MR (Pakistan) v Secretary of State for the Home Department [2026] EWCA Civ 473

[2026] EWCA Civ 473Case No CA-2025-000957
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge O’Callaghan
UI-2024-002014
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 16 April 2026
Before
LADY JUSTICE ASPLINLADY JUSTICE ELISABETH LAINGLORD JUSTICE SNOWDEN
Between
MR (PAKISTAN)AppellantSECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
Jay Gajjar and Muhammad Zahab Jamali (instructed by SAJ Legal Solicitors) for AppellantKatharine Elliot (instructed by the Treasury Solicitor) for RespondentHearing Hearing date: 25 February 2026Further written submissions 5 March 2026
Approved JudgmentThis judgment was handed down remotely at 5 pm on 16 April 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................

Introduction

[1]MR is a citizen of Pakistan. He is now 54. He came to the United Kingdom in June 2006 to visit his family. His leave was valid for six months. He has, however, never returned to Pakistan. The Secretary of State refused his 2012 application for leave to remain under article 8 of the European Convention on Human Rights (‘the ECHR’). In June 2017, after being encountered by police, he made an asylum claim, based on his fear of persecution in Pakistan as a gay man. The Secretary of State refused that claim, MR appealed and, in short, the First-tier Tribunal (Immigration and Asylum Chamber) (‘the F-tT’) rejected his claim, in determination 1. MR’s appeal rights were exhausted in June 2018.[2]He made several sets of further submissions. The Secretary of State rejected those but decided in January 2023 in the Decision that the most recent submissions, again based on MR’s fears as a gay man, amounted to a ‘fresh claim’. MR relied also on his durable relationship with AK. MR was thus entitled to appeal to the F-tT and did so. The F-tT’s view in determination 2 was that the Secretary of State’s failure to put to MR in cross-examination that he was not gay meant that the Secretary of State was not challenging his evidence on that point, and that, in that situation, it was entitled to direct that MR’s two proposed witnesses (who included AK) need not be called, and that the F-tT would ‘take note’ of their witness statements. The F-tT allowed the appeal, while nevertheless expressing, on several grounds, doubts about the credibility of MR’s claim.[3]The Upper Tribunal (Immigration and Asylum Chamber) (‘the UT’) (Upper Tribunal

Judge O’Callaghan:

‘Judge 3’) held that the F-tT had erred in law, and allowed the appeal of the Secretary of State in determination 3. MR now appeals to this court with the permission of Nugee LJ. The issue on this appeal is whether the F-tT did err in law in either or both of two parts of its approach to the appeal, which led it to decide to allow the appeal without giving the Secretary of State the opportunity to cross-examine AK. The first is its reliance on the repeated refusal of the Secretary of State’s Presenting Officer (‘the HOPO’) to put to MR in cross-examination that he was not gay and/or that he was not in a relationship with AK. The second is its decision that the HOPO had ‘tacitly accepted’
MR’s relationship with AK by the nature of her questions in cross-examination. The third, identified by the F-tT when it gave the Secretary of State permission to appeal to the UT, and by the UT in determination 3, is the F-tT’s refusal to decide the appeal on the evidence as a whole, despite the doubts which it expressed about the credibility of MR’s claim.[4]On this appeal MR was ably represented by Mr Gajjar. The Secretary of State was (as ably) represented by Ms Elliot. I thank counsel for their oral and written submissions.[5]For the reasons given in this judgment, I would dismiss this appeal. The UT was right to hold that the F-tT’s approach was wrong, because it had failed to ask itself, before preventing the cross-examination of AK, whether or not the HOPO’s refusal formally to put to MR that he was not homosexual and was not in a relationship with AK had caused any unfairness to MR. In the light of the Secretary of State’s consistent position throughout the process, it is difficult to see how the F-tT could have held that there was any unfairness. I do not need to go that far, as, like the UT, I consider that the F-tT’s exercise of its power to prevent further cross-examination was flawed by its failure to take into account a mandatory relevant consideration. I also consider that the F-tT erred in law in holding that its view that the Secretary of State had ‘tacitly accepted’ MR’s relationship with AK was in any way relevant to its exercise of its power to prevent further cross-examination. Finally, and in any event, it also erred in law in expressly deciding to rule out of account evidence which it considered undermined MR’s credibility.

Determination 1

[6]MR’s first appeal was heard by Judge Malcolm of the F-tT (‘Judge 1’). Judge 1 observed that the appeal hinged on MR’s credibility (paragraph 102). Judge 1 found that MR’s failure to claim asylum at an earlier stage (ie in the 11 years he was in the United Kingdom before he claimed) damaged his credibility (paragraph 102). He had a solicitor in 2012 when he made his article 8 claim, but only claimed asylum after he was arrested in 2017. He could have discussed his claim with his solicitor in 2012 (paragraphs 106 and 107). He had been in the United Kingdom unlawfully since the expiry of his six-month visa in 2006.[7]Taking the evidence at its highest, there were difficulties with the letters he had submitted to support his claim (paragraph 112). There were difficulties about the date of one letter (paragraph 113). The letter failed to mention a critical part of MR’s account (paragraph 114). A second letter purportedly from the police in Pakistan contained an implausible statement about MR’s ‘legal human right to select his own choice of sexual life’ (paragraph 115). Two letters were so similar that they must have been drafted in concert (paragraph 116). The letters gave limited support to his claim (paragraph 117).[8]Judge 1 did not find it credible that, having reported a sexual assault by his teacher to a police officer, that officer then required MR to ‘engage in sexual relations’ with him (paragraph 119). Judge 1 questioned why there were no statements from friends in Pakistan with whom MR was in contact who could have given detailed evidence of his problems in Pakistan (paragraph 120). The lack of evidence from such witnesses damaged MR’s credibility (paragraph 121).[9]The evidence about whether his current partner was willing to be a witness was contradictory (paragraph 122). The witnesses who did give evidence only provided evidence of limited or of no value (paragraphs 123-126).[10]There was no documentary evidence such as texts or WhatsApp conversations. Such evidence was not necessary but MR could have provided evidence from other witnesses (paragraph 127).[11]The rule 35 report was based on MR’s own account of an assault on him by ten members of his family and did not therefore corroborate that account (paragraph 128).[12]MR’s conviction after his plea of guilty to a charge of sexual assault on a woman was ‘somewhat at odds’ with his claim. He denied his guilt, but had pleaded guilty (paragraphs 129-130).[13]Judge 1’s conclusion, ‘taking an overall view of the evidence and whilst applying the lower standard of proof’ was that he was ‘not satisfied that [MR] is homosexual as claimed by him’ (paragraph 131).[14]Judge 1’s crucial findings, as summarised by Judge 2 in paragraph 15 of determination 2, were that MR was not a credible witness, and that his claim to be gay was not established even to the lower standard. Judge 2 also referred, in paragraph 1 of determination 2, to Judge 1’s findings that MR’s claim lacked detail, was inconsistent, and was undermined by his delay in telling the Secretary of State about it, and by his conviction for a sexual assault on a woman.

