Jonathan Mitchell QC

It was reported yesterday that the Asylum and Immigration Tribunal had agreed to pay damages and costs to an eminent expert witness, Dr Alan George, who had been defamed in a recently-issued (but now withdrawn) decision of the Tribunal. This is, so far as I am aware, unprecedented; a decision of a tribunal might be expected to be protected by absolute privilege. It is however unsurprising that it is this particular tribunal which has established such an unenviable precedent. As fourteen academics recently complained to the President of the Tribunal, “the Home Office, when confronted by expert reports which they cannot challenge, routinely resort to attacking the integrity and credentials of the experts … Judges usually do not intervene to support and protect experts from such abuse. Equally regrettably, in their written determinations, judges often record the unjustifiable attacks, thereby conferring a degree of legitimacy upon them.”

There is little in the public domain as background to this particular case, although I note that the Tribunal has, deeply hidden on its website, this statement: “During the period 24 September 2008 to 10 October 2008 we carried a case report which was cited as SD (expert evidence) Lebanon [2008] UKAIT 00070 in which criticisms were made of Dr Alan George. Due to an administrative error the report which was published was a draft rather than the AIT’s final determination (which differed from the draft in material respects). The error has now been corrected and the final determination has been substituted for the draft. We sincerely apologise to Dr George for our error“. Whether this very peculiar statement, which is hard to reconcile with ordinary experience of how decisions come to be published, tells the whole story is unclear.

Dr George is a highly-respected expert on the affairs of the Middle East, who has given evidence in many asylum cases. In doing so, he performs a public service. It is a disgrace to the AIT that it permits its members to make, as they so often do, intemperate attacks on such experts for no better reason than that they have given evidence which is not in line with Home Office preconceptions, and in a manner which would be unheard of in any other tribunal or Scottish court. It is disturbing that the Home Office is now proposing, in an ill-publicised consultation paper, to allow the power of judicial review of decisions of this tribunal to be removed from the Court of Session and handed to the new Upper Tribunal to be established under the Tribunals, Courts and Enforcement Act 2007, so removing it further from the light of day.

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