Case No. UKUT-00450(IAC)

Having considered all documents lodged by the parties and having heard the parties’ respective representatives, Mr N Armstrong, of Counsel, instructed by Bindmanns Solicitors, on behalf of the Applicants and Mr S Kovats QC, of Counsel, instructed by the Government Legal Department, on behalf of the Respondent, at a hearing at Field House, London on 02 August 2016. (64) As we have observed at a number of stages of these proceedings and in particular in the reserved interlocutory order which was promulgated on 17 July 2016 there has been much pre-trial activity in these combined proceedings. Today’s has as its main focus the issue of disclosure of documents from both the Secretary of State and also ETS, the interested party whose activities form an important part of the actual framework.(65) At this stage of the combined hearing, namely at the beginning of the hearing of the two conjoined judicial review applications we are required to rule on a discrete issue relating to the reception of oral evidence.(66) The origins of this issue can be traced to the order of Mr Justice Green in the High Court dated 21 March 2016. His Lordship ordered inter alia in paragraph 3 that the parties shall prepare for the final hearing on the basis that there will be oral evidence and cross-examination of the applicant, Hermanis Gardner, Roxanna Crann and Bernard Everdince but it should be a matter for the trial Judge whether such oral evidence is required.(67) This very wise and pragmatic order has had the consequence that we are in a position to deal with the question of the reception of oral evidence without any unwelcome obstruction of or delay in the transaction of this hearing.(68) The reception of oral evidence in judicial review is undoubtedly a comparatively unusual occurrence just as an application for permission to cross-examine any party or witness equally is. These are, however, unusual proceedings. Furthermore, as a matter of general principle it may be said that in the contemporary world of judicial review the reception of oral evidence and the phenomenon of cross-examination are likely to be approached a little more flexibly than they would have been during a previous era.(69) Hence when it is stated by the Divisional Court in the case of