“…. The Judge found that there was no requirement for dishonesty in respect of a refusal under S-LTR.1.7 …. The Judge concluded that, once the Respondent had provided a Memorandum of Conviction and a copy of the completed application form, including the tick box relating to convictions, the burden rested on the Appellant to demonstrate that he had a ‘reasonable excuse’. It is arguable that the burden of showing an absence of any reasonable excuse still rests on the Respondent.”
“The applicant will normally be refused on grounds of suitability if any of paragraphs S-LTR.2.2 to 2.4 apply.” [Emphasis added.]
“It is mandatory to complete section 10 …. This section asks about any criminal convictions …. If you fail to answer all of these questions as fully and accurately as possible, your application may be refused.”
“Have you or any dependants who are applying with you been convicted of any criminal offence in the UK or any other country?”
“On02 January 2013 you were convicted of two counts of fraud at North Staffordshire Magistrates’ Court. On section 10.1 of the application form you stated that you had no convictions. Your application falls for refusal by virtue of paragraph S-LTR.1.7 of Appendix FM ….. [and] is refused under D-LTRP1.3.”
“In the present case, it is not for the Respondent to prove that anything was done dishonestly or with an intention to deceive. Insofar as there is any burden upon the Respondent, I find that it has been sufficiently discharged …. [by producing] …. a copy of the completed FLR(M) application form ….. and, secondly, a copy of the Appellant’s Memorandum of Conviction ….”
“…. The Appellant in this appeal must be understood to be contending that he has a reasonable excuse for his undisputed failure to comply with the requirement to provide information. Such being his case, I apprehend that the burden rests upon him to establish the necessary facts upon the balance of probabilities.”
“… It is my conclusion that the Appellant has failed to discharge the burden of showing on the balance of probabilities that he has a reasonable excuse.”
“…. If the examination shows that persecution might indeed take place then the fear is well founded.”
“3. Those who make a claim for asylum must show that they are refugees. The burden of proof is on them. Whether or not a claimant is to be believed is frequently very important. He will assert very many facts in relation to events far away most of which no one before the adjudicator is in a position to corroborate or refute. Material is often adduced at the last minute without warning. From time to time the claimant or the Home Secretary are neither there nor represented and yet the adjudicator carries on with his task. He frequently has several cases listed in front of him on the same day. For one reason or another not every hearing will be effective. Adjudicators cannot be expected to be alive to every possible nuance of a case before the oral hearing, if there is one, starts. Adjudicators in general will reserve their determinations for later delivery. They will ponder what has been said and what has not been said, both before the hearing and at the hearing. They will look carefully at the documents which have been produced. Points will sometimes assume a greater importance than they appeared to have before the hearing began or in its earlier stages. Adjudicators will in general rightly be cautious about intervening lest it be said that they have leaped into the forensic arena and lest an appearance of bias is given. 4. Undoubtedly a failure to put to a party to litigation a point which is decided against him can be grossly unfair and lead to injustice. He must have a proper opportunity to deal with the point. Adjudicators must bear this in mind. Where a point is expressly conceded by one party it will usually be unfair to decide the case against the other party on the basis that the concession was wrongly made, unless the tribunal indicates that it is minded to take that course. Cases can occur when fairness will require the reopening of an appeal because some point of significance – perhaps arising out of a post - hearing decision of the higher courts – requires it. However, such cases will be rare. 5. Where much depends on the credibility of a party and when that party makes several inconsistent statements which are before the decision maker, that party manifestly has a forensic problem. Some will choose to confront the inconsistencies straight on and make evidential or forensic submissions on them. Others will hope that ‘least said, soonest mended’ and consider that forensic concentration on the point will only make matters worse and that it would be better to try and switch the tribunal’s attention to some other aspect of the case. Undoubtedly it is open to the tribunal expressly to put a particular inconsistency to a witness because it considers that the witness may not be alerted to the point or because it fears that it may have perceived something as inconsistent with an earlier answer which in truth is not inconsistent. Fairness may in some circumstances require this to be done but this will not be the usual case. Usually the tribunal, particularly if the party is represented, will remain silent and see how the case unfolds.”
“Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests, fairness will very often require that he is informed of the gist of the case which he has to answer.”
“…. This case falls to be decided in accordance with the overriding requirement that the reclaimer should have been given a fair hearing. That requirement, of course, is not confined to the actual conduct of the hearing itself before the Adjudicator but applies also to the process whereby the Adjudicator reaches his decision.” [My emphasis.] Lord Clarke then highlighted the absence of any cross examination or judicial questioning: “… whereby any such inconsistencies, contradictions or discrepancies might well have been highlighted.”
“…. If ….. any perceived contradiction or inconsistency in the reclaimer’s position was going to form a significant reason for rejecting his appeal then, in the particular circumstances of this case, it appears to use that fairness required that, prior to the issue of her decision, she gave the reclaimer or his representative an opportunity to comment upon, or seek to explain, it.”
“…. If the Adjudicator himself considers that he has identified certain inconsistencies in the applicant’s evidence which could have a very significant effect on the decision, he should provide the applicant with an opportunity to explain these.”
“….. We accept entirely …… that an adjudicator has no obligation to search for material of that kind [a Turkish asylum seeker’s report requested by the appellant’s expert witness] which is not placed before him even when it is referred to. It is for the applicant and those representing him to ensure that any material which they wish the Tribunal to have regard to is placed before the Tribunal.”
“Secondly, there is no presumption that the procedure will necessarily follow the adversarial model which (for the time being at least) is the hallmark of civil court procedures. In a specialist tribunal, particularly where parties are not represented, there is more scope, and often more need, for the judges to adopt an inquisitorial approach.” [Our emphasis.] This may be allied with the long standing recognition that proceedings before tribunals do not operate within what is perceived to be the rather stricter and more rigid framework of proceedings before conventional courts. We consider that the decision in Maheshwaran must be considered in the light of the above. What Lord Carnwath added is no throwaway line: “However, there is no single approach suitable for all tribunals. For example, in a major case in the tax or lands tribunals, the sum may be great and the issues as complex, as in any case in the High Court and the procedure will be modelled accordingly.”
“These special qualities, including emphasis on the development of ‘innovative methods of resolving disputes that are of a type that may be brought before Tribunals’, are given statutory force in the duties of the Senior President under section 2 of the 2007Act. They are also embodied in the overriding objective in the Rules …..”
“Subject to the provisions of the 2007 Act and any other enactment, the Tribunal may regulate its own procedure.”
“….. Once it is recognised that a dispute has arisen [between the State and the individual] then, in the common law tradition, a relatively adversarial procedure is implied. This is consistent with the integration of tribunals into the judicial system as ordained by the 2007 Act. A tribunal should have both sides of the case presented to it and should judge between them, without itself having to conduct an enquiry of its own motion, enter into the controversy and call evidence for or against either party”
“Naturally this does not mean that the Tribunal should not tactfully assist an applicant to develop his case, particularly when he has no representative to speak for him, just as a Judge will do with an unrepresented litigant. And this may require a more inquisitorial role.”
“…. The 2007 Act reforms also imply a less passive Tribunal to ensure that all cases are dealt with justly and fairly; and a shift towards a less adversarial procedure may be anticipated.”
“The peculiar duty of him who has the risk of any given proposition on which parties are at issue – who will lose the case if he does not make this proposition out, when all has been said and done”