SS v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE OUSELEY,PRESIDENT |
| Judgment Date | 05 March 2004 |
| Neutral Citation | [2004] UKIAT 39 |
| Court | Immigration Appeals Tribunal |
| Date | 05 March 2004 |
[2004] UKIAT 39
IMMIGRATION APPEAL TRIBUNAL
The Honourable Mr Justice Ouseley (President)
Mr S L Batiste
Mr M L James
For the Appellant: Ms C Bayati, instructed by M K Sri & Co
For the Respondent: Ms T Hart, Home Office Presenting Officer
SS (Adjudicators differing on family members) Sri Lanka
This is an appeal from an Adjudicator, Mr Andrew Jordan, in a human rights appeal given in a determination promulgated on 15 th November 2002. He dismissed the Appellant's human rights claim.
The Appellant is a Tamil citizen of Sri Lanka, born in January 1967, who arrived by plane in the United Kingdom from Colombo on 14 th March 1999 with no travel documents and claimed asylum on arrival. On 12 th April 2000 the immigration officer refused her leave to enter and proposed that she be removed to Sri Lanka. Her asylum appeal was heard on 15 th August 2000 by an Adjudicator, Mrs Symons JP, who in a determination promulgated on 5 th September 2000 dismissed her asylum claim.
Mrs Symons did not find the Appellant or her story of arrest, detention and beating to be credible. She had given evidence that one of her brothers, who had left Colombo with her and had made an asylum claim, had been detained and released with her. Mrs Symons found a number of inconsistencies in her evidence about that which added to her doubts about the Appellant's credibility.
On 30 th June 2000, another Adjudicator, Mr J F W Phillips, heard the appeal of her brother Balarmanan against the refusal of his asylum claim by the Secretary of State on 3 rd April 2000. He had arrived in the United Kingdom with the Appellant on 14 th March 1999. Mr Phillips allowed the asylum appeal in a determination sent on 14 th August 2000. He described how he had been arrested by the Sri Lankan army in October 1998, detained for one week and severely beaten during questioning on one day. He was also beaten by PLOTE. The essence of the Respondent's case in the brother's appeal was not so much to take issue with his credibility but rather to say that he was not at a real risk of persecution were he to be returned. Mr Phillips found the brother to be generally credible, said that there had been no real cross-examination on credibility and found that there was a reasonable likelihood that what the brother had told him was true. Mr Phillips concluded that the brother's detention and mistreatment amounted to persecution for a Convention reason and concluded that there was a real risk that, as a failed asylum seeker, he would be interrogated on return, that that interrogation might lead to more rigorous questioning and to potential ill-treatment which might reveal his LTTE connections. Accordingly, he concluded that to return the brother to Sri Lanka would be in breach of the Geneva Convention. There was no appeal by the Secretary of State against the decision in respect of Balarmanan.
M K Sri and Co were acting for both Appellants. However, on 11 th September 2000 after the determination of her brother's appeal, this Appellant sought leave to appeal from the determination of Mrs Symons. Various grounds were raised covering some seven pages. The grounds complained about the absence of weight attached to scarring, the alleged disregard of objective evidence and the finding that the Appellant did not have a well founded fear of persecution in the north of Sri Lanka. Permission to appeal was refused by the Tribunal in a determination notified on 29 th September 2000. There were no subsequent proceedings. None of the grounds of appeal referred to the decision in her brother's appeal by Mr Phillips, which would already have been received by M K Sri and Co.
Neither the brother no the sister gave evidence in each other's asylum appeals, even though at the time when the sister's appeal was being heard, the brother's appeal and his evidence in it had already been heard, though the determination had not yet been received. Her appeal was heard the day after the determination in her brother's appeal was promulgated, but the determination would not yet have been available. At no stage did either of them seek the linking of the cases. The brother did not seek the adjournment of his appeal so that it could be dealt with at the same time as his sister's. She made no application in that respect either.
Subsequently, this Appellant sought leave to remain under the Human Rights Act 1998 in a letter of 12 th January 2002. This was refused by a notice dated 17 th January 2002 and the Appellant appealed under section 65(1) of the Immigration and Asylum Act 1999 on 24 th January 2002. It is this appeal which was heard by the Adjudicator, Mr Jordan, in November 2002.
