Kesse v Secretary Of State For Home Department [2001] EWCA Civ 177 (8 February 2001)


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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Kesse v Secretary Of State For Home Department [2001] EWCA Civ 177 (8 February 2001)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/177.html
Cite as: [2001] Imm AR 366, [2001] EWCA Civ 177

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JISCBAILII_CASE_IMMIGRATION

Neutral Citation Number: [2001] EWCA Civ 177
Case No: C/2000/2955

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM IMMIGRATION APPEAL TRIBUNAL


Royal Courts of Justice
Strand, London, WC2A 2LL
Wednesday 8th February 2001

B e f o r e :

LORD JUSTICE SCHIEMANN
LORD JUSTICE LATHAM
and
SIR CHRISTOPHER SLADE
____________________

David Kojo KESSE
 Appellant
- and -
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
 Respondent

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

K.T. HAMMOND (instructed by Corbin & Hassan) for the Appellant
Khawar M. QURESHI (instructed by Mark Benney) for the Treasury Solicitors
____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    LORD JUSTICE SCHIEMANN :

  1. This is the judgment of the Court.

    2. Introduction

  2. Before the court is an appeal by Mr Kesse from the Immigration Appeal Tribunal. The appeal raises a point of some general importance in relation to the power of the Tribunal to call a witness of its own volition when the parties have declined to do so. Before coming to that point it is useful to set out the factual background.

  3. The Tribunal dismissed an appeal by Mr Kesse from a decision of the Secretary of State for the Home Department ("SSHD") to make a deportation order against him. That decision was made pursuant to Section 3(5)(b) of the Immigration Act 1971 which provided that a person who is not a British citizen shall be liable to deportation if the SSHD deems his deportation to be conducive to the public good. It is common ground that this provision empowers the SSHD to make a deportation order in relation to a person where he is satisfied that a person has obtained leave to remain in the United Kingdom by deception. It is common ground that in such a case the burden is on the SSHD to prove to a high standard that leave to enter was so obtained. The jurisdiction of the Tribunal in such cases is an original one : it sits at first instance rather than in an appellate capacity : s.15(1)(a).

  4. In a nutshell the position was this. Mr Kesse obtained his leave on the basis that he was the spouse of Julieth Veronica Morgan, a British citizen. The Tribunal heard the evidence of a lady who called herself Julieth Veronica Morgan and to whom we shall hereafter refer as the witness Morgan. The appellant accepted that he had never met the witness Morgan still less married her. The appellant accepted that, in order to obtain his leave, he had produced a number of documents. These were:

    5. i. a recently issued copy of a birth certificate in the name of Juliet Veronica Morgan which gave details which corresponded with those of the witness Morgan;

    ii. a marriage certificate dated 5. March 1992;

    iii a letter of support dated 24 March 1992 ("the first false letter of support") purportedly signed by Julieth Veronica Morgan;

    iv. a letter of support dated 27 January 1994 ("the second false letter of support") purportedly signed by Julieth Veronica Morgan;

  5. The Tribunal was satisfied that;

    6. i. the birth certificate related to the witness Morgan;

    ii. the witness Morgan had never married Mr Kesse;

    iii. the witness Morgan had not signed either false letter of support;

    iv. the witness Morgan had never been the subject of divorce proceedings at the suit of Mr Kesse.

  6. None of these facts were disputed by Mr Kesse. His case was that he had married a lady who had told him that she was called Julieth Veronica Morgan and had produced the copy birth certificate, the marriage certificate and the letters of support, that he had no reason to disbelieve her assertions as to who she was, that it was he who had been the subject of a cruel deception, that they had got divorced, that he had remarried a Miss Akoto and that he had not been able to trace his former wife.

  7. The Tribunal, having heard him and the witness Morgan, found that Mr Kesse was not a credible witness, that he well knew that his first wife was not called Julieth Veronica Morgan and that he conspired with some person unknown for them to adopt the name of Julieth Veronica Morgan and to undergo a ceremony of marriage with him, to write letters of support of his application to stay in the United Kingdom and, upon that being achieved in 1994, to initiate divorce proceedings in order to enable him, then, with indefinite leave to remain, to marry Miss Akoto a citizen of Ghana with whom he had been having an affaire and by whom he had had children, and to give her grounds to obtain indefinite leave to remain also.

