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Delay in Immigration Tribunal Decision-Making

Delay is a common concept in the context of decision making by UK Visas & Immigration.  In SS (Sri Lanka) [2018] EWCA Civ 139, the Court of Appeal recently considered delay in the promulgation of judgments/determinations in the Immigration Tribunal.

Lord Justice Leggatt summarised the question raised in the appeal as follows:

“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”, per Legatt LJ, paragraph 1.

Factual Background

The appellant in this case was a Sri Lankan national who entered the UK illegally.  His claim was based on his the fact he had been forced to join the militant Tamil group known as the LTTE. The appellant escaped.  He and his family were then captured by the Sri Lankan army and taken to a displacement camp. They were released in May 2011. In May 2013, the appellant was arrested and detained for a month.  He was released when his brother paid a bribe. He had confessed to being a member of the LTTE. After his release the CID came looking for him, but he had been taken to Colombo and subsequently left the UK using a false passport.  

On 25 April 2014 the appellant’s claim for asylum was rejected by the Secretary of State, his credibility being the central issue.  

The Appeal To The First-tier Immigration Tribunal

The appellant appealed and his appeal came before FTT Judge Hamilton on  23 December 2014. The appellant was represented at the hearing and gave oral evidence. The decision and statement of reasons of the FTT is dated 23 April 2015, which was 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.  The FTT judge said this wasdue to an administrative error on my part, whereby I believed I had sent it off for promulgation when in fact I had not.”  The Judge’s reasons ran to 97 paragraphs.

The Appeal To The Upper Tribunal

The appellant was granted permission to appeal to the Upper Tribunal (Immigration and Asylum Chamber).  It was deemed 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. The Upper Tribunal Judge considered there had been detailed consideration and noted that the FTT judge had kept a typed record of the proceedings.  The adverse credibility findings were not based on the appellant’s demeanour or oral evidence given at the hearing, which could have been misremembered, but rather on discrepancies and difficulties arising from documentary evidence. The Upper Tribunal judge concluded that, “whilst the delay is regrettable, it does not give rise to any material error of law.

The Appeal To The Court Of Appeal

Permission was granted by the Court of Appeal, at an oral hearing on 17 May 2017. It was argued before 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 would render  the determination unsafe.

The respondent disputed  the existence of the unwritten rule:  “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”, paragraph 9.

The Court analysed case law relating to delay.  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 Court found that 14 days represents good practice” but not a ground for seeking rehearing.

Despite the arguments the Court reviewed the guidance given in an earlier case of Sambasivam.  The decision confirms that it cannot be inferred from the fact of excessive delay, where credibility is an issue, that the decision is always unsafe.  “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,” per Potter LJ.

The Court concluded: “There is no justification for applying a different or special approach on appeals to the Upper Tribunal (Immigration and Asylum Chamber) from the approach which is generally applicable in cases of delay in giving a decision. Nor does the fact that the appellant’s credibility was in issue justify applying a different test – though it may of course, depending on the circumstances, be an important factor in applying the test”, paragraph 28.   The Court further concluded In the present case the grounds of appeal do not identify any particular respect in which the delay of four months between the hearing and the date of decision, regrettable as it was, has potentially resulted in error”, paragraph 30.

A further argument was raised in respect of the failure to the Judge to record the demeanour of the appellant, this had not be raised previously in the Upper Tribunal.  

At paragraph 41 the Court confirmed in “One of the most important qualities expected of a judge is that they will strive to avoid being influenced by personal biases and prejudices in their decision-making. That requires eschewing judgments based on the appearance of a witness or on their tone, manner or other aspects of their behaviour in answering questions”.

The Court concluded, in this case:  “Accordingly, even if the appellant had through his demeanour when answering questions given the FTT judge the impression that he looked and sounded believable, the suggestion that the FTT judge should have given significant weight to that impression, let alone that he could properly have treated it as compensating for the many inconsistencies and improbabilities in the content of the appellant’s account, cannot be accepted”, paragraph 43.

This is an interesting case that reminds us of the overriding objective of fairness in the system and dangers of placing too much emphasis on the demeanour of an individual.

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