The Decision

[15]The reasons for the Decision are thorough and detailed. They are thirteen pages long. The Decision described the relevant grounds of MR’s claim. They were that he would be persecuted on his return to Pakistan as ‘a member of the LGBTI community’ and that he was in relationship with his partner who was a British citizen. The decision-maker listed the evidence considered in paragraph 12. The submissions previously considered were that he would be persecuted in Pakistan due to being homosexual, and that his removal would breach articles 2 and 3 of the ECHR.[16]The decision-maker referred to Devaseelan v Secretary of State for the Home Department(Second Appeals, ECHR, Extra-Territorial Effect) [2002] UKIAT 702; [2003] Imm AR 1 (‘Devaseelan’). Determination 1 was ‘an authoritative assessment of’ an appellant’s ‘status at the time it was made (paragraph 39). It was the ‘starting point’. If the appellant relies in a second appeal on ‘facts that are not materially different from those put’ in the first appeal, and supports the appeal by essentially the same evidence, the tribunal on a second appeal should ‘regard the issues as settled’ by the first determination and make its findings in line with it rather than allowing the issues to be re-litigated (paragraph 41).[17]MR’s claim had been fully considered by the F-tT (in determination 1). The decision-maker quoted extensively from determination 1, and summarised its effect. Judge 1 ‘failed to accept your claim to be a homosexual man and found your claim to lack credibility and was subsequently dismissed. Your claim that you would face persecution on return to Pakistan was therefore also dismissed’. That decision had been upheld by the UT.[18]The decision-maker considered MR’s asylum claim. He maintained his claim that he would be persecuted as a gay man if returned to Pakistan. The decision-maker considered the material MR had submitted. MR claimed to be in a relationship with AK. There was no evidence of a substantial relationship such as utility bills and no evidence of any attempt to register their marriage in the United Kingdom. There had been no response to the Secretary of State’s invitation on 9 November 2022 to submit further evidence. That failure supported the view that the relationship was not genuine and that MR would not face persecution on return to Pakistan as a gay man.[19]The decision-maker then considered the in-country information. It would not be reasonable to expect a person to conceal his sexuality to avoid persecution. But ‘there is no evidence that would overturn the original findings of’ the F-tT ‘in that regard… it remains unaccepted that you are living in the UK as a gay man and would face persecution on return to Pakistan’.[20]The decision-maker considered, and refused, a claim for humanitarian protection and article 3 and article 2 claims. The decision-maker then considered and refused an article 8 claim based on a relationship with AK. There was no evidence that there was any legal relationship, such as marriage or civil partnership. There was no evidence of cohabitation; further evidence had been sought and not provided. There was no proof that MR had cohabited with AK in a relationship akin to marriage for at least two years.[21]There was no evidence that, as claimed, AK was a British citizen. There was insufficient evidence of cohabitation to enable a claim to succeed under Appendix FM, for the reasons given in paragraph 42 of the Decision. That is a reference to Appendix FM to the Immigration Rules (HC 395 as amended). Finally, the decision-maker considered a claim based on private life. There were no very significant obstacles to reintegration in Pakistan, and no other exceptional or compassionate circumstances.

The Respondent’s review

[22]In her Respondent’s Review (‘RR’), the Secretary of State reported the outcome of a review of the case in response to MR’s appeal, to his appeal skeleton argument and to the documents in the appeal bundles. She made clear that she continued to rely on the Decision. She added that any points which were not addressed in the RR should not be taken as accepted.[23]The issues were whether MR was a homosexual and whether the F-tT should depart from the findings in decision 1. The Secretary of State addressed each issue (in paragraphs 5)-8) and 9)-10) respectively). The letter from AK was ‘brief’. It was not detailed. He said ‘I have known my partner for the last 2 years’. It did not say that they lived together. There was no up-dating statement. That called into question whether they were ‘in fact still in their claimed relationship’. The letters of support did not help. The only evidence that seemed to support the claim was a GP letter ‘verifying the same address as residence’. It should be given little weight as there was no other evidence to show that they lived together.[24]In the light of those points, the Secretary of State submitted that ‘the findings made by [Judge 1] in 2017 still stand’. The F-tT ‘should not depart from these based on the evidence submitted’. No article 3 medical claim had been made. The Secretary of State noted a psychological report from Dr Simblett in MR’s bundle. Dr Simblett did not have access to MR’s GP’s records; and there was no copy in the bundle. Limited weight should be given to the report since it was based on ‘a single interaction’ with MR.