  8. There were several reasons why the Tribunal on the material before it was entitled to come to the conclusion to which it did come quite apart from the inherent unlikelihood of a lady, without the knowledge of her intended, assuming a false identity for the purpose of marriage and the further unlikelihood of her being able to maintain this deception throughout the marriage. Indeed that proposition was not strenuously resisted by Mr Hammond on behalf of Mr Kesse. He however submitted that without her oral evidence the Tribunal might not have found that the SSHD had discharged the burden of proof which the law lays upon him in a case such as the present.

    9. The chronology

  9. 1986. Mr Kesse enters the UK and obtains limited leave. He overstays.

    10. Sept. 91 he meets J.V.Morgan and thereafter they start living together at 4 Edgehill House – according to Mr Kesse's evidence before the Tribunal

    5.3.92. date of alleged marriage to J.V.Morgan

    29.3.92. date of first false letter of support

    27.3.92. he applies for leave to remain as a spouse of J.V.Morgan. He submits a copy of the witness Morgan's birth certificate and the first false letter of support

    24.2.93. he is granted further limited leave to remain

    27.1.94. he submits the second false letter of support

    28.3.94. he is granted indefinite leave to remain

    May 1994 his wife leaves matrimonial home

    June 1994 he meets Miss Akoto, a citizen of Ghana

    August 94 Miss Akoto moves in with him

    26.4.95. he divorces J.V.Morgan - according to Mr Kesse

    27.4.95. a child is born to Mr Kesse and Miss Akoto

    25.7.96. a second child is born to Mr Kesse and Miss Akoto

    21.8.96. he marries Miss Akoto

    19.12.96. an application is made by Miss Akoto for leave to remain on the basis of her marriage to Mr Kesse

    21.12.96. Mr Kesse is interviewed by Immigration officer

    Thereafter the Home Office traces the witness Morgan

    28.3.97. The witness Morgan makes a statutory witness statement to the effect that she is a single woman and had never married or indeed met Mr Kesse

    6.5.97. Mr Kesse is further interviewed by Immigration officer. He can not explain the witness Morgan's statement or the fact that the false letters of support were not written by her. He was asked whether he would like to meet the witness Morgan and he said he wished to discuss it with his counsel before answering.

    4.11.98. SSHD decides to make the deportation order

    The Appeal hearing and the determination

  10. Mr Kesse appealed indicating that he would provide the appropriate information as soon as he had procured it.

  11. On 29.2.2000 the hearing of the appeal began before the Tribunal. The only live evidence was from Mr Kesse. The witness Morgan's statement dated 28.3.1997 was before the Tribunal. He claimed that he had not seen the witness Morgan's statement until the previous week, that he had taken no steps to find her and that it was up to the SSHD to produce her. In cross-examination he stated that he had tried to find her, had gone to a place where he had been told that she would be but he had not found her there. He claimed that he had no intention of seeking leave to remain in the United Kingdom when he married her three weeks earlier. The first false letter of support indicated that J.V.Morgan and Mr Kesse had been living together for 3 years. This was at variance with the chronology given by Mr Kesse. Before the Tribunal he explained this discrepancy as having nothing to do with him since it was his deceitful wife who had written the letter.

  12. What happened thereafter we can take from the following paragraphs in the Tribunal's determination.

    13. 56. The Tribunal reserved its determination on 29 February 2000, but, in considering the evidence and the submissions made, was of the opinion that, in the interests of justice, particularly as the appellant's contention, as set out in his grounds of appeal and relied upon in submissions, was that he had genuinely married a person who was called Julieth Veronica Morgan, whom he originally believed to be a British citizen, that he had lived with her, and that, if there were any deception at all, it was he who had been deceived and that he had never been a party to any deception, the Tribunal re-opened the hearing [on 16.3.2000] for submissions on the question of the consideration of the calling of Miss Julieth Veronica Morgan as a witness.

    60. Both Mr Hammond and Mr. Saunders [who represented the appellant and the SSHD respectively] were of the view that the Tribunal did not have the power to summon Miss Julieth Veronica Morgan as a witness.

    61. The Tribunal, having considered the authorities, held that it had the power to summon a witness.

    64. On 15 June 2000 therefore, Miss Morgan appeared before the Tribunal, gave evidence and was subjected to cross-examination by both Mr. Hammond and Miss Wilson who represented the Secretary of State on that occasion.

    65. The purport of Miss Morgan's evidence was that she did not know and never had previously seen the appellant; that she had neither married him nor anyone else; that she had never been divorced; and, apart from the signature on the statement she had made to a Chief Immigration Officer on 28 March 1997, none of the signatures on the other documents was hers; that she had never obtained a copy of her birth certificate; that the original of her birth certificate had always been in her private possession and that the only time when it could have been taken, if it had been taken, was when she was living with another family, around 1992 and 1993.

    66. During the course of the examination of Miss Morgan, the appellant, himself, stated that he had never met her before, that she was not the woman whom he had married and divorced, and that she looked wholly different.

    70. The points at issue in this appeal are whether or not the Secretary of State has established, to the standard of a high degree of probability, that the appellant had used deceit in applying for leave to remain in the United Kingdom by virtue of his marriage to a British citizen, which marriage he knew not to be a genuine one, whether or not his conduct rendered his deportation to be conducive to the public good, and whether or not there was [sic] any compelling compassionate circumstances which would outweigh the appellant's deliberate circumvention of the United Kingdom Immigration control.

    71. The evidence before the Secretary of State regarding the marriage of the appellant to Julieth Veronica Morgan, is a marriage certificate, dated 5 March 1992, and his wife's birth certificate showing her to be a British citizen, born in Manchester, on 31 December 1967, two letters of support purportedly signed by Julieth Veronica Morgan, on 24 March 1992, and 27 January 1994, respectively, a Statutory Statement written by Julieth Veronica Morgan, on 28 March 1997, to the effect that she is single, had never married the appellant, had never met him and does know him, the signature on which Statutory Statement bears no resemblance to either of the signatures on the letters of support, the Divorce Petition of the appellant, citing the adultery of Julieth Veronica Morgan, and signed by both the appellant and Julieth Veronica Morgan, the signature of the latter, again, bearing no resemblance to that on the Statutory Statement and the letters of support.

    82. We heard Miss Julieth Veronica Morgan who, from her evidence and that of the birth certificate in that name, the details of which she gave, without its having been shown to her, satisfied the Tribunal that she was the person to whom the birth certificate before the Tribunal related. From her evidence we are satisfied that she was telling the truth and that she was, clearly, not the person whom the appellant married and divorced, and who, as a result of his marriage, was granted indefinite leave to remain in the United Kingdom [sic]. We are also satisfied that she had never requested or had issued to her the birth certificate which was issued in 1991 and which had been sent to the Home Office after the marriage of the appellant on 5 March 1992.

    83. In our opinion, a copy of the birth certificate was obtained by someone other than Miss Julieth Veronica Morgan.

    85. In our opinion, while it is accepted that the burden of proof lies on the Secretary of State, and that the standard of proof is the higher Khawaja standard, the evidence before us shows that the appellant is not a credible witness, and we so find. Further, we are not satisfied that the appellant married the Julieth Veronica Morgan whose birth certificate was produced for the purpose of the marriage. We find that what Julieth Veronica Morgan stated in her Statutory Statement, on 28 March 1997, and before us on 15 June 2000, is true. And, in this connection, we are satisfied that the appellant and his, then, counsel were aware of that statement and of the address of Julieth Veronica Morgan, at the interview on 6 May 1997, had every opportunity of making contact with her and, if considered necessary, could have produced a statement from her or called her to give evidence on the appellant's behalf, but that they had failed to take any action whatsoever in the matter.

    86. With regard to Mr. Hammond's submission that, as the burden of proof was on the Secretary of State, it was he should have called her, and the appellant, we have considered the matter, but, in view of the fact that the appellant was aware of the whereabouts of Julieth Veronica Morgan, since 6 May 1997, and had taken no steps whatsoever to get in touch with her, when, if his story is true, that he had married her on 5 March 1992, he would have taken the most logical step of getting her, or whoever he had married on that date, to admit that fact.[sic]

    87. As we see this whole situation, the matter comes down to whether the Secretary of State has established, to the standard required, that the appellant entered into the marriage with the lady whom we have found not to be Miss Julieth Veronica Morgan, as a dishonest and deceitful way of attempting to obtain leave to remain in the United Kingdom under the Immigration Act 1971.

    88. The evidence before us is that the appellant had overstayed his limited leave to enter the United Kingdom, having entered some time in 1986, and that, on 27 March 1992, he had applied for leave to remain as the spouse of a Miss Julieth Veronica Morgan whom he had married on 5 March 1992. We now know that while the person whom the appellant claimed to have married was not Julieth Veronica Morgan, nevertheless, two letters purporting to have been singed by her were sent to the Home Office in support of the appellant's application to remain in the United Kingdom.

    89. In the first of these letters, dated 24 March 1992, the writer states that she and the appellant had been living together as man and wife for three years before the marriage. However, the appellant, in evidence, did not bear that out; he having said that he had met her at the Notting Hill Carnival in September 1991, and that they had lived together only since then, before marrying her in March 1992. Under cross-examination the appellant could not explain this discrepancy satisfactorily.

    90. In the second place, while the second letter is dated 27 January 1994, in evidence before us, the appellant said that he had had a lot of difficulties with his first wife and that those difficulties had started about a year before she had finally left him in July 1994, but, if that were so, it is difficult to accept the truth of the letter, where it stated:

    "We were married in March 1992 and still lived together as man and wife in the address above and intend to live together permanently".

    91. And when it also appeared from the evidence that, during the time the appellant had been having these difficulties with his first wife, he had been having an affair with Miss Akoto, by whom he had had a child in April 1995, it appears to us that the contents of the letter do not reflect the true situation as it was at the time.

    92. In addition, while the appellant said that no difficulties had arisen before May 1994, he had also said that the difficulties had arisen about a year before July 1994, and had also said that he had returned from work late at night on a number of occasions and had found her with a boyfriend or boyfriends, while adding that she had confessed that she had committed adultery.

    93. Looking at that evidence, we are not satisfied that, if the marital situation between the appellant and his first wife was such as he had said in evidence, the first wife would have written the letter of 27 January 1994, unless what she was saying was untrue. Or, if it were true, as at 27 January 1994, it is difficult to believe that she would not resile from what was stated in that letter, either before definite leave had been granted, on 28 March 1994, or as soon after that date as possible, in the light of the difficulties which would appear to have been taking place in the marriage.

    94. We have looked at this evidence and, as it is the appellant himself and not the first wife who would gain by his application for indefinite leave to remain, we consider that, if the marriage were a genuine one and, as the appellant said, it was his wife who carried on the correspondence with the Home Office, on account of his illiteracy, it casts grave doubts on the truth of those letters, which doubts are made more serious by the lack of any retraction of those letters by the first wife on the commencement of the breakdown of the marriage, sometime between July 1993 and July 1994.

    95. Again, where the evidence as to the divorce proceedings is concerned, the evidence indicates a number of discrepancies with regard to the place of residence of the appellant and his first wife, which he explained as being mistakes made by the solicitor, but, looking at the divorce documents, it appears to us that some of the matters stated there do not tally with the appellant's evidence, such as, for example, when the first wife left the matrimonial home, the fact that the signature "J.V. Morgan" does not bear any resemblance to the signature on the letter of 24 March 1992, yet the appellant stated that he identified that signature as being that of his first wife, and the fact that the first wife's first name appears as "Juliette" when it has clearly been "Julieth" throughout. In our considered opinion, the appellant has not been telling the truth. As we see the whole matter, the appellant has been endeavouring to remain in the United Kingdom and has conspired with some person or persons unknown to adopt the name and identity of Julieth Veronica Morgan, to undergo a ceremony of marriage with her, to write letters in support of his application to stay in the United Kingdom, and, upon which being achieved in 1984 [sic], to initiate a divorce in order to enable him, then, with indefinite leave to remain, to marry Miss Akoto, a citizen of Ghana, with whom he had been having an affaire and by whom he had had children, and give her grounds to obtain indefinite leave to remain also. We do not believe the appellant's evidence that he was deceived by a person who called herself Julieth Veronica Morgan and find that he well-knew that the woman he had married was not Julieth Veronica Morgan, throughout this whole matter.

