Mk (Duty to Give Reasons)
| Jurisdiction | UK Non-devolved |
| Judge | The Hon Mr Justice McCloskey,Perkins |
| Judgment Date | 10 October 2013 |
| Neutral Citation | [2013] UKUT 641 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 10 October 2013 |
[2013] UKUT 641 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
THE PRESIDENT, The Hon Mr Justice McCloskey
UPPER TRIBUNAL JUDGE Perkins
For the Appellant: Mr A Sinker (of counsel), instructed by Andrew Jackson Solicitors
For the Respondent: Mr G Harrison, Home Office Presenting Officer
MK (duty to give reasons) Pakistan
(1) It is axiomatic that a determination discloses clearly the reasons for a tribunal's decision.
(2) If a tribunal finds oral evidence to be implausible, incredible or unreliable or a document to be worth no weight whatsoever, it is necessary to say so in the determination and for such findings to be supported by reasons. A bare statement that a witness was not believed or that a document was afforded no weight is unlikely to satisfy the requirement to give reasons.
By letter dated 4 th June 2013, the Secretary of State for the Home Department (“ the Secretary of State”) refused the Appellant's application for asylum. The Secretary of State made a further decision which recorded that the Appellant had not sought entry under any other provision of the Immigration Rules and refused him leave to enter the United Kingdom, proposing to give directions for his removal to Pakistan. The Appellant exercised his right of appeal, invoking grounds which included his rights under the Refugee Convention and the ECHR. His appeal was dismissed by the First-tier Tribunal (“ the Tribunal”).
This appeal proceeds on two grounds. The first is that the Tribunal erred in law by failing to give reasons for determining that no weight should be attributed to a letter from the Ahmadiyya Muslim Association (“ AMA”). The second is that the Tribunal failed to provide adequate reasons for its assessment that the Appellant was not a credible witness. In short, it is contended that the Tribunal's determination is inadequately reasoned.
The Appellant's grounds of appeal to the Tribunal put his case clearly and coherently:
“ The Appellant contends that he has a well founded fear of persecution under the 1951 Geneva Convention. This is a real risk of serious harm to the Appellant and a threat to his life or freedom on the basis of his membership of a particular social group if he is returned to Pakistan ……
The Appellant submits that he would face mistreatment and harassment and that he will be kidnapped ….. He would face a real risk of unlawful killing and torture or inhuman or degrading treatment ……
The Appellant contends that he is a practising Ahmadi ….. He is genuinely involved in the Ahmadi faith to the extent that his marriage was conducted in accordance with the Ahmadi rites in 1984 ….
There is a continuous attack on members of the Ahmadiyya community.”
From these passages one can readily gauge the framework of the appeal at first instance.
In considering the first ground of appeal, there are two basic considerations which combine to provide the starting point. First, the Tribunal determined to give no weight to the AMA letter. In paragraph [46], the Judge stated:
“ Taking into account the complete lack of credibility shown from the evidence before me I attach no weight whatsoever to the letter from the [AMA].”
The second is that the Judge provided no reasons for this aspect of his decision.
It is timely to recall what the AIT said in Tanveer Ahmed [2002] Imm AR 318, paragraph [38]:
Given the context of the present appeal, it is appropriate to draw attention to the further principle that evidence is relevant if it goes to proving or disproving a matter in issue. Furthermore, what is relevant in any given case is decided by the application of logic, common sense, fairness and human experience (Halsbury's Laws of England, 4 th Edition Re-Issue, Vol 17 (1), para 409). It is also useful to recall another basic principle:
“ The weight to be given to a particular item of evidence is a matter of fact which will be decided, largely on the basis of common sense, in the light of the circumstances of the case and of the views formed by the [tribunal] on the reliability and credibility of the witnesses and exhibits.”
[Halsbury, para 417]
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“ 1. In asylum and human rights cases it is for an individual claimant to show that a document on which he seeks to rely can be relied on.
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2. The decision maker should consider whether a document is one on which reliance should properly be placed after looking at all the evidence in the round.
