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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> SS (Sri Lanka), R (On the Application Of) v The Secretary of State for the Home Department [2018] EWCA Civ 1391 (15 June 2018) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2018/1391.html Cite as: [2018] EWCA Civ 1391 |
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ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM) CHAMBER
AA/07428/2014
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE LEGGATT
and
SIR COLIN RIMER
____________________
The Queen on the application of SS (Sri Lanka) |
Appellant |
|
- and - |
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The Secretary of State for the Home Department |
Respondent |
____________________
Andrew Deakin (instructed by the Government Legal Department) for the Respondent
Hearing date: 22 May 2018
____________________
Crown Copyright ©
Lord Justice Leggatt:
Introduction
The asylum claim
Procedural history
"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."
Relevant law and practice
"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."
"a memorandum had recently been distributed to all Tribunal Chairmen, in an effort to obtain some uniformity of thought, that subject to the particular circumstances of the case, any period in excess of three months between the date of hearing and the date of promulgation would be unacceptable."
Reference was also made to the judgment of the IAT (HH Judge Pearl presiding) in Mario [1998] Imm AR 281, 287, which observed that:
"In an area such as asylum, where evidence requires anxious scrutiny, the Tribunal will usually remit a case to another adjudicator where the period between the hearing and the dictation of the termination is more than three months."
"16. In my view, the decision in Mario was no more and no less than a useful statement of guidance to practitioners upon the usual attitude and likely decision of the IAT in a case where an issue essential to the disposition of the claim for asylum depends upon a careful weighing of the credibility of the applicant and yet it appears that the delay between the hearing date and the preparation of the determination exceeds three months. In the absence of special or particular circumstances, that is plainly a useful and proper rule of thumb which, in the experience of the Tribunal, it is broadly just to apply, for the twin reasons that substantial delay between hearing and preparation of the determination renders the assessment of credibility issues unsafe and that such a delay tends to undermine the loser's confidence in the correctness of the decision once delivered. No doubt that is the reasoning which underlay the memorandum referred to in Waigango.
17. That said, I also consider it plain that the reference in Waigango to the "particular circumstances of the case" in which the Tribunal may properly think it appropriate to depart from the rule of thumb is likely to cover a broad spectrum of individual cases. Apart from the cases already mentioned, i.e. where the delay may be administrative or the findings on credibility contemporaneously recorded, such circumstances would for instance cover the situation where, by reason of the terms of the findings and reasons of the Special Adjudicator, it is plain that his decision was justified on grounds which did not simply depend on his recollection and assessment of the oral testimony of the applicant, or where by reason of the nature of the applicant's evidence, or other material before the adjudicator, its falsehood or absurdity were plain. Equally, as the IAT considered in this case, it may be clear that, making all proper assumptions in favour of the appellant, his case would nonetheless fail to satisfy the necessary requirements for asylum to be granted. Bearing in mind the almost infinite variety of circumstances which may be operative in any given case or claim for asylum, it is unlikely that resort to close comparisons between different applications and their outcomes will be useful when seeking to persuade the Tribunal or this court that the Tribunal has failed to apply its procedure in a consistent manner. In cases of delay of this kind, the matter is best approached from the starting point that, where important issues of credibility arise, a delay of over three months between hearing and determination will merit remittance for re-hearing unless, by reason of particular circumstances, it is clear that the eventual outcome of the application, whether by the same or a different route, must be the same."
"Another factor which usually figures prominently in a court's consideration of the effect of delay upon the safety of a lower court's or tribunal's decision is that there were issues of credibility for the court or tribunal to consider; and that, in the long passage of time until preparation of the decision, the court's or the tribunal's memory of the often subtle features relevant to an assessment of credibility may well have dimmed."
"The currency in which this court deals is that of reason; and, if a case is to prevail, [counsel for the appellant] must tender reasoned arguments why the determination is unsafe. She is not appealing against the delay. She is appealing against the decision; and, if she can, she must, in some rational way, present the delay as a source of infection of the decision."
The appeal was dismissed, as the appellant had failed to show "any nexus between the delay and the safety of the decision" (para 23).
"To establish that a delay in the promulgation of a decision has led to an error of law it has to be shown that the decision was not safe and therefore unlawful. There must be a nexus between the delay and the safety of the decision…"
"The Tribunal will send the notice of the decision and statement of reasons to the parties as soon as practicable. A period of 14 days … for preparing the statement of reasons should be adequate and judges are expected to have their decisions and statements of reasons completed within this period. Having regard to the overriding objective judges should recognise that delay in preparing a decision and written statement of reasons may be incompatible with rule 2(1)(e)."
Rule 2(1)(e) of The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, referred to in the Presidential Guidance Note, states that the overriding objective of dealing with cases fairly and justly includes "avoiding delay, so far as compatible with proper consideration of the issues".
