that the record can be "edited" is particuarly regrettable, and indeed a serious misdirection. We also consider that the adjudicator was in error in demanding an undertaking from the parties not to exercise what he considered was their statutory right: although there was no such right (to appeal against an interlocutory ruling) -- see Lila [1978] Imm AR 50. In view of all these matters, this appeal is remitted to another adjudicator under rule 21 for hearing de novo, and in our view the sponsor (Mr Khan) would be well advised seriously to consider the possibility of obtaining DNA blood tests to establish the respondent's claim.

DISPOSITION:

Appeal allowed

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