    96. Accordingly, we find that the Secretary of State has established that the appellant had entered into the marriage in a dishonest and deceitful way in order to obtain leave to remain in the United Kingdom under the Immigration Act 1971, to which he was not entitled, and that his appeal fails.

    97. This appeal is, accordingly dismissed.

    98. The Tribunal, in dismissing this appeal has taken note of the evidence of [the witness] Morgan but considers that, even if her evidence is excluded, the tribunal's finding of lack of credibility in the appellant and its finding that he deliberately entered into the marriage as a dishonest and deceitful way of obtaining leave to remain under the Immigration Act to which he was not entitled, would still have been established by the Secretary of State.

    The Immigration Appeals (Procedure) Rules

  13. The relevant Rules are

  14. Rule 2 which includes the following

    15. 'appellate authority' means an adjudicator or the Tribunal

  15. Rule 18(3)(b)

    16. if, to enable it to arrive at a proper determination of the appeal, the Tribunal requests the furnishing of further evidence relating to specified matters, it shall receive such further evidence

  16. Rule 27(1)

    17. An appellate authority may, for the purposes of an appeal, by summons require any person in the United Kingdom to attend as a witness at a hearing of the appeal ... and subject to the provisions of Rule 29(2) at the hearing to answer any questions or produce any documents in his custody or control as relate to any matter in question in the appeal;

    Provided that no person shall be required, in obedience to such a summons, to go more than 16 kilometres from his place of residence unless the necessary expenses of his attendance are paid or tendered to him, and, when the summons is issued at the request of any party to the appeal, those expenses are so paid or tendered by that party.

  17. Rule 28

    18. .... at any hearing by an appellate authority ...the appellate authority shall conduct the proceedings in such manner as it considers appropriate in the circumstances for ascertaining the matters in dispute and determining the appeal.

  18. Rule 29

    19. (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.

    (2) In any proceedings before an appellate authority, no person shall be compelled to give any evidence or produce any document which he could not be compelled to give or produce on the trial of an action ...

  19. Rule 37(e)

    20. An Appellate Authority may subject to the provisions of the Act and of these Rules regulate its own procedure.

    The reasoning of the Tribunal on calling the witness Morgan

  20. The Tribunal, while accepting that appellate authorities are judicial as distinct from administrative bodies and that the adopted process is adversarial, considered that the 1984 Rules permitted the Tribunal to go outside the adversarial process in order to do justice between the Appellant and the Secretary of State.

    21. The parties' submissions

  21. Mr Hammond submitted that the Tribunal lacked jurisdiction to summon a witness. Alternatively, he submitted that if the Tribunal had jurisdiction it was one to be exercised very sparingly and should not have been exercised in the present case.

  22. As to jurisdiction he drew our attention to several authorities.

  23. a dictum of Lord Denning M.R. in Jones v NCB [1957] 2 All ER 157 at p.159; "...the judge is not allowed in a civil dispute to call a witness whom [sic] he thinks might throw light on the facts. He must rest content with the witnesses called by the parties".

  24. The case on which that dictum was based : In re Enoch and Zaretzky, Bock & Co's Arbitration [1910] 1 K.B.327 C.A.. That was a case in which the conduct of an umpire was submitted to have been unfair and partial and it was sought to remove him for misconduct. Four matters were complained of which cumulatively persuaded this court to do so. Although the case is concerned with an arbitrator - and Farwell L.J. observed at page 337 "... whatever power a judge of the High Court has to call such a witness, an umpire has no such power - it is clear from that case that each of the Lords Justice considered that a high Court Judge had no power to call a witness without the assent of both parties.

