The decision

SK (guidance on application of Devaseelan) Serbia & Montenegro [2004] UKIAT 00282


Date of Hearing: 20 September 2004
Date Signed: 200
Date Determination Notified: 05 October 2004


Mrs J A J C Gleeson (Vice President)
Mr P D Burns
Dr J O de Barros



Secretary of State for the Home Department


For the appellant: Ms A Jones, of Counsel, instructed by
Bhogal Lal, Solicitors
For the respondent: Mr G Phillips, Home Office Presenting Officer

1. Devaseelan does not purport to deal with decisions relating to the family member although increasingly it is misunderstood by Adjudicators as doing so. It deals only with the situation where a human rights claim is made by someone whose asylum appeal has already failed and a credibility and factual matrix been found by the first Adjudicator.

“39. In our view the second Adjudicator should treat matters in the following way.

(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 was made. In principle 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.

40. We now pass to matters that could have been before the first Adjudicator but were not.

(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 close 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 addiction 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.

41. The final major category of case is where the appellant claims that his removal would breach Article 3 for the same reason that he claimed to be a refugee.

(6) If before the second Adjudicator the appellant relies on facts are not materially different from those put to the first Adjudicator, and proposes to support the claim is in essence the same evidence as that available to the appellant at that tine, 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 determination. 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 to have made his choices about hot it would 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.”

2. Accordingly, the Adjudicator misdirected herself and that misdirection runs so deeply through the determination that the Tribunal is unable to find a usual core of facts to which could apply the present law and country situation.

3. There is therefore no alternative but to allow this appeal and remit it for hearing afresh.

4. The appeal is accordingly allowed and we direct that it be remitted for hearing afresh by an Adjudicator other than Miss Avril Harrison.

Mrs J A J C Gleeson
Vice President

25 July 2013