Determination 2

[25]MR’s second appeal was heard by Judge Cartin of the F-tT (‘Judge 2’). MR was represented by a solicitor, Mr Jegede. The Secretary of State was represented by a HOPO. In paragraph 2 of determination 2, Judge 2 referred to a statement in the Decision that it ‘remained unaccepted that [MR was] living in the UK as a gay man and would face persecution on return to Pakistan’.[26]Judge 2 set out the definition of ‘refugee’ in the Refugee Convention. He said that the burden of ‘proving material facts is on [MR]…the standard of proof is the lower standard of risk on return. [MR] must discharge this in respect of future events by showing that there is a real as opposed to a fanciful risk that they will happen. Otherwise the ordinary civil standard on the balance of probabilities applies. This is the standard of proof in respect of Article 8 claimed facts’ (paragraph 4).[27]He also reminded himself, by citing a passage from Karanakaran v Secretary of State for the Home Department [2000] Imm AR of what he called ‘the positive role for uncertainty in protection claims…’ The tribunal should not refuse to consider matters unless ‘it has no real doubt that they did not in fact occur’. Nor should it exclude the possibility that things did not happen, unless it has ‘no real doubt’ that they did in fact happen (paragraph 5).[28]Under the heading ‘Principal Controversial Issues’, Judge 2 said, in paragraph 6, that the issue was MR’s ‘claimed homosexuality. It was to this end that he relied upon his relationship with AK as evidence of him being gay’. The focus of the rejection of the claim in the Decision was that the Secretary of State did not accept that MR was truthful, even to the lower standard.[29]In paragraph 7, Judge 2 then described the hearing. MR had been cross-examined ‘in a fashion’. He had ‘the benefit of an Urdu interpreter’. At the end of her cross-examination, Judge 2 had told the HOPO that she had not challenged MR’s assertions that he was gay and in a relationship with a man in the UK. She had told Judge 2 that she had asked all her questions. Judge 2 then ‘pointed out’ that it was his 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, I took the view that fairness dictated that their case should be put to [MR]. He must be given an opportunity to respond to that position. This was the essence of cross-examination. I made clear that it [sic] there was no challenge on these matters, I would make note to this effect and was likely to allow the appeal’ (paragraph 7).[30]Judge 2 explained in paragraph 8 that he had then been asked to rise so that the HOPO could take further instructions. He continued, ‘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’. Judge 2 had then risen for about ten minutes. The HOPO ‘remained steadfast in her position’. She had no further questions to ask. She would make submissions ‘on the evidence heard and she relied on’ determination 1 ‘in accordance with Devaseelan’. Judge 2 had then pointed out that the Secretary of State had ‘plainly accepted that there was further / new evidence since the decision’; otherwise the ‘fresh claim would not have been substantively considered’ and the current appeal would not have been held. ‘She nevertheless wished to ask no further questions’. Judge 2 had then ‘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’. Still the HOPO had asked no further questions (paragraph 8).[31]Judge 2 added, in paragraph 9, that ‘In view of… the lack of challenge to [MR] on the principal controversial issues’ he had indicated that he did not require any further witnesses to be called, and had made a direction to that effect under rule 14 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. Judge 2 had said that he would, instead, ‘take note’ of the witness statements of the witnesses who would have been called. He concluded that the Secretary of State ‘had elected not to challenge [MR’s] evidence and so there was in my view no need for further oral evidence to be heard’. Judge 2 had then heard submissions from the HOPO. He decided not to hear from MR’s solicitor. He announced that he was allowing the appeal (paragraph 10).[32]Judge 2, there being no objection from the HOPO, allowed a very late one-page letter from AK. Judge 2 was told that it was late because AK had not wanted to provide it any earlier (paragraph 11).[33]The Secretary of State’s submissions were ‘very brief’. The Secretary of State relied on the Decision, and on determination 1, in accordance with Devaseelan. The HOPO submitted that MR had shown no reason to depart from determination 1. Judge 2 was asked to give little weight to the letters of support. It was submitted that the evidence about MR’s sexuality was ‘lacking in detail’. There was very little evidence of MR’s claimed relationship. ‘No specific details were given about this’. The Secretary of State submitted that, in the circumstances, ‘there was insufficient evidence to merit a departure from the previous findings’ (paragraph13).[34]Judge 2 described his findings in paragraphs 14-21. He summarised the effect of Devaseelan in paragraph 14, in six points. He summarised determination 1 in paragraph 15 (see paragraph 14, above). Those findings were his starting point. MR had adopted his witness statement as his evidence in chief. He identified as a gay man. He claimed to have been discreet about that because of his fears until he had come to the United Kingdom. He claimed to take part in Birmingham Pride events and to have had at least four relationships with men while in the United Kingdom. He claimed to have been in a relationship with AK since 2019 and that they lived together (paragraph 16). In his cross-examination MR had given answers about his family in Pakistan which contradicted his statement that he had been disowned by his family (paragraph 17). Judge 2 referred in paragraph 18 to another inconsistency in MR’s evidence which was elicited in cross-examination.[35]Judge 2 nevertheless said that ‘Nowhere in the cross-examination was there any suggestion that this claim was fabrication. In fact the questions 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 [MR] is gay and in a relationship with a man’ (paragraph 19).[36]In paragraph 20, Judge 2 commented that ‘Notwithstanding the findings previously made some 7 years ago, this is the evidence which is now presented to me’ and that the relationship between MR and AK post-dated determination 1. He said that the Secretary of State ‘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’. Judge 2 ‘therefore’ found, ‘applying the lower standard’ that MR was homosexual and in a relationship with AK. He concluded, ‘That being the principal controversial issue, the appeal is allowed on asylum grounds’ (paragraph 21).[37]Judge 2 added a coda to determination 2, headed ‘Observations’. He said that if there had been ‘a challenge to the factual basis of [MR’s] claim, I would have shared [Judge 1’s] concerns over [MR’s] delay in mentioning his sexuality as a reason why he required international protection’ (paragraph 22). Had MR’s sexuality been challenged, Judge 2 would have considered that his conviction for a sexual assault on a woman undermined 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’ (paragraph 23).[38]In paragraph 24, Judge 2 commented on the ‘curious’ contents of a letter from MR’s GP. I think that this is likely to be the letter to which the Secretary of State referred in the RR (see paragraph 23, above). The first part of the letter was ‘unremarkable’. It was written in ‘ordinary English prose’. The section in bold text ‘reads very differently. The grammar and syntax is [sic] poor and in places the wrong word has simply been used’: for example, ‘worried’ not ‘worrying’.

Judge 2 dismissed this anomaly in the sentence:

‘However, this point is moot’
. This letter was not in any of the bundles for this appeal.[39]The report of Dr Simblett ‘had no bearing on my findings for the reasons that should be plain’. She nevertheless strayed beyond her field of expertise by discussing laws in Pakistan on sexual activity, ‘even proffering a suggestion that [MR] could be prosecuted for abuse he claims to have suffered as a child. No consideration is given to the possibility that [MR] might be feigning or exaggerating symptoms to assist in his asylum appeal. However, in the circumstances, the point is moot’ (paragraph 25).[40]The F-tT’s conclusion was that there had been no challenge to MR’s claim to be homosexual. There was no challenge to his claimed fear of persecution in Pakistan and no suggestion that that fear was not well-founded’. He had therefore shown that he was a refugee. The F-tT added ‘His claim for humanitarian protection therefore falls to be dismiss [sic]’. His appeal is allowed on human rights grounds for the same reason that the asylum ground succeeds (paragraph 26).[41]The F-tT made an anonymity order.

The appeal to the UT

[42]The Secretary of State appealed to the UT on the ground that the F-tT had made a material misdirection of law resulting in procedural impropriety. A different Judge of the F-tT gave permission to appeal. In its grant of permission to appeal the F-tT recognised why Judge 2 had had concerns that the Secretary of State had not put her case to MR. However, notwithstanding Judge 2’s ‘understandable frustrations’, it was arguable that ‘given the previous findings about [MR’s] homosexuality, and the other evidence in the case (which plainly caused him concern), Judge 2 had make a material error of law, by giving the appearance, at least, of closing his mind to those concerns and not considering matters as a whole’.

