Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/08465/2015

THE IMMIGRATION ACTS

Heard at Birmingham Employment Centre
Decision Promulgated
On 29 November 2016
On 7 December 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE McCARTHY

Between

Dawda [J]
(no anonymity order)
Appellant
and

SECRETARY OF STATE FOR the HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr M Bradshaw, instructed by Ison Harrison Ltd
For the Respondent: Mr I Richards, Senior Home Office Presenting Officer

DECISION AND REASONS

1. On 3 May 2016, Upper Tribunal Judge Plimmer granted the appellant permission to appeal against the decision and reasons statement of First-tier Tribunal Judge Raymond that was issued on 22 March 2016.
2. Judge Raymond decided the appellant was not a refugee from Gambia or otherwise in need of international protection. Judge Raymond also concluded the appellant did not benefit from the article 8 of the human rights convention.
3. Permission to appeal was granted on two interrelated bases. The appellant challenged the judge's credibility findings because they were made more than three months after the hearing (which took place on 19 November 2015) and because they did not demonstrate the judge had engaged in a meaningful way with the evidence and arguments relating to the appellant's sexual orientation.
4. Mr Bradshaw and Mr Richards discussed the Court of Appeal's judgment SSHD v RK (Algeria) [2007] EWCA Civ 868. The following points were agreed.
5. At [18] the Court reminds us of some general principles.
18. 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. ?
6. The Court approved the rule of thumb used by the predecessor of the Upper Tribunal that usually a three-month "delay between hearing and preparation of the determination will render 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." (cf [16] of Sambasiyam v SSHD [2000] Imm AR 281, cited at [20] of RK (Algeria)).
7. Of course, delay is not of itself evidence of legal error. Delay may result for a wide range of reasons. Where the delay does not affect the assessment of credibility, then delay is unlikely to be relevant. Even where credibility has to be assessed, it may be that a decision has been made in good time but delay has arisen for administrative reasons. Again, such delay is unlikely to be relevant.
8. The issue in this appeal, therefore, is whether the delay is relevant to the soundness of the credibility assessment undertaken by Judge Raymond.
9. It is evident from the end of the decision and reasons statement that Judge Raymond completed his decision on 20 March 2016. This is supported by the appeal file, which I have examined for myself. I can find no evidence on file that the judge made a finding relevant to the appellant's credibility within a reasonable period of time and I must find that Judge Raymond only made his decision on 20 March 2016. It follows that the Tribunal's administration took merely two days to promulgate the decision and this was not the reason for the delay. The delay between the hearing and the assessment of credibility was four months.
10. In her grant of permission, Judge Plimmer makes a number of observations about the poor quality of Judge Raymond's decision, the most pertinent of which reads, "The summary of the evidence (preceding the second called 'reasons') is littered with comments adverse to the appellant, and is repetitive and confusing." I agree.
11. Having reviewed the decision and reasons statement and having considered the competing arguments, I have decided that there are serious