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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> S v Secretary of State for the Home Department (Sierra Leone) [2003] UKIAT 00075 (10 January 2003) URL: https://www.bailii.org/uk/cases/UKIAT/2003/00075.html Cite as: [2003] UKIAT 00075, [2003] UKIAT 75 |
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Heard at Field House
[2003] UKIAT 00075 S (Sierra Leone)
On 29 August 2003
Dictated 1 September 2003
Date Determination notified: 17.09.03
Between
APPELLANT
RESPONDENT
Mr M Davidson, a Senior Home Office Presenting Officer, appeared on behalf of the appellant and Mr K Kuranchie ,a representative with Refugee Law Centre appeared on behalf of the respondent
"I therefore find that there was no serious risk of the [respondent] being persecuted for a convention reason in those other parts Sierra Leone. The town certainly was safe."
The Adjudicator allowed the human rights aspect of the appeal under article 3. The grounds of application suggest that if the Adjudicator was minded to allow the respondent's article 3 claim, then he should have allowed the asylum claim also.
"Before us it was accepted on the behalf of the Secretary of State that the Tribunal should act even handily, and should only set aside a decision of an Adjudicator who has heard the evidence if it is plainly wrong on unsustainable. I do not regard the Adjudicator's conclusion as perverse or plainly wrong, nor do I think that the Tribunal was entitled, at any event by the process of reasoning which it had employed, to come to that conclusion.
Mr Mandrik Gill QC advanced a submission to the effect that even if we were satisfied that the Adjudicator was plainly wrong nonetheless we should dismiss the appeal by the Home Secretary because the "plainly wrong" test was only applicable to appeals by immigrants and not to those by the Secretary of State. For appeals in the latter category some even more stringent test was appropriate. I do not find it necessary to reach a concluding view on this submission although I am not presently persuaded by it.
Mr Wilken submitted, as I understood him, that even if were to allow the appeal and quash the decision of the Immigration Appeal Tribunal the effect of that would be to revive the appeal before the Tribunal. He submitted that the situation was changing inSri Lanka and that it would be useful for the Immigration Appeal Tribunal to consider the position in the light of the present day situation.
It might well be useful but I do not consider that it would be a proper use of the court's powers now, to send the case back to the Tribunal. The powers of this court are set out in CPR part 52.10. We have all the powers of the lower court. We may set aside or vary an order made by the lower court. Those provisions give us the power to allow the appeal from the Immigration Appeal Tribunal, set aside its determination, substitute a determination dismissing the appeal from the Adjudicator and thus restore his determination. The present is in my judgment an appropriate case in which to exercise that power, I accept that the Tribunal examines the situation in the country from which the refugee is fleeing as at the date of its determination. However, in the present case in my judgment there was nothing wrong with the Adjudicator's determination, there was therefore no reasons to appeal it and it would be wrong for the Home Secretary, on the back of an appeal which has been dismissed, to seek to re-examine the threat to the refugee with reference to a date later than the Adjudicator's determination. To permit this would merely encourage appeals by a party who has no ground for appeal but hopes the situation would change sufficiently to enable him to advance different arguments on different facts on appeals. Such procedures would not be in anyone's interest."
Richard Chalkley
Vice President