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England and Wales Court of Appeal (Civil Division) Decisions
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Cite as:  EWCA Civ 868
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
(HHJ RISIUS; VICE-PRESIDENT)
AIT NO CC/06172/2002
B e f o r e :
(Sir Mark Potter)
LORD JUSTICE SEDLEY
LORD JUSTICE WILSON
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Ms Amanda Weston (instructed by Paragon Law) appeared on behalf of the Respondent
Crown Copyright ©
"The long delay between the hearing and the promulgation of the determination without further consideration of the changed objective evidence render the grounds properly arguable."
Underneath his signature was an endorsement by the Deputy President of the AIT, Mr Ockelton, dated 11 October 2006. He wrote:
"This is a case in which, had I still the power to do so, I should have consulted the parties with a view to setting aside the determination under appeal and ordering a rehearing."
"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 determination is more than 3 months."
In his judgment my Lord said, at :
"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."
Later my Lord continued:
"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 his judgment my Lord went on to explain that there were particular circumstances in the case before the court which militated against application of the rule of thumb, namely that the Tribunal had allowed for the substance of the appellant's complaint about the delay by stating that it would proceed to determine the appeal on the basis that, save in one respect which my Lord considered to have been rationally excepted, the appellant's account of past events was true.