Referring to the decsision in Aissaoui, the tribunal set out guidelines: ‘(1) As a general rule it is best practice for an adjudicator hearing an appeal de novo not to read the Determination of a previous adjudicator unless expressly invited to do so, so as to avoid any misunderstanding of what has influenced him. There is no prohibition, however, on reading the Determination.
(2) If the adjudicator considers it appropriate to read the Determination, he should not do so until he has told the parties of his intention, and invited their comments.
(3) There will be instances where parties invite him to read the Determination because, for example, the findings of fact have been accepted, and the re-hearing is to consider the conclusions to be drawn from those findings. This invitation should be recorded in his Determination.
(4) The previous record of proceedings, and not the earlier Determination, can if necessary provide confirmation of what evidence was given at a previous hearing.
(5) If an Appellant does not attend the de novo hearing, an adjudicator may rely on the evidence given at the previous hearing when forming his independent view of the case, but without reference to an earlier Determination.
(6) Parties seeking to challenge a Determination on the basis that an adjudicator has read a previous Determination should only do so where there are clear grounds for challenge, other than the mere fact of reading the Determination. Reading a previous Determination of itself is not a proper ground of appeal.’
Citations:
(2001) Appeal No: 01TH02902
Jurisdiction:
England and Wales
Citing:
Cited – Regina v Secretary of State for the Home Department ex parte Aissaoui Admn 1997
The IAT had remitted an appeal to be heard de novo by another adjudicator. The second adjudicator dismissed the appeal, but recorded that the determination of the first adjudicator had been on file and that he had ‘had the advantage of having . .
Cited by:
Cited – Swash v Secretary of State for the Home Department CA 26-Jul-2006
The appellant challenged refusal of the grant of leave to remain in the UK. The court was asked as to the approach to be adopted by the AIT on reconsideration of an appeal when it has concluded that there was an error of law in the original . .
Lists of cited by and citing cases may be incomplete.
Immigration
Updated: 10 May 2022; Ref: scu.244738