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3. Only very rarely will there be the need to make an allegation of forgery, or evidence strong enough to support it. The allegation should not be made without such evidence. Failure to establish the allegation on the balance of probabilities to the higher civil standard does not show that a document is reliable. The decision maker still needs to apply principles 1 and 2.”
There is a related duty to explain the tribunal's assessment of the more important pieces of evidence and to provide reasons for choosing to give (as the case may be) no, little, moderate or substantial weight thereto. Properly analysed, this discrete duty and the principles highlighted in paragraph [5] above are aspects of two overarching duties of hallowed importance. The first is the duty of every court or tribunal to afford the parties a fair hearing, within the parameters of the governing legal rules and principles. The second is the long established judicial duty to provide a reasoned decision. It matters not whether these are separate duties or two sides of the same coin, forged together by the common law principle of fairness. Each of these duties is properly described as elementary in nature.
Given that an asserted failure to provide any or adequate reasons for decisions of the First-tier Tribunal or important aspects thereof features with some frequency in applications for permission to appeal to this Tribunal, it may be timely to reflect on the doctrinal considerations and principles in play. In an immigration case decided some 30 years ago, R v Immigration Appeal Tribunal ex parte Khan [1983] QB 790, Lord Lane CJ said (at page 794):
“ The important matter which must be borne in mind by Tribunals in the present type of circumstances is that it must be apparent from what they state by way of reasons first of all that they have considered the point which is at issue between the parties and they should indicate the evidence on which they have come to their conclusions. Where one gets a decision of a Tribunal which either fails to set out the issue which the Tribunal is determining either directly or by inference, or fails either directly or by inference to set out the basis on which it has reached its determination on that issue, then that is a matter which will be very closely regarded by this Court and in normal circumstances would result in the decision of the Tribunal being quashed. The reason is this. A party appearing before a Tribunal is entitled to know, either expressly stated by it or inferentially stated, what it is to which the Tribunal is addressing its mind. In some cases it may be perfectly obvious without any express reference to it by the Tribunal; in other cases it may not. Second, the Appellant is entitled to know the basis of fact on which the conclusion has been reached. Once again in many cases it may be quite obvious without the necessity of expressly stating it, in others it may not.”
[Emphasis added]
In a slightly different context, Buckley LJ stated:
“ Litigants are entitled to know on what grounds their cases are decided. It is of importance that the legal profession should know on what grounds cases are decided, particularly when questions of law are involved. And this Court is entitled to the assistance of the Judge at first instance by an explicit statement of his reasons for deciding as he did.”
[ Capital & Suburban Properties v Switcher [1976] Ch 319, p 326]
In R v Crown Court at Harrow, ex parte Dave [1994] 1 All ER 315, this passage was considered by the Divisional Court to be “ of general application” (at page 322). In Eagil Trust v Piggott-Brown [1985] 3 All ER 119, Griffiths LJ formulated the general rule that a professional Judge should give reasons for his decision, while simultaneously acknowledging that the particularity required must depend on the circumstances of the individual case and the nature of the decision being made (at page 122).
More recently, in Flannery v Halifax Estate Agencies [2000] 1 All ER 373, one finds a comprehensive exposition of the duty imposed on today's professional Judge. The Court of Appeal observed, first (at page 377):
“ It is not a useful task to attempt to make absolute rules as to the requirement for the Judge to give reasons. This is because issues are so infinitely various.”
The following passages in the judgment of Henry LJ are deserving of full reproduction:
[Emphasis added.]
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“ (1) The duty [to give reasons] is a function of due process and therefore of justice. Its rationale has two principal aspects. The first is that fairness surely requires that the parties – especially the losing party – should be left in no doubt why they have won or lost. This is especially so since without reasons the losing party will not know …. whether the Court has misdirected itself and thus whether he may have an available appeal on the substance of the case. The second is that a requirement to give reasons concentrates the mind; if it is fulfilled, the resulting decision is much more likely to be soundly based on the evidence than if it is not.
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(2) The first of these aspects implies that want of reasons may be a good self standing ground of appeal. Where because no reasons are...
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