Immigration lawBy Jane Coker, Coker Vis Partnership, LondonExpert evidence, military service and judicial reviewSlimani v Secretary of State for the Home Department (01/TH/00092 starred)This case concerned an Algerian who faced conscription into the Algerian army, and it looked at the use of expert evidence, military service and judicial review.It was argued for Mr Slimani that he genuinely found the activities of the military to be morally repugnant.

It was pointed out that there was evidence that the army had itself been responsible for killings and abductions which were allegedly perpetrated by the terrorists whom the army was fighting.The immigration tribunal referred to determinations in the cases of Foughali (00/TH/01513) and Sepet and Bulbul (00/TH/ 01266) (the latter has been heard by the Court of Appeal, and judgment is awaited).

The tribunal, by starring Slimani, stresses that the guidance in those cases should be followed in relation to military service.The tribunal then considered the position regarding expert evidence.

It commented that adjudicators and the tribunal regularly have their own opinions about the situation in the country from which the appellant has come.

The tribunal stated that they are very rarely entirely objective in their approach and that many have fixed opinions about the regime in a particular country.The tribunal then drew the conclusion that more often than not the expert in question will be acting more as an advocate than an expert witness.

It referred to the principles that apply to expert witnesses in the High Court and, while not directly applicable, it gives guidance as to the weight to be placed on evidence produced to adjudicators and the tribunal (see Civil Procedure Rules 1998, part 35).

In particular it drew attention to the need for independent assistance to the adjudicator or tribunal, the prohibition against assuming the role of advocate and the need to specify the facts upon which an opinion is based.The tribunal commented that frequently the opinion expressed is in the form of letters or statement and the writer is not called to give evidence or [to be] cross examined.

It also referred to the fact that reports prepared for one case are frequently relied on in other cases from the same country.

The tribunal asserts that this should not happen unless the report is stated to be general and that the author has been asked to confirm that he is content for it to be relied on.The consequence of this determination is that experts are more frequently going to have to be called to give oral evidence.

This will not only increase costs but will lengthen hearings.

The requirement that sources should be quoted is frequently not only an unobtainable demand but could be positively dangerous in some asylum scenarios.

The tribunal raised its concerns at the number of cases of permission being granted for judicial review where there is no real prospect of success on the merits.

It stressed the need for tribunals to consider the adjudicators determination and the reasons given but also to have regard to the evidence put before the adjudicator.There is an apparent acknowledgement that tribunals have not assisted in the past by adopting a formulaic approach to its reasons for refusing leave.Judicial review of decisions made prior to Human Rights Act 1998R v Secretary of State for the Home Department, ex parte Mahmood (Amjad) CA [2001] The Times, 9 JanuaryIn ex parte Mahmood, the Court of Appeal clarified the position regarding judicial review of an administrative decision taken prior to the coming into force of the Human Rights Act 1998 on2 October 2000, which would not take effect until after that date.

The court held by a majority that in cases involving fundamental human rights, in this case family life, the decision maker was required to demonstrate either that the proposed action in this case removal as an illegal entrant did not interfere with the right or, if it did, that considerations existed which might reasonably be accepted as amounting to a substantial objective justification for the interference.However, it was not accepted that the review should cover the legality of the decision at some time in the future when the decision is to take effect.

Rather, there was a sliding scale of review; the graver the impact of the decision....

the more substantial the justification that would be required.

The Master of the Rolls dissented and stated that on the facts of this case the court ought to approach the decision of the secretary of state as if the 1998 Act had been in force when he reached his decision.

But he came to the same conclusion, namely, that removal of an illegal entrant married to a woman settled in the UK with two children of the marriage was necessary in the interests of an orderly and fair control of immigration and that his right to respect for his family life had not been violated.Where a decision has been taken prior to the 2 October 2000, and it is subsequently alleged that it breaches an individuals human rights, there remains an appeal to an adjudicator against removal in accordance with section 65 of the Immigration and Asylum Act 1999 on the grounds that the secretary of state has, by the making of removal directions, acted in breach of the applicants human rights in breach of section 6(1) of the Human Rights Act 1998.However, the conclusion drawn by the Master of the Rolls in applying the Act, and article 8 as if it were in force at the time that the decision was initially taken, indicates a hardening of view in the extent to which the maintenance of immigration control is to be balanced against the fundamental human right of respect for family life.Practitioners will have to specify in great detail in the future the potential obstacles to the family relocating to an alternative country, the effect not only on the family at risk of relocation but also remaining extended family members and the long term effects not only on the couple but also on any children.

It remains to be seen how adjudicators and the tribunal will interpret and apply a set of facts to the balancing exercise required under article 8.