Determination 3

[43]The hearing in the UT (Judge of the Upper Tribunal O’Callaghan) was on 10 September 2024. MR was represented by the solicitor who had represented him in the F-tT. The Secretary of State was represented by a Senior Home Office Presenting Officer. The UT made an anonymity order.[44]The issue was whether the ‘direction… denying the Secretary of State the opportunity to cross-examine two witnesses was lawful’. In order to decide that issue, the UT had to consider ‘the general principles as to cross-examination as to credit of parties or witnesses in the Immigration and Asylum Chamber’ (‘the IAC’) (paragraph 1).[45]In paragraphs 6-14 the UT summarised the facts by reference to MR’s immigration history, determination 1 and the Decision. The UT summarised determination 2, with extensive quotations, in paragraphs 15-26; but the UT started by summarising the procedure before the hearing in the F-tT, in order to set out ‘the Secretary of State’s position adopted before’ the F-tT hearing. In paragraph 18, the UT quoted paragraphs 5)-8) of the Secretary of State’s review (see paragraphs 22-24, above).[46]The UT described the ground of appeal. In paragraph 28 it recorded that the ground had two aspects. The Senior Home Office Presenting Officer withdrew the second aspect at the start of the hearing, so the UT only considered the first. The argument was that the F-tT acted in a way which was procedurally unfair by deciding that the Secretary of State had not challenged MR on the ‘principal controversial issue’ with the result that it was not necessary for further witnesses to be called, denying the HOPO the opportunity to cross-examine MR’s witnesses in order to challenge MR’s claim. The upshot was that Judge 2 had allowed MR’s appeal without considering all the evidence, when Judge 2 had himself described his concerns about unexplained discrepancies in MR’s evidence.[47]The Secretary of State had filed the HOPO’s minute of the F-tT hearing. The UT quoted it extensively in paragraph 32. The HOPO’s minute of her closing submissions is somewhat fuller than paragraph 13 of determination 2 (see paragraph 33, above). Paragraph 13 nevertheless captured the essential points. MR’s solicitor did not object (paragraph 33).[48]The UT said that Judge 2 had exercised the power conferred by rule 14 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 when he directed that MR was not required to call further witnesses. Two witnesses, one of whom was AK, were not called.[49]Judge 2 had made the direction because he considered that the Secretary of State had not challenged MR’s account that he was homosexual and in a relationship with AK. It was not clear ‘what, precisely, he expected to be put to Mr K’. In context the reference to ‘Mr K’ must have been intended to be a reference to ‘MR’. On a fair reading of paragraph 7 of determination 2, Judge 2 ‘required the Presenting Officer expressly to put to [MR] that he is not homosexual and that he is not in a relationship with’ AK. Judge 3 observed that ‘This form of cross-examination is common in criminal trials’. He added that the IAC knew 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 persons whose cultural and community background experiences may hinder open discussion’ (paragraph 36).[50]Judge 2 had not considered whether or not MR had 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’. MR’s witness statement of October 2023 addressed issues raised in the Decision (paragraph 37). The UT considered it was obliged to take into account 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 ground of appeal (paragraph 38).[51]In an asylum appeal, the appellant bears the burden of proving his claim. The system is adversarial, and in asylum appeals, the parties frame the issues for a judge to decide. Judge 3 referred to the relatively recent decision of the UT in Lata (FtT: Principal Controversial Issues) [2023] UKUT (IAC) 00163; [2023] Imm AR 1416 (Lata). The RR ‘clearly identified’ MR’s sexuality and his relationship with [AK] as an issue to be considered’ by the F-tT (paragraph 39).[52]The Judge’s role is normally to decide the issues on the evidence put forward by the parties (paragraph 40). The Judge also has to ‘ensure that the proceedings are fair’ (paragraph 41). A witness who gives evidence is liable to be cross-examined. In general, a party must cross-examine a witness if he wishes to submit that that evidence should not be accepted, giving the witness an opportunity to explain ‘any contradiction or alleged problem with their evidence’. The rule has a long history. It was often referred to as the rule in Browne v Dunn (1893) 6 R 67 (per Lord Herschell, at 70-71) (paragraph 42). In paragraph 43 the UT quoted paragraph 53 of the judgment of Lord Neuberger in the decision of the Judicial Committee of the Privy Council in Chen v Ng [2017] UKPC 27; [2018] 1 P&CR DG2 (‘Chen’). The purpose of the rule is not to benefit 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’. Judge 3 also referred to paragraph 70(v) of Griffiths v TUI (UK) Limited [2025] UKSC 48; [2025] AC 374 (‘TUI’) (paragraph 44).[53]A consequence of applying the rule was that if a party decides not to cross-examine a witness on an important point, he may have trouble submitting that the evidence of that witness should not be accepted, because the witness did not know that that evidence was challenged (paragraph 45). The rule is flexible (paragraph 46). In paragraph 48, Judge 3 said that Lord Herschell had accepted in Browne v Dunn that there ‘was no obligation to raise such a matter in cross-examination if 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’. That point had been acknowledged paragraph 53 of Chen (paragraph 48).[54]Judge 3 summarised the Secretary of State’s case in paragraphs 49 and 50. MR knew from the Decision and from the RR that she did not accept his account that he was a homosexual in a relationship with AK. She was not ‘obliged to cross-examine as to credit’. She accepted that she had to cross-examine AK, as the Decision was not addressed to him. Denying her the opportunity to cross-examine AK led to procedural unfairness (paragraph 49). In paragraph 50 the UT summarised the Secretary of State’s submissions that the rule of professional practice did not apply on the facts. The starting point (per Devaseelan) was a judicial finding that MR was not homosexual; the Secretary of State relied on that finding in the Decision and in the Respondent’s Review; MR therefore knew what the Secretary of State’s position was; and MR had addressed the Secretary of State’s position in his witness statement. She was required to address the evidence of AK, because he had not given evidence to Judge 1, and his witness statement had been served on the morning of the hearing, so that the Secretary of State had had no time to alert him of her concerns about his credibility.[55]Judge 3 summarised MR’s case in paragraphs 52. MR’s solicitor submitted that Judge 2 had concluded that the HOPO had not challenged MR’s evidence that he was homosexual and in a relationship with AK and that entitled him to make a lawful direction that AK should not be cross-examined.[56]Judge 3 explained his conclusion in paragraphs 53-55. He acknowledged that a judge has power to limit cross-examination. ‘Undue restriction on a party’s ability to cross-examine may lead to a decision being set aside’. Such a decision may, on the facts, be wrong in principle and unfair to the other party. He referred to paragraph 59 of Hayes v Transco Plc [2003] EWCA Civ 1261; (2003) 147 SJLB 1089, per Christopher Clarke LJ.[57]Judge 2 had failed to consider whether MR ‘was clearly on notice that his assertions…were not accepted’. The Secretary of State’s submissions, after the direction, were that ‘by the end of his examination-in-chief, and considering his witness statement and supporting letters, [MR’s] evidence was lacking in detail…even after having been placed on clear notice that he was not believed’. Judge 3 observed that the parties had not asked him to decide whether clear notice had been given. That was a mixed question of fact and law. He considered that it was ‘sufficient at the error of law stage that the question as to clear notice was not considered when the discretion was exercised to deny the Secretary of State the opportunity to cross-examine’ AK. On the facts Judge 2 had been ‘wrong in principle…to conclude that he was required to find [MR] credible as to core elements of his case and so deny’ the Secretary of State the opportunity to cross-examine MR’s two witnesses. It was not open to Judge 2 ‘reasonably and lawfully’ to have done that, as the upshot was that Judge 2 ‘did not lawfully consider the evidence before him in the round. His reasoning is fatally infected by the procedurally unfair approach adopted’ (paragraph 54). The only proper course was to set aside determination 2 (paragraph 55).

The ground of appeal

[58]There is one ground of appeal. The UT was said to have failed to consider a material factor. That was that the F-tT had not just allowed the appeal because the Secretary of State did not ‘squarely challenge [MR] in cross-examination’ about whether he was gay. Paragraph 19 of determination 2 had gone ‘much further by noting “the questions asked by the [HOPO] gave tacit acceptance of the claim to be in a relationship with and living with another man”. This finding was not disputed by the Secretary of State in her subsequent appeal to [the UT]. Consequently [Judge 3] irrationally concluded that [the F-tT] had engaged in procedural unfairness’.

The grant of permission to appeal

[59]Nugee LJ said that there was a real prospect of success for the reasons given in MR’s skeleton argument. Judge 2 had considered that there had been no effective challenge to MR’s claim and ‘indeed tacit acceptance’ of his claim to be in a relationship with a man. ‘This was the assessment of the trial judge’ who had heard MR being cross-examined and had ‘gone out of his way to make clear that [the Secretary of State] had not done enough to dispute’ MR’s case. It was ‘distinctly arguable in the circumstances’ that Judge 2 ‘was entitled to take the view that it was not open to’ the Secretary of State ‘to submit that [MR’s] case on these central points should be rejected, and hence to dispense with the other witnesses’.

The submissions

[60]I understood that Mr Gajjar accepted that, while the F-tT had to consider whether or not MR had shown, to the lower standard, that he would be at risk on return to Pakistan, he had to establish the facts underlying this claim, in other words, that he was homosexual, and in a relationship with AK, on the balance of probabilities. Mr Gajjar was right to accept that. He very fairly took us through the relevant documents. He stressed that Judge 2 had given the HOPO ‘multiple’ chances to cross-examine MR (three are recorded in determination 2). He accepted that Judge 2 had recorded two examples of inconsistencies in MR’s evidence which had been exposed by the cross-examination of MR.[61]Mr Gajjar was reluctant to speculate about what Judge 2 meant by the phrase ‘tacit acceptance’. It might simply mean that the HOPO had not challenged the evidence. Later in his submissions he suggested that what Judge 2 had relied on was a combination of the questions which were, and were not, asked. He rightly acknowledged that in her appeal to the UT, the Secretary of State was not challenging a finding of fact by the F-tT, but was relying on procedural unfairness.[62]He submitted that Judge 2 had ‘followed the requirements of TUI’. He submitted that Ullah v Secretary of State for the Home Department [2024] EWCA Civ201; [2024] 1 WLR 4055 was a similar case in the public law context. It showed that the Secretary of State was obliged to cross-examine in a case like this. This case did not fall into any of the exceptions in paragraphs 61-68 of TUI. He suggested that the Secretary of State’s case must be that Judge 2 should have descended into the arena and asked the questions himself.[63]Ms Elliot submitted that this appeal was not about TUI as Judge 3 had been careful not to hold that MR had, or had not, had sufficient notice of the issues. The question, rather, was whether Judge 2 had erred in principle in the exercise of his discretion. AK’s statement had been submitted very late. The Secretary of State had had no chance to interrogate it and the F-tT had deprived itself of the opportunity to assess AK’s credibility. The Secretary of State had maintained her position on the principal controversial issue and had not conceded it. The authorities showed that there is a clear difference between a failure to challenge a point, and conceding it. If the principal controversial issue was whether MR was gay, it was in issue unless and until it was conceded.[64]Ms Elliot submitted that this case was not like Ullah because the Secretary of State did not have to show in this case (contrast Ullah), that MR was dishonest. In that case, the Secretary of State had decided that the appellant had made a dishonest statement when he applied for naturalisation. The appellant put forward a potentially innocent explanation of the statement. The Secretary of State had six opportunities to challenge that explanation and had taken none of them. The appellant’s evidence about that explanation therefore stood. In this case, the F-tT’s suggested challenge would not have elicited any useful evidence: MR would have repeated his claim. Moreover, it was not necessary for the Secretary of State to show that MR was lying: just that he had not proved his assertions on the balance of probabilities.[65]Ms Elliot further submitted that the F-tT had behaved as though the Secretary of State had conceded these two points when she had not done so. It had thus failed to do its job, which was to assess the relevant evidence in the round. The issue for the F-tT was not whether MR was lying but whether, considered in the round, his new evidence was sufficient to displace determination 1. Ms Elliot was asked whether her submission was that MR’s evidence was inherently incredible. Her response was that she did not have to make that submission and she did not do so. She did not rely on any of exceptions in TUI. A witness has to have fair notice of the other side’s challenges to his evidence, but cross-examination is not the only way of achieving that. The UT’s point was that the F-tT had erred in law by not considering, before making its direction, whether MR had had fair notice of the Secretary of State’s case before he was cross-examined.[66]Ms Elliot also made submissions in support of the Secretary of State’s Respondent’s Notice (‘RN’). The RN argued, in brief, that the F-tT erred in not taking an inquisitorial approach to MR’s appeal which would have required it in this case to put to MR the issues about his credibility which it described in what I have called the coda to determination 2, by depriving itself of the opportunity hear from MR’s other witnesses. It was also wrong to consider that it was bound to accept MR’s evidence even if it was not challenged by the Secretary of State, as the Secretary of State had not conceded it. It was a Robinson obvious point which the UT was entitled to take of its own motion. She referred to the statement of Lord Carnwath in paragraph 31 of MN (Somalia) Secretary of State for the Home Department [2014] UKSC 30; [2014] 1 WLR 2064 that in a Refugee Convention case, the duty of anxious scrutiny goes both ways.