  25. A decision of the Immigration Appeal Tribunal (Professor D.C.Jackson, Mr L.W.Chapman MBE and Mrs J.M. Abrahams J.P.) Sasan Sharifi Jamali TH/131186/84 dated 25.4.86. In that case it was held that a witness may only be called on the initiative of the Tribunal if both parties assent. The attention of the IAT in that case was drawn to the relevant procedural rule - which is now Rule 27 of the Immigration (Appeals Procedure) Rules 1984 - but that Tribunal took the view that this rule merely provided machinery for summoning a witness which a party wishes to call.

  26. A dictum of Lord Lane C.J. in R v Immigration Appeal tribunal ex p. Cheema and others [1982] Imm. A.R. 124 C.A. where he said

    27. "If in future there is any dispute as to the contents of an affidavit, quite plainly it would be proper and advantageous for application to be made to the tribunal for the attendance of the deponent to be cross-examined as to the contents of the affidavit ... I can see no reason why that should not be done. There must be many cases in which it would be highly desirable for that to take place ..."

  27. Mr Hammond submitted that the Tribunal had no greater powers to summon a witness than a judge and that this court was bound by Enoch to hold that a judge could not summon a witness without the assent of the parties. He accepted that if a judge under the present Civil Procedure Rules has power to summon a witness without the assent of the parties then the Tribunal would have such a power.

  28. As to the dictum in Cheema, he submitted that it assumed an application would be made for cross examination by one of the parties and so carried the present dispute no further.

  29. Mr Qureshi, who appeared for the SSHD, submitted that

    30. (i). the words in Rule 27

    "when the summons is issued at the request of a party to the appeal"

    were predicated on the assumption that a summons could be issued without there having been a request by a party to the appeal - otherwise they would be surplussage

    (ii) it was inappropriate in the light of the content of the Rules and the function of the Tribunal to regard proceedings before it as the same as civil proceedings

    (iii) The dictum in Jones was just that - a dictum. What the court was concerned about in that case was that the umpire had failed to achieve fairness as between the parties.

    (iv) Fairness was what lay behind the Civil Procedure Rules and Article 6 of the European Convention

    (v) The Civil Procedure Rules were relevant. Judges under the Civil Procedure Rules had a discretion to call witnesses without the assent of the parties. Under CPR3.2(m) the judge has power to

    "take any other step or make any other order for the purpose of managing a case and furthering the overriding objective"

  30. Under CPR 32.1(1) the court can also

    31. "control the evidence by giving directions as to - (a) the issues on which it requires evidence; (b) the nature of the evidence which it requires to decide those issues; and (c) the way in which evidence is placed before the court".

    (vi) The ground rules having changed, Jamali therefore was no inhibition on the exercise of this power by the Tribunal.

    (vii) Given that there was before the Tribunal at the first hearing the statement of the witness Morgan and that its truthfulness was not at that time admitted by the appellant, the Tribunal was entitled to take the view that the interests of justice required that the hearing should be reopened for the hearing of submissions on the question of calling the witness Morgan. She might, faced with Mr Kesse, have admitted that she had in truth married him, had that been the case.

    (viii) Cheema gave encouragement to the Tribunal in the present case to act as it did. The consequences for the witness Morgan of having given a false statement (if that is what it turned out to be) would have been as serious as those attendant upon swearing a false affidavit.

    (ix) Rule 27(1) read either on its own or in conjunction with Rule 18(3)(b) was plainly intended to confer a power to the IAT to call witnesses in circumstances where neither party wished to do that.

    (x) In any event, it was clear that, had the Tribunal taken the view that it had no jurisdiction to call the witness Morgan, it would still have dismissed the appeal. He relied on paragraph 98 which we have cited. He submitted that all that the oral evidence of the witness Morgan did was to confirm what was express or implied in her written statement. The position of the Tribunal was that it was prepared to come to a decision in favour of the SSHD even bearing in mind the high standard of proof required in these cases but that it felt a tiny doubt it being just conceivable that, faced with Mr Kesse, the witness Morgan might withdraw the assertions in her statement.

  31. In reply to this last submission Mr Hammond submitted that the very fact that the Tribunal thought it right to call the witness Morgan indicated that it was not sure that the appellant had obtained leave by deception. If it has been sure there would have been no point in calling her - she was manifestly not going to help him.

