R SS (Sri Lanka) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Leggatt,Sir Colin Rimer,Lewison LJ |
| Judgment Date | 15 June 2018 |
| Neutral Citation | [2018] EWCA Civ 1391 |
| Docket Number | Case No: C5/2015/4127 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 June 2018 |
[2018] EWCA Civ 1391
Lord Justice Lewison
Lord Justice Leggatt
and
Sir Colin Rimer
Case No: C5/2015/4127
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM) CHAMBER
AA/07428/2014
Royal Courts of Justice
Strand, London, WC2A 2LL
Shivani Jegarajah (instructed by Duncan Lewis) for the Appellant
Andrew Deakin (instructed by the Government Legal Department) for the Respondent
Hearing date: 22 May 2018
Judgment Approved
Introduction
The question raised on this appeal is whether, in cases heard by the First-tier Tribunal (Immigration and Asylum Chamber) (“FTT”) where the credibility of the appellant is in issue, there is a rule that a delay of more than three months between the hearing of oral evidence and the date of the FTT's decision renders the decision unsafe. The short answer to the question is that there is no such rule. In tribunal cases, as in court proceedings, excessive delay in making or promulgating a decision is not itself a reason for setting the decision aside. The correct approach is to ask whether the delay has caused the decision to be unsafe so that it would be unjust to let it stand. The only significance of the fact that delay between the hearing and the decision in an asylum case has exceeded three months is that, where the decision is challenged on an appeal, the Upper Tribunal should examine the FTT judge's factual findings with particular care to ensure that the delay has not caused injustice to the appellant.
The asylum claim
The appellant is a Sri Lankan national who entered the UK illegally – he says on 13 December 2013 hidden in the boot of a car. He claimed asylum three days later. The account that he gave in his screening interview and asylum interview was, in summary, that on 10 March 2009 (when he was aged 15) he had been forced to join the militant Tamil group known as the LTTE. He said that after nine days he escaped and returned to his family. On 19 March 2009 he and his family were captured by the Sri Lankan army and taken to a displacement camp where they were interned for two years before being released in May 2011. The appellant alleged that two years later, in May 2013, he was arrested and detained for a month before his brother obtained his release by paying a bribe. He alleged that, while detained, he was tortured and in consequence confessed to being a member of the LTTE. He said that after his release he stayed with his brother. The CID came looking for him at his parents' home but did not find him. His brother then took him to Colombo and subsequently arranged for an agent to take the appellant out of the country using a false passport and bring him to the UK.
On 25 April 2014 the appellant's claim for asylum was rejected by the Secretary of State on the ground that he had not shown a well-founded fear of persecution nor substantial grounds for believing that he would suffer serious harm if returned to Sri Lanka. The essential reason given for this decision was that the appellant's account was considered not to be credible.
Procedural history
The appellant exercised his right of appeal to the FTT. The appeal was heard on 23 December 2014 by FTT Judge Hamilton. The appellant was represented at the hearing and gave oral evidence (through an interpreter). He also relied on medical reports as evidence that he was suffering from PTSD and depression and that he had injuries (consisting of scars from cigarette burns) which were caused by torture during his detention in May 2013.
The decision and statement of reasons of the FTT is dated 23 April 2015, which can be taken to be the date on which its preparation was completed. There was then a further delay before the decision was promulgated on 5 June 2015: this was said by the FTT judge to be “due to an administrative error on my part, whereby I believed I had sent it off for promulgation when in fact I had not.”
In the result, the FTT judge dismissed the appeal. He gave detailed reasons for doing so, which run to 97 paragraphs. In those reasons, the FTT judge reviewed the medical evidence and the appellant's evidence and concluded that the appellant's account of his arrest, torture and fear of further mistreatment was not credible.
The appellant was granted permission to appeal to the Upper Tribunal (Immigration and Asylum Chamber) on the ground that it was arguable that, in view of the delay in preparing the decision, the judge's adverse credibility findings and conclusions were rendered unsafe. The appeal was heard on 1 September 2015 by Deputy Upper Tribunal Judge Davidge. He dismissed the appeal for reasons given in a decision promulgated on 17 September 2015. In particular, the Upper Tribunal judge found that a detailed consideration of the FTT decision did not substantiate the concern that the delay had made the judge's adverse credibility findings and conclusions unsafe. He noted that the FTT judge had kept a typed record of the proceedings which remained available to him and that the grounds of appeal did not take issue with the judge's recollection of the appellant's case or of the evidence given at the hearing. Furthermore, the adverse credibility findings were not based on the appellant's demeanour or oral evidence given at the hearing which the FTT judge might possibly have misremembered, but rather on discrepancies and difficulties apparent from the documentary evidence. The Upper Tribunal judge concluded that, “whilst the delay is regrettable, it does not give rise to any material error of law.”
Permission for a second appeal to the Court of Appeal was refused by the Upper Tribunal and again by the Court of Appeal when the application was considered on the papers. Permission was granted, however, when the application was renewed at an oral hearing on 17 May 2017. On that occasion the appellant's counsel, Ms Jegarajah, told the court that there is “an unwritten rule” and “a solid, consistent line” of practice in the Upper Tribunal that, where the appellant's credibility is in issue, delay of more than three months between the hearing of oral evidence and the date of determination by the FTT renders the determination unsafe. King LJ was persuaded that this was an important point which needed to be clarified by the Court of Appeal. To assist this court in deciding the point, King LJ gave directions requiring the appellant (1) to contact the respondent in order to elicit, if possible, a joint statement as to whether (in a case where credibility is in issue) delay of more than three months between the hearing of oral evidence and the date of determination by the FTT renders the determination unsafe, and also (2) to evidence his counsel's statement that there is an unwritten rule to that effect which is applied by the Upper Tribunal.
No joint statement has been agreed, as the respondent disputes the existence of the unwritten rule or practice alleged by the appellant's counsel. In support of his position, the respondent has adduced a statement approved by the President of the Upper Tribunal (Immigration and Asylum Chamber), which includes the following:
“Senior members of the Upper Tribunal are unaware of any rule requiring the Upper Tribunal to allow an appeal on the ground that there was a delay of more than three months (or indeed any specified period) before finalisation of a First-tier Tribunal decision.
…
When the Upper Tribunal entertains grounds for challenging a decision on credibility (whether because of delay or for any other reason) it will take into account the grounds and will determine the extent to which the detailed assertions made about specific findings are made out. The extent to which any of them depend on a mistake in the apprehension of, or a failure of recollection of, the evidence will fall to be considered as part of that process.”
The only material produced by the appellant pursuant to the direction that the evidence the unwritten rule alleged by his counsel is a bundle of authorities. As will be seen, the authorities do not support his counsel's statement. To the contrary, they demonstrate that there is no rule or practice of the kind alleged.
Relevant law and practice
In court proceedings, the correct approach to an appeal based on excessive delay in delivering judgment is well settled. The test was stated as follows by Lord Scott of Foscote, giving the judgment of the Privy Council in Cobham v Frett [2001] 1 WLR 1775, 1783:
“In their Lordships' opinion, if excessive delay, and they agree that 12 months would normally justify that description, is to be relied on in attacking a judgment, a fair case must be shown for believing the judgment contains errors that are probably, or even possibly, attributable to the delay. The appellate court must be satisfied that the judgment is not safe and that to allow it to stand would be unfair to the complainant.”
This test has been followed in a number of cases, including the decision of this court in Habib Bank Ltd v Liverpool Freeport (Electronics) Ltd [2004] EWCA Civ 1062, paras 18–19, and the further decision of the Privy Council in Jervis v Skinner [2011] UKPC 2, paras 44–45. The same cases also recognise that, although not of itself a sufficient reason to set aside a judgment, excessive delay before the judgment was delivered may require an appeal court to consider the judge's findings of fact with particular care in order to ensure that the delay has not caused injustice to the losing party.
Before the present tribunal system was created, appeals from decisions of the Secretary of State in asylum cases were heard by Special Adjudicators, from whom an appeal lay to the Immigration Appeal Tribunal (“IAT”)....
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