Discussion

[67]The simple issue is whether it was lawful for Judge 2, by making a direction under rule 14, in effect to treat the Secretary of State’s failure to cross-examine MR on the basis that he was not gay and/or not in relationship with AK (and/or her supposed ‘tacit’ acceptance of the relationship with AK) as a conclusive reason for allowing MR’s appeal.[68]The UT relied on the reasoning of the Supreme Court in TUI. Both counsel also referred us to passages in the judgment of Lord Hodge DPSC. I therefore start with a summary of what TUI does and does not decide.[69]The bare facts in TUI were the claimant claimed damages for a serious bout of food poisoning which he suffered in Turkey on a package holiday organised by TUI. He relied on the report of an expert on causation in support of his claim for damages. The defendant did not rely on any expert evidence at all. The defendant had asked written questions of that expert before the trial and he had answered them. On the day before the trial counsel for the defendant served a skeleton argument which criticised aspects of that expert’s report. That expert had not been asked to, and did not, attend the trial for cross-examination. The evidence of that expert was the only evidence on the issue of causation. The trial judge accepted criticisms of the report made by the defendant’s counsel in his closing submissions and held that the claimant had not proved his claim on the balance of probabilities.[70]The essential question for the Supreme Court in TUI was whether this court had erred in holding that it was fair for the defendant to challenge the uncontradicted report of an expert for the first time in closing submissions when the expert had not been cross-examined on the contents of the report (see paragraph 29 of the judgment Lord Hodge DPSC describing the first ground of appeal to this court in that case). See also paragraph 33, which summarised Bean LJ’s dissent in this court, concluding with the sentence ‘The courts should not allow litigation by ambush’.[71]The issues, as framed by Lord Hodge in paragraph 34, concerned ‘the scope of the rule, based on fairness, that a party should challenge by cross-examination evidence that it wishes to impugn in its submissions at the end of the trial’, whether the rule extended to attacks in submissions on the reliability of a witness’s recollection or on the reasoning of an expert witness, and if it did, whether the conduct of the trial judge had been unfair.[72]It is trite, he said, that ‘English law operates an adversarial system’ and that it was for the parties to frame the issues for the judge to decide in their pleadings and in the conduct of the trial. It was also trite that it was an important part of the judge’s role to make sure that the proceedings are fair. ‘At the heart of this appeal lies the question of the requirements of a fair trial’ (paragraph 36).[73]The judge has to ensure that the trial is fair. In general, a party must challenge in cross-examination the evidence of any witness if he wishes to submit that the evidence should not be accepted on that point. That gives the witness a chance to explain ‘any contradiction or alleged problem with his evidence. If a party has decided not to cross-examine on a particular important point, he will be in difficulty in submitting that the evidence should be rejected’ (paragraphs 42 and 43). What matters is ‘the fairness of the legal proceedings as a whole’ (paragraph 43). The ‘prevention of surprise’ is also an important factor (paragraph 44).[74]In paragraph 45 Lord Hodge cited a passage from Browne v Dunn ‘If you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses’. Judge 3 referred to the same passage in determination 3 (see paragraph 53, above). In paragraph 46 Lord Hodge added, significantly for the purposes of this case, ‘Lord Herschell went on to say that there was no need to waste time by cross-examining a witness where it is perfectly clear he had prior notice that the opposing party intended to impeach the credibility of the story he was telling. He continued, “All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted”’. Lord Hodge was summarising, and quoting, the passage from the judgment of Lord Herschell which was summarised and quoted by Judge 3 in paragraph 48 of determination 3 (see paragraph 53, above).[75]In paragraph 57 Lord Hodge quoted from a statement of the ‘general rule’ in the paragraph 53 of the judgment of the Judicial Committee of the Privy Council in Chen. ‘In other words, where it is not made clear during (or before) a trial that evidence, or a significant aspect of the evidence, of a witness (especially if he is a party to the proceedings) is challenged as inaccurate, it is not appropriate, at least in the absence of further facts, for the evidence to be challenged in closing speeches or in the subsequent judgment’.[76]In paragraph 61 Lord Hodge said that the cases show that there is a long-established rule with which barristers would be familiar. There were also circumstances in which ‘the rule may not apply’. He gave a non-exhaustive list in paragraphs 61-68. I say ‘non-exhaustive’ because he introduced the examples which he gave by saying, ‘There are also circumstances in which the rule may not apply. Several come to mind’. I use the word ‘examples’ because that is the word he used in paragraph 70(viii):
‘There are also circumstances in which the rule may not apply: see paras 61-78 above for examples of such circumstances’
. He summarised the effect of the cases he had considered in seven propositions in paragraph 70. In paragraph 70(vii) he said that the rule ‘should not be applied rigidly. It is not an inflexible rule and there is bound to be some relaxation of the rule…Its application depends on the circumstances of the case as the criterion in the overall fairness of the trial’.[77]The Supreme Court decided that what the trial judge had done in TUI was unfair. The defendant had had an opportunity to cross-examine the claimant’s expert in order to put to him the defendant’s criticisms of his report. The defendant had not taken that opportunity but had attacked the report in his closing submissions. No notice had been given of criticisms until the night before trial. The expert therefore had no opportunity to address those criticisms because(a) he was not present for cross-examination and(b) neither the claimant nor he had any advance notice of the criticisms.[78]It is necessary to identify, first, the nature of the ‘rule’ which was at issue in TUI. The rule is not a rule that (subject to exceptions) a party to litigation may not make submissions impugning the credibility or reliability of the evidence of a witness unless the witness has been cross-examined about those points. The rule as explained in the cases summarised by Lord Hodge is narrower than that. It is based on fairness, and on the principle, referred to by Bean LJ in his dissent, that litigation should not be conducted by ambush. The rule does not apply if the witness already knows, because the questions have been articulated earlier in the litigation, that his evidence is disputed, and, he is not, therefore, taken by surprise. The rule, rather, is that if he does not know in advance about the disputed matters, and has not been cross-examined about them, submissions cannot be made impugning his credibility (unless an exception to the rule applies). This case is quite different from TUI. MR has known since the date of the Decision that the Secretary of State’s position, which was maintained in the RR, was that the Secretary of State relied on determination 1; and that the Secretary of State’s case was that MR’s new evidence did not displace findings in determination 1. MR had the opportunity to deal, and did deal, with that position in his witness statement. I therefore consider that Ms Elliot’s refusal to accede to the invitation to rely on one of the express exceptions to the ‘rule’ was not only principled, but correct.[79]The Secretary of State was not required to, and did not, put her case any higher than that the new evidence adduced by MR was not sufficient to displace the relevant findings in determination 1. Her case did not require her to cast doubt on the accuracy or veracity of MR’s new evidence. It did not therefore require the HOPO to put to MR that he was not homosexual or that he was not in a durable relationship with AK, still less that he was lying. The HOPO did not need to go that far. The submissions recorded at paragraph 13 of determination 1 are an orthodox application of Devaseelan. They were not an invitation to Judge 2 to decide the case in a way which was unfair. They did not impugn MR’s honesty, still less can they have been a ‘surprise’ him. The submissions were simply that the new evidence, which in short, was little more than assertions backed with no detail or supporting documents, was not enough to displace determination 1.[80]I note, in any event, that as Judge 2 recorded in paragraphs 17 and 18 of determination 2, MR had been given an opportunity to comment on two sets of inconsistencies in his evidence, so it might be thought that the HOPO had gone as far as, if not further than, was necessary on the facts of this case. Moreover, it is clear from paragraph 9 of determination 2 (see paragraph 31, above), as the UT recognised, that the ritual of further cross-examination on which Judge 2 insisted in this case would have been an empty formality. The UT is better placed than is this court to assess the necessity for Old Bailey-style cross-examination in a case like this in which the issue is, not whether the appellant is lying, but whether his new evidence is enough to displace an earlier determination of the F-tT. For that reason, I accept Ms Elliot’s reasons for distinguishing Ullah. The issue in that case was precisely whether the appellant had acted dishonestly, and whether when he gave an apparently innocent explanation, that should have been accepted or not. The Secretary of State’s failure to challenge that explanation on six different occasions meant that his explanation stood.[81]I should deal with Mr Gajjar’s separate point that based on the F-tT’s comment in paragraph 19 that ‘In fact the questions asked gave tacit acceptance to of the claim to be in a relationship with and living with another man’.[82]After the end of oral argument, this court drew the parties’ attention to the decision of this court in Shyti v Secretary of State for the Home Department [2023] EWCA Civ 770, paragraphs 79-87. In that case, in short, this court decided that even if the HOPO does not give the F-tT all the help which the F-tT might expect, the F-tT is obliged to consider the points made in the Secretary of State’s decision letter, unless the HOPO expressly concedes them. Mr Gajjar attempted to distinguish this case from Shyti on the grounds that the F-tT here had given the HOPO a different type of ‘notice’. The ‘notice’ in Shyti was to enable the HOPO fully to argue the case, whereas the ‘notice’ here was to enable the F-tT to do its duty by ensuring a fair hearing. He also relied on JK (DRC) v Secretary of State for the Home Department [2007] EWCA Civ 831, which this court distinguished in Shyti. He argued that ‘tacit acceptance’ is not the same as an express concession and that Shyti only deals with the former. The F-tT is best placed to decide whether or not the conduct of the HOPO amounts to ‘tacit acceptance’.[83]As I understood his submissions, Mr Gajjar did not argue that the HOPO had expressly conceded either that MR was gay or that he was in a durable relationship with AK. He had difficulty, at times, in explaining what the F-tT had meant by the expression ‘tacit acceptance’. An express concession was, however, necessary to relieve the F-tT of its duty to consider, on the evidence as a whole, the points in the Decision and the RR. Nothing less than an express concession would do. I consider that the word ‘tacit’ is deliberate, because Judge 2 knew that there had been no express concession. He was, it seems to me, ‘tacitly’ acknowledging that the HOPO had not expressly conceded that she was no longer relying on the Decision or on the RR. If the HOPO does not expressly withdraw the decision in question, the F-tT is obliged to consider the appeal in the round, by reference to the points taken in the decision, even if it has not had the help from the HOPO which it might expect. If that is the position there is no express withdrawal of a decision, a supposed ‘tacit acceptance’ of a point in cross-examination cannot put an appellant in a stronger position. On the contrary, he is obviously in a weaker position than if there has been an express concession.[84]Finally, I agree with the F-tT when it gave permission to appeal, and with the UT, that the F-tT’s exercise of its discretion was independently flawed by the F-tT’s failure to consider the evidence as a whole, even if it was entitled to prevent the HOPO from cross-examining MR. The F-tT acknowledged several weaknesses in MR’s case, but abdicated its duty to consider those weaknesses against the MR’s and AK’s ‘unchallenged’ but vague evidence, and to assess the picture as a whole. Far from being ‘moot’ the points to which the F-tT took the trouble to describe in what I have called the ‘coda’ to determination 2 were central to its duty to consider, and weigh, the evidence as a whole.

