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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> XS (Kosovo, Adjudicator’s conduct, psychiatric report) Serbia and Montenegro [2005] UKIAT 00093 (26 April 2005) URL: http://www.bailii.org/uk/cases/UKIAT/2005/00093.html Cite as: [2005] UKIAT 93, [2005] UKIAT 00093, [2005] UKAIT 00093 |
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XS (Kosovo- Adjudicator's conduct – psychiatric report) Serbia and Montenegro [2005] UKIAT 00093
Date of hearing: 10 January 2005
Date Determination notified: 26 April 2005
XS | APPELLANT |
and | |
Secretary of State for the Home Department | RESPONDENT |
"I am sorry to say, having seen and heard the appellant give evidence today, tested very thoroughly if I may say in cross-examination by Mr Flegg that the reasonable degree of likelihood or serious possibility standard of proof is nowhere near met."
The Adjudicator explained why he came to that conclusion in the succeeding paragraphs.
"I do not accept for one moment that the appellant could cross so many international frontiers without a single search being made …. I accept that one could travel quite easily concealed in a lorry between Austria and Germany, but I do not accept it would be so easy to cross the other international frontiers, not least in a part of the world as tense as the Balkans have been in recent years."
"I should say for the avoidance of doubt, having referred to Mr Flegg's cross-examination, that Mr Walsh, with a degree of impertinence with respect, suggested that I too had conducted a cross-examination. It is right that I put additional questions to the appellant, but it is trite law in this jurisdiction that an Adjudicator is entitled to put questions of his or her own to a witness, including an appellant. It is almost by definition additional questions will refer to matters not raised in cross examination. There is no rule of law restricting an Adjudicator to questions that have already been put, on behalf of the Secretary of State and I did not uphold an objection by Mr Walsh to additional questions, for example on the appellant's method of getting to this country.
When the appellant was first asked by me how the lorry got from Tetovo to Germany, he was unwise enough (with respect) to give what he no doubt thought was a clever answer, to the effect that it got to Germany because it had an engine. Unsurprisingly in those circumstances there was an element of asperity in my follow-up question, because I had not supposed for one moment that the lorry which allegedly took the appellant all the way from Tetovo to Germany by a route which cannot be identified, across frontier crossing points which cannot be named, was towed all the way. For the avoidance of doubt I do not accept that the appellant was concealed in a lorry, as I have already explained, indeed I reject the entirety of his case, save for his name."
"37. The last sentence of guideline seven can be misleading. It is designed to prevent cross examination or the appearance of cross examination, rather than to prevent a question being asked if it was a question which the Home Office Presenting Officer could have put if he had been present. The risk of cross-examining or appearing to cross-examine can be avoided by an Adjudicator in the manner, style or length of questions, which he asks. Generally, questions other than those designed to clarify what was said or intended to be said are better left until after the conclusion of evidence where no Home Office Presenting Officer is present and after re-examination where a Home Office Presenting Officer is present but see K (Côte D'Ivoire) [2004] UKIAT 00061.
38. Questions should not be asked in a hostile tone. They should not be leading questions which suggest the answer which is desired, nor should they disguise what is the point of concern so as to appear like to a trap or a closing of the net. They should be open ended questions, neutrally phrased. They can be persisted in, in order to obtain an answer; but they should not be persisted in for longer than is necessary for the Adjudicator to be clear that the question was understood, or to establish why it was not being answered, or to pursue so far as necessary the detail underlying vague answers. This will be a matter for the judgment of Adjudicators and it should not usually take more than a few questions for an Adjudicator to establish the position to his own satisfaction. An advocate should always be given the chance to ask questions arising out of what the Adjudicator has asked, which will enable him to follow up, if he wishes, the answers given thus far. The Adjudicator can properly put, without it becoming a cross-examination, questions which trouble him or inferences from answers given which he might wish to draw adversely to a party. These questions should not be disproportionate in length to the evidence given or to the complexity of the case, and, we repeat, an Adjudicator should be careful to avoid developing his own theory of the case."
Conclusions
MR JUSTICE OUSELEY
PRESIDENT