    32. Conclusion

  32. Although the submissions were originally made on the basis of the extent of the Tribunal's power to summon witnesses, it seems to us that the crucial question is whether the Tribunal had power to call the witness to give evidence. The answer to that question can not depend on whether the witness happens to be in court or not.

  33. The proper person to object to an irregular summons is the witness who has been summoned. Witness Morgan did not object. In our judgment Rule 27(1) gives the Tribunal power to summon a witness if that witness' evidence relates to any matter in question in the appeal. Clearly where the witness resides more than 16 kilometres away from the place where the hearing is taking place he is not required to comply with the summons unless his expenses are tendered. If neither party has requested his attendance then neither party is required to tender those expenses. It seems implicit in the proviso to Rule 27(1) that a summons may be issued albeit that neither party has requested it – perhaps because they do not wish to pay the expenses, perhaps for other reasons. We say it seems implicit because, if a summons could only be issued at the request of a party then the concluding 25 words of the subrule would have been replaced by some shorter phrase such as "by the party requesting his attendance".

  34. We do not consider it necessary to decide definitively whether a judge in civil proceedings has, at any event since the introduction of the Civil Procedure Rules, power to call a witness in circumstances where neither party wishes to call him. We observe that the position may differ depending on whether the suggestion that the witness be called is first made after final speeches or much earlier in the litigation.

  35. But did the Tribunal have power to call a witness who was present of its own volition?

  36. The Rules seem to us to envisage the possibility and propriety of the Tribunal exercising such a jurisdiction – see Rules 37(e), 18(3)(b), 28 and 29(1). We are conscious that Rule 18(3)(b) does not apply to adjudicators or the Tribunal when it is not sitting in an appellate capacity. However, the remaining Rules are directly relevant.

  37. Before us we have heard many appeals and applications in relation to immigration matters. It is clear that in many of those the litigants in front of the Tribunal and adjudicators were inadequately represented. It will often be in the interest of the litigants for the Tribunal to insist on the production of some evidence before it makes up its mind finally on a matter. So there is nothing surprising in the Tribunal having wider powers than exist in a court of law. It clearly does : see Rule 29(1).

  38. Although the Tribunal does have a power to take evidence against the wishes of the parties it should in general hesitate and hesitate long before doing so. In particular when it has already retired to consider its determination without giving warning that it might take such a course. However, that it has power to do so we do not doubt. It is, we note, common ground that if one of the parties calls a witness in relation to one issue and he is not asked questions about another relevant issue either in chief or in cross-examination the Tribunal nevertheless has power to ask any question relevant to the issue which the parties chose not to explore with that witness.

  39. In the present case, we doubt whether we should ourselves have issued the witness summons. It is clear that, even before the witness Morgan was called, there was before the Tribunal ample material from which it could conclude that Mr Kesse had obtained leave to enter by deception. It was open to the Tribunal so to conclude without oral evidence being given by the witness Morgan – a situation which might have been unavoidable had she died after making her statement.

  40. It appears from paragraph 98 of the determination that the Tribunal would have so concluded had the witness Morgan not given oral evidence. That does not surprise us. We would also have reached that conclusion.

  41. However, the Tribunal decided that in order to resolve a question which at one stage it seems Mr Kesse had asserted as a fact - namely that he had indeed married Julieth Veronica Morgan but had been unable to find her– it would be appropriate to hear what the lady had to say. We consider that they had the power to come to such a decision and that it was not procedurally improper for the Tribunal to call her.

  42. It is also clear that no injustice has been done to Mr Kesse as a matter of substance. In the event the substance of what the witness Morgan said was to repeat what she had already written in her statement. Moreover, Mr Kesse accepts that what she both wrote and said is the truth of the matter.

  43. In those circumstances, even if we had been of the view that there had been a procedural irregularity we would not be minded to allow the appeal on that basis. It would not be sensible to allow every procedural irregularity to result in a quashing of the original decision. Whether any irregularity should lead to that result must be a question of fairness. Mr Kesse has not been unfairly treated.

    44. We therefore dismiss this appeal.

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URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/177.html