Conclusion

[85]For those reasons, I would dismiss this appeal.

The Respondent’s Notice

[86]The Secretary of State served a Respondent’s Notice (‘RN’), on which we heard argument. My conclusion on the appeal means that I do not need to decide anything about the RN. I would make three points, nevertheless. First, I do not accept that the F-tT has an inquisitorial function in the new procedural climate ushered in by Lata and the associated Practice Statements. Broad statements to that effect in older cases such as that in paragraph 25 of MN (Somalia)should not be read across to this new procedural regime. That does not detract from the valid point that the F-tT’s duty of anxious scrutiny in an asylum case applies to the arguments of both sides.[87]Second, it follows that there is even less scope, if any, in this new procedural climate for forensic adventures which would require the F-tT to ‘descend into the arena’ by cross-examining an appellant. The F-tT, must, of course, clarify with the parties any points about their arguments which it does not understand, if necessary by asking a follow-up question of the appellant. But it is not its function to cross-examine the appellant if the Secretary of State advertently chooses not to.[88]Third, this case does not, on any view, involve a ‘Robinson obvious’ point (R (Robinson) v Secretary of State for the Home Department [1998] QB 929). Such a point is a point of refugee law which favours a person who claims to be a refugee. The appellate authorities are obliged to take such a point in an appellant’s favour even if he does not. The point must be ‘obvious’ and arguable with ‘strong prospects of success’:
‘nothing else will do’
. The reason for this principle is that it is necessary to enable the United Kingdom to comply with its obligations under the Refugee Convention.[89]This principle has only very rarely been extended in favour of the Secretary of State. I only know about one case (about the revocation of refugee status: A (Iraq) v Secretary of State for the Home Department [2005] EWCA Civ 1438; [2006] Imm AR 114). Secretary of State for the Home Department v George [2024] EWCA Civ 1192; [2025] 1 WLR 1025 is a recent decision in which this court held that the Secretary of State cannot rely on Robinson in a deportation case. A mistaken or over-generous grant of refugee status is, in principle, different from a failure to invoke the Refugee Convention in a refugee’s favour, or from a revocation case. Such a grant would not lead to a breach of the United Kingdom’s obligations under the Refugee Convention. If, therefore, it supposed that a failure by the F-tT to cross-examine MR would or could have led to a mistaken grant of refugee status, there is no arguable basis for reliance on the Robinson doctrine.[90]I am grateful to Elisabeth Laing LJ for setting out the facts, and I agree with her that the appeal should be dismissed.

The rule in Browne v Dunn

[91]In TUI, the Supreme Court considered at some length the nature and rationale for what is often referred to as “the rule in Browne v Dunn”. The rule is summarised in Phipson on Evidence (20th ed) at 12-12, “In general a party is required to challenge in cross-examination the evidence of any witness of the opposing party if he wishes to submit to the court that the evidence should not be accepted on that point. The rule applies in civil cases … In general the CPR does not alter that position. This rule serves the important function of giving the witness the opportunity of explaining any contradiction or alleged problem with his evidence. If a party has decided not to cross-examine on a particular important point, he will be in difficulty in submitting that the evidence should be rejected.”[92]At paragraph 45 of TUI, Lord Hodge explained the decision in Browne v Dunn (1893) 6 R 67 as follows, “45. … Browne v Dunn involved an action for libel against a solicitor and the assertion of legal professional privilege in relation to a document which the solicitor prepared for signature by his proposed clients, containing complaints about the claimant’s behaviour and instructing the solicitor to act for them in relation to those complaints. What is relevant to this appeal is that counsel asked the jury to disbelieve the evidence of the clients that they had instructed the solicitor to act on their behalf against the claimant without having challenged the veracity of that evidence on cross-examination. Lord Herschell LC (at pp 70-71) stated his understanding of the rule:
“I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.” “I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.”
[93]It thus appears that until the claimant in Browne v Dunn made his closing speech to the jury, he had given no indication that he intended to challenge the truth of the evidence given by the (six) witnesses for the defence that they had instructed the defendant solicitor to act for them. The point had simply not been live and the witnesses had not had the opportunity to respond to the suggestion sought to be made to the jury that they were not telling the truth in that respect.[94]It was the lack of prior notice and an opportunity to deal with the point made to the jury in closing which made the proceedings in Browne v Dunn unfair. This was emphasised by Lord Hodge in TUI at [46], “46. Lord Herschell went on to say that there was no need to waste time by cross-examining a witness where it is perfectly clear that he had prior notice that the opposing party intended to impeach the credibility of the story which he was telling. He continued:
“All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted.””
[95]The same point about a lack of prior notice and the opportunity to deal with a point also appears in the Privy Council’s precis of the rule in Chen v Ng [2017] UKPC 27 at [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.” (my emphasis) (my emphasis)[96]The decision in TUI also made it very clear that the rule in Browne v Dunn is simply one aspect of a judge’s overall task to ensure that a trial is fair and that it is, of necessity, a flexible principle: see e.g. Lord Hodge’s statements to such effect at [42], [43] and [70]. Lord Hodge also made it clear that giving a witness the opportunity to explain or clarify his or her evidence is particularly important when the opposing party is intending to accuse the witness of dishonesty, but that the principle is not confined to such cases: see [70(vi)].

Analysis

[97]The central issue for decision by the F-tT in the instant case was whether, in accordance with Devaseelan, and starting from the earlier judicial finding in 2017 that MR was not a homosexual, MR had proved on the balance of probabilities that he was in fact a homosexual.[98]In that respect, it was clear from the Decision and the Respondent’s Review that the Secretary of State was relying on the earlier judicial finding that MR was not a homosexual, and that she did not accept that his sexuality had changed since that earlier decision.[99]The key point is that MR had the opportunity to address the Secretary of State’s case and had done so in his witness statement for the evidential hearing before the Ft-T. He had also sought to support his case, among other things, by the late introduction of the letter from AK, who attended the hearing to give evidence.[100]That opportunity given to (and taken by) MR to advance his case and deal with the contentions of the Secretary of State clearly distinguishes his position from cases such as Browne v Dunn. Put very simply, it would not have been unfair to MR if the HOPO had been allowed to submit to the Ft-T in closing that in light of the earlier determination from 2017, and taking the evidence as a whole, MR’s evidence should not be accepted and that he had not discharged the burden of showing, on the balance of probabilities, that he was gay.[101]To my mind it also does not matter whether such a submission could be characterised as a contention that MR was lying about his sexuality or not. As TUI makes clear, the principle of fairness that a party should not be able to make a submission to the court or tribunal which the opposing party or a witness has not had the opportunity to deal with, does not depend upon whether the submission alleges dishonesty or not.[102]I also do not consider that, on the very limited evidence that we were shown regarding the questions that the HOPO asked MR in cross-examination, that the Secretary of State changed her stance at the hearing and conceded that MR was gay. In cross-examination, the HOPO seems to have asked MR open-ended questions designed to test his case, such as when he realised he was gay, whether he told AK that he was gay, and whether he went to gay clubs. Such questions did not amount to an express concession or acceptance of MR’s case. That is evident from the Ft-T’s comment in his decision that the questions only “gave tacit acceptance of [MR’s] claim to be in a relationship with and living with another man” (my emphasis).[103]But I do not think that such questions even implicitly conceded MR’s case that he was gay. Indeed, the very fact that the Ft-T Judge repeatedly warned the HOPO that if she did not put the Secretary of State’s case that he was not gay explicitly to MR, the Judge would be likely to allow the appeal, suggests to me that the Judge did not think the central point of the case had actually been conceded. If the Judge had thought that it had been, his whole exercise of warning the HOPO about the likely consequences of not putting the point expressly in cross-examination, and giving her the opportunity to take instructions, would have been entirely unnecessary.[104]Accordingly, in my judgment it was wrong for the Ft-T Judge to consider that if the Secretary of State wished to contend in closing that MR had not discharged the burden of showing that he was a homosexual, the HOPO was obliged, in fairness to MR, to put that contention to him expressly in cross-examination. It must follow that it was unfair to the Secretary of State for the Ft-T Judge to go on to indicate, as recorded in paragraph 9 of his decision, that he was going to “take note” of the evidence of the witnesses who were to be called (which I take to have included AK, who was present), but to decide that they did not need to be called and thereby to deny the Secretary of State the opportunity to cross-examine such witnesses to test their evidence.[105]I therefore agree that the UT was right, and the appeal should be dismissed.

Descending into the arena

[106]For completeness, I would also entirely agree with Elisabeth Laing LJ that whilst the F-tT, must, of course, clarify with a witness any points about their evidence that it does not understand, and I of course accept that the Ft-T has a duty anxiously and carefully to scrutinise the cases made by both sides to an immigration case, the Ft-T should not generally abandon its judicial role and descend into the evidential fray. Specifically, it is no part of the Ft-T’s function, as an independent and impartial tribunal, to take it upon itself to cross-examine a witness if the opposing party advertently chooses not to.[107]Similar issues, and the perils for a fact-finding tribunal of descending into the evidential arena in this way, were explored in the context of ordinary civil proceedings in Rea v Rea [2022] EWCA Civ 195, especially at [62]-[83].[108]I agree that the appeal should be dismissed for the reasons set out in the judgments of Lady Justice Elisabeth Laing and Lord Justice Snowden.

Cited in 1 later judgment