Poudel v. Secretary of State for the Home Department



[1991] Imm AR 567

Hearing Date: 10 June 1991

10 June 1991

Index Terms:

Evidence -- admissibility -- immigration officer's notes of interview with appellant under challenge -- whether admissible without the immigration officer being produced as a witness -- whether immigration appellate authorities bound by the provisions of the Civil Evidence Act -- whether the Procedure Rules were ultra vires the 1971 Act. Civil Evidence Act 1968 ss 2, 18: Immigration Act 1971 ss 3(5), 22(1), 24(1)(b): Immigration Appeals (Procedure) Rules 1984 r 29(1).


The appellant had appealed against the decision of the Secretary of State to initiate deportation proceedings against him pursuant to section 3(5)(a) of the 1971 Act (as amended). His rights of appeal were restricted by the 1988 Act. The Secretary of State had decided to deport the appellant because, he had concluded, the appellant had breached the condition attached to his leave. That the appellant had worked in breach of condition was contested and in that regard the notes of an interview with an immigration officer were challenged. Counsel submitted that the notes were not admissible unless the immigration officer who made them was produced as a witness. He based his contention inter alia on the provisions of the Civil Evidence Act 1968 and an assertion that the relevant provisions of the Procedure Rules were ultra vires. The Tribunal ruled on the admissibility of the notes. Held: 1. The plain wording of section 18 of the Civil Evidence Act 1968 showed that its provisions did not apply to proceedings before the immigration appellate authorities. 2. The Procedure Rules were properly made under the express provisions of section 22(1)(b) of the 1971 Act: the discretionary powers in the rule were wide and the admission of evidence such as was in dispute was not limited to evidence from overseas or evidence only relating to particular issues. 3. In proceedings that arose from a decision to deport a person who was in breach of a condition attached to his leave, the Secretary of State had elected to pursue civil proceedings: he had not elected to treat the person as having committed a criminal offence, and thus rules of evidence applying to criminal proceedings were not relevant. 4. It was a matter for an adjudicator or the Tribunal to give such weight as was thought proper to admissible documentary evidence where a witness who could speak to that evidence was not produced.

Cases referred to in the Judgment:

Khawaja v Secretary of State for the Home Department [1984] AC 74; [1982] Imm AR 139.


AM Azhar for the appellant; Mrs P Culley for the respondent PANEL: Professor DC Jackson (Vice-President), N Kumar Esq JP, P Rogers Esq JP

Judgment One:

IMMIGRATION APPEAL TRIBUNAL: The appellant, a citizen of Nepal, appeals against a decision of the Chief Adjudicator (Mr M Patey MBE) dismissing his appeal against the decision to make a deportation order against him by virtue of section 3(5)(a) of the Immigration Act 1971. The case falls within the ambit of section 5(1) of the Immigration Act 1988 and the grounds of appeal are therefore restricted to asserting that there is in law no power to make the deportation order for the reasons stated in the notice of decision. The notice of decision reads: "On 5th October 1989 you were given a leave to enter the United Kingdom for six months subject to a condition prohibiting employment. The Secretary of State is satisfied that you failed to observe the condition attached to your leave by taking employment". The substantive issue before the Chief Adjudicator and before us is whether on the evidence the appellant has been shown to have acted in breach of his condition through taking employment. In interlocutory proceedings the Tribunal indicated to Mr Azhar and to the representative of the Secretary of State that in the circumstances of the case the Tribunal would be prepared to hear such evidence as either party would wish to adduce before it whether or not this had already been adduced before the Chief Adjudicator. At the hearing before the Chief Adjudicator there was raised by Mr Azhar the question of summoning as a witness an immigration officer who had interviewed the appellant following discovery of the alleged employment. The Tribunal indicated its view to the parties' representatives that unless the parties agreed, the Tribunal would not issue a witness summons to make available a witness for cross-examination by the party who wished to call the witness. The Tribunal would consider issuing a witness summons at the instance of either party to call any witness, but this would mean that the witness was the witness of the party obtaining the summons. Following an indication of this view by letter of 5 April 1991 notes of interview were sent to the Tribunal by Mrs Culley, and these notes were sent (probably on 15 April 1991) to Mr Azhar's instructing solicitors. On 9 May 1991, when the case was listed for hearing, Mr Azhar told us that he had not seen the copy statement of the interview notes until that morning and that he wished to challenge the admissibility of this written evidence. The Tribunal accepted that Mr Azhar had not had the opportunity to prepare his challenge and also accepted Mr Azhar's contention that he could not decide whether to seek a witness summons for the immigration officer until the Tribunal had ruled on admissibility. In these circumstances the issue of admissibility was listed for hearing on 29 May 1991, and the substantive hearing for 19 June. This ruling concerns the admissibility of the notes of interview. Mr Azhar helpfully produced for us a summary of his argument. As Mr Azhar said, the admissibility of evidence before the Tribunal is governed by the Immigration Appeals (Procedure) Rules 1984. Rule 29(1) of those rules reads: "29(1) An appellate authority may receive oral, documentary or other evidence of any fact which appears to the authority to be relevant to the appeal, notwithstanding that such evidence would be inadmissible in a court of law". The rules are made under section 22 of the Immigration Act 1971. Section 22(1) reads: "22(1) The Secretary of State may make rules (in this Act referred to as "rules of procedure") -- (a) for regulating the exercise of the rights of appeal conferred by this Part of this Act; (b) for prescribing the practice and procedure to be followed on or in connection with appeals thereunder, including the mode and burden of proof and admissibility of evidence on such an appeal; and (c) for other matters preliminary or incidental to or arising out of such appeals, including proof of the decisions of adjudicators or the Appeal Tribunal". It follows from the statutory authority and the rule made under it that the power of the Tribunal to receive evidence appears only to be limited by relevance. Mr Azhar's argument is that the statement recording the notes of interview should not be admissible unless the maker of the statement ie the immigration officer also gives evidence. Mr Azhar stressed that there were challenges to the notes of interview and, in particular, as to whether a caution had been given, and that he would not be able fully to mount the challenge unless the immigration officer appeared. In arguing that the Tribunal did not have the power to admit the statement unless its maker also gave evidence, Mr Azhar contended: i that the rule was outside the authority of the Secretary of State conferred by the Immigration Act; ii that the purpose of the rule was to permit the admissibility of evidence from abroad -- such as explanatory statements of entry clearance officers and documents in support of applicants' claims; iii the rule should not be read so as to permit admissibility of a statement without evidence given by its maker where the consequences of the establishing of an assertion against an applicant were as serious as they would be here ie removal from the country. In arguing these points Mr Azhar drew our attention to section 2 of the Civil Evidence Act 1968. That is concerned with the admissibility of statements in "civil proceedings" whether or not the person making the statement is called as a witness. However "civil proceedings" is defined in section 18 of the Civil Evidence Act 1968 as including, in addition to civil proceedings in any of the ordinary courts of law, "civil proceedings before any other tribunal being proceedings in relation to which the strict rules of evidence apply . . . but does not include civil proceedings in relation to which the strict rules of evidence do not apply". It necessarily follows that the provisions of the Civil Evidence Act on which Mr Azhar relies simply do not apply to the question of the admissibility of evidence before the Tribunal. As to the question of the vires of the rule in respect of section 22 of the Immigration Act 1971, it seems to us that the rule falls within the express power conferred (see section 22(1)(b)). Further, it does not seem arguable that the ambit of the rule is to be restricted depending either on whether the evidence consists of statements made in this country or abroad or the issue in relation to which the evidence is relevant. The rule is clear in its meaning and confers a wide power. We therefore reject Mr Azhar's argument that there is no power in the Tribunal to admit the notes of interview unless the immigration officer also gives evidence. As to our discretion, Mr Azhar relied on the points he had already made going to the power and, in particular, the seriousness of the consequences of establishing the assertion against the applicant. Mr Azhar also drew a comparison between the strict rules of evidence which would apply in relation to a criminal prosecution and the rules which would apply were we to read the power conferred by rule 29 as widely as we do. Mr Azhar asserted that the breach of condition of leave was both a ground of deportation and a criminal offence under the Immigration Act 1971 section 24(1)(b). Mr Azhar argued that to admit evidence in proceedings before the Tribunal which would not be admitted in criminal proceedings was to avoid the intention of Parliament that proof of conduct amounting to a criminal offence must be subject to the strict rules of evidence. Mrs Culley pointed out that the criminal offence of acting in breach of conditions of leave required that the applicant acted "knowingly", and contended that the Immigration Act provided both for criminal prosecution and for deportation proceedings based on breach of condition. We agree with Mrs Culley that the Immigration Act 1971 clearly provides both for criminal and civil proceedings. The fact that the Secretary of State chooses to proceed under section 3(5) and to take a decision to make a deportation order on the basis of breach of condition attracts the rules of evidence appropriate to those proceedings. It is simply not arguable that because the Act provides for both criminal and civil proceedings on an identical ground the rules of evidence applicable to criminal proceedings in a court should therefore be applied to civil proceedings before the Tribunal. There is no ground why our discretion as to the admissibility of evidence should be governed by the fact that the ground of the deportation proceedings might also have been a ground in criminal proceedings. Finally, in respect of his contention as to the seriousness of the consequences for the applicant, Mr Azhar referred us to the well-known case of Khawaja v Secretary of State [1984] AC 74. Mr Azhar cited a number of passages from the judgment in that case going to the need for a high standard of proof because the question of illegal entry involved the liberty of the subject. Mr Azhar contended that the production of notes without calling the author of the notes would not meet the requirement. In our view this argument by Mr Azhar is, with respect, misplaced. Mrs Culley sought to draw a distinction between illegal entry cases and deportation cases, the latter, as she said, carrying a right of appeal even if somewhat restricted. However, to us the critical point is that in Khawaja the House of Lords were considering the ambit of the court's power on judicial review. There is no question as to the Tribunal's power in appeals and, in particular, in respect of the present appeal, its restricted jurisdiction. Within that restricted jurisdiction there is equally no question as to the power to admit evidence. The fact that an executive decision has serious consequences for an individual is a matter to be borne in mind when considering the standard of proof to be applied and whether the standard has been met. It would be the rare case where the serious consequences of a decision for an individual would dictate that evidence which is relevant to whether or not the decision is justified should be excluded. Similarly we do not think that the question as to whether the appropriate standard of proof is the normal balance of probability or whether, as Mr Azhar argued, it was a higher degree because of the serious consequences goes to the admissibility of the interview notes. The issue before the Tribunal is a question of fact and it will be open to Mr Azhar, should he so wish, to argue the question of the appropriate standard of proof at the hearing on the merits. In our view the interview notes are relevant to the issue of fact before us, are therefore admissible and, in the circumstances of the case, should be admitted. Having held that the notes are admissible and should be admitted we add only this -- that it is for the Secretary of State to establish that the appellant has acted in breach of his condition and it is for the Tribunal to find whether or not, on the appropriate standard, the fact is established. In so doing, the Tribunal must base its decision on the evidence adduced before it. However, in considering documentary evidence it is open to the Tribunal to take into account the fact that, though available as a witness, the maker of a document has not been called.


Order accordingly


Hafiz & Co, London

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