Her main claim was based on Article 3 which had a close relationship to the case which she had failed to make in relation to persecution. She did, however, rely upon the success that her brother had had. She also relied under Article 8 upon the fact that she had three brothers in the United Kingdom. One is the brother who was granted asylum on appeal by Mr Phillips, another had been in the United Kingdom for ten years and had originally been granted ELR which had led later to a grant of indefinite leave to remain. A third brother in the United Kingdom since 1996 had had his asylum claim refused and was awaiting the result of a human rights claim from the Home Officer. Her mother and sister were in Canada; her only relatives in Sri Lanka were LTTE members.
The Tribunal gave guidance in Devaseelan [2002] UKIAT 00702* as to how an Adjudicator hearing a human rights appeal should approach the findings of fact made by an earlier Adjudicator in the related asylum appeal by the same Appellant. The Adjudicator rightly concluded that the guidelines were relevant to the decision which he had to make. We set out those guidelines from paragraphs 39–42 of the determination.
-
“(1) The first Adjudicator's determination should always be the starting-point. It is the authoritative assessment of the Appellant's status at the time it was made. In principal issues such as whether the Appellant was properly represented, or whether he gave evidence, are irrelevant to this.
-
(2) Facts happening since the first Adjudicator's determination can always be taken into account by the second Adjudicator. If those facts lead the second Adjudicator to the conclusion that, at the date of his determination and on the material before him, the Appellant makes his case, so be it. The previous decision, on the material before the first Adjudicator and at that date, is not inconsistent.
-
(3) Facts happening before the first Adjudicator's determination but having no relevance to the issues before him can always be taken into account by the second Adjudicator. The first Adjudicator will not have been concerned with such facts, and his determination is not an assessment of them.
-
(4) Facts personal to the Appellant that were not brought to the attention of the first Adjudicator, although they were relevant to the issues before him should be treated by the second Adjudicator with the greatest circumspection. An Appellant who seeks, in a later appeal, to add to the available facts in an effort to obtain a more favourable outcome is properly regarded with suspicion from the point of view of credibility. (Although considerations of credibility will not be relevant in cases where the existence of the additional fact is beyond dispute). It must also be borne in mind that the first Adjudicator's determination was made at a time closer to the events alleged and in terms of both fact-finding and general credibility assessment would tend to have the advantage. For this reason, the adduction of such facts should not usually lead to any reconsideration of the conclusions reached by the first Adjudicator.
-
(5) Evidence of other facts – for example country evidence – may not suffer from the same concerns as to credibility, but should be treated with caution. The reason is different from that in (4). Evidence dating from before the determination of the first adjudicator might well have been relevant if it had been tendered to him: but it was not, and he made his determination without it. The situation in the Appellant's own country at the time of that determination is very unlikely to be relevant in deciding whether the Appellant's removal at the time of the second Adjudicator's determination would breach his human rights. Those representing the Appellant would be better advised to assemble up-to-date evidence than to rely on material that is (ex hypothesi) now rather dated.
-
(6) If before the second Adjudicator the Appellant relies on the facts that are not materially different from those put to the first Adjudicator, and proposes to support the claim by what is in essence the same evidence as that available to the Appellant at that time, the second Adjudicator should regard the issues as settled by the first Adjudicator's determination and make his findings in line with that determination rather than allowing the matter to be re-litigated. We draw attention to the phrase ‘ the same evidence as that available to the Appellant’ at the time of the first detention. We have chosen this phrase not only in order to accommodate guidelines (4) and (5) above, but also because, in respect of evidence that was available to the Appellant, he must be taken t have made his choices about how it should be presented. An Appellant cannot be expected to present evidence of which he has no knowledge: but if (for example) he chooses not to give oral evidence in his first appeal, that does not mean that the issues or the available evidence in the second appeal are rendered any different by his proposal to give oral evidence (of the same facts) on this occasion.
-
(7) The force of the reasoning...
To continue reading
Request your trial
-
Upper Tribunal (Immigration and asylum chamber), 2004-03-05, [2004] UKIAT 39 (SS (Adjudicators differing on family members))
...differing on family members) Sri Lanka [2004] UKIAT00039IMMIGRATION APPEAL TRIBUNALDate of Hearing: 3rd February 2003Date determination notified:05 March 2004Before:The Honourable Mr Justice Ouseley (President)Mr S L BatisteMr M L JamesBetween:APPELLANTandSecretary of State for the Home Dep......
-
SR (Credibility - Fact Finding)
...the scope of the series of the Tribunal decisions in Jeyachandran and subsequently as for example in Sathiyamoorthi 3 rd February [2004] UKIAT 00039S (Sri Lanka). In that case, the Tribunal in paragraphs 43 and 46 considered the latest position in relation to Sri Lanka and concluded that ch......