The correct approach to delay
"In cases of delay of this kind, the matter is best approached from the starting point that, where important issues of credibility arise, a delay of over three months between hearing and determination will merit remittance for re-hearing unless, by reason of particular circumstances, it is clear that the eventual outcome of the application, whether by the same or a different route, must be the same."
"In the days of the Immigration Appeal Tribunal (before 2004) there were observations in that Tribunal that a delay of three months might or perhaps would merit remittal. The context of those observations was a jurisdiction in which remittal for rehearing was readily directed, often with the consent of the Home Office. Much has changed since then, including the abolition of the Immigration Appeal Tribunal and its replacement by the Asylum and Immigration Tribunal, in part specifically in order to reduce the number of remittals. The AIT was in 2010 replaced by the Upper Tribunal (Immigration and Asylum Chamber), a superior court of record, with procedure rules that apply across the whole, multi-jurisdiction Upper Tribunal."
The delay in this case
Demeanour
"witnesses ... may have in their demeanour, in their manner, in their hesitation, in the nuance of their expressions, in even the turns of the eyelid, left an impression upon the man who saw and heard them which can never be reproduced in the printed page."
"... not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case."
"I question whether the respect given to our findings of fact based on the demeanour of the witnesses is always deserved. I doubt my own ability, and sometimes that of other judges, to discern from a witness's demeanour, or the tone of his voice, whether he is telling the truth. He speaks hesitantly. Is that the mark of a cautious man, whose statements are for that reason to be respected, or is he taking time to fabricate? Is the emphatic witness putting on an act to deceive me, or is he speaking from the fullness of his heart, knowing that he is right? Is he likely to be more truthful if he looks me straight in the face than if he casts his eyes on the ground perhaps from shyness or a natural timidity? For my part I rely on these considerations as little as I can help."
"Discretion" (1973) 9 Irish Jurist (New Series) 1, 10, quoted in Devlin, The Judge (1979) p63 and Bingham, "The Judge as Juror: The Judicial Determination of Factual Issues" (1985) 38 Current Legal Problems 1 (reprinted in Bingham, The Business of Judging p9).
"If a Turk shows signs of anger when accused of lying, is that to be interpreted as the bluster of a man caught out in deceit or the reaction of an honest man to an insult? If a Greek, similarly challenged, becomes rhetorical and voluble and offers to swear the truth of what he has said on the lives of his children, what (if any) significance should be attached to that? If a Japanese witness, accused of forging a document, becomes sullen, resentful and hostile, does this suggest that he has done so or that he has not? I can only ask these questions. I cannot answer them. And if the answer is given that it all depends on the impression made by the particular witness in the particular case that is in my view no answer. The enigma usually remains. To rely on demeanour is in most cases to attach importance to deviations from a norm when there is in truth no norm." (emphasis added)
See Bingham, "The Judge as Juror: The Judicial Determination of Factual Issues" (1985) 38 Current Legal Problems 1 (reprinted in Bingham, The Business of Judging at p11).
"Psychologists and other students of human communication have investigated many aspects of deceptive behavior and its detection. As part of this investigation, they have attempted to determine experimentally whether ordinary people can effectively use nonverbal indicia to determine whether another person is lying. In effect, social scientists have tested the legal premise concerning demeanor as a scientific hypothesis. With impressive consistency, the experimental results indicate that this legal premise is erroneous. According to the empirical evidence, ordinary people cannot make effective use of demeanor in deciding whether to believe a witness. On the contrary, there is some evidence that the observation of demeanor diminishes rather than enhances the accuracy of credibility judgments."
OG Wellborn, "Demeanor" (1991) 76 Cornell LR 1075. See further Law Commission Report No 245 (1997) "Evidence in Criminal Proceedings", paras 3.9–3.12. While the studies mentioned involved ordinary people, there is no reason to suppose that judges have any extraordinary power of perception which other people lack in this respect.
"When [the appellant] gave evidence before me, some of his answers were inconsistent and variable but there was no suggestion that he could not remember things."
This suggests that the way in which the appellant answered questions did not create a favourable impression. Quite rightly, however, the FTT judge did not attach weight to that impression in assessing the credibility of the appellant's account. Instead, he focussed on whether the facts alleged by the appellant were plausible, consistent with objectively verifiable information and consistent with what the appellant had said on other occasions (in particular, at his asylum interview and in recounting his history to the medical experts). Applying those standards, the FTT judge found numerous significant inconsistencies and improbable features in the appellant's account which he set out in detail in the determination. As the FTT judge explained, it was "the cumulative effect of the implausible and inconsistent evidence" given by the appellant which led him to conclude that the core of the appellant's account was not credible.
Conclusion
Sir Colin Rimer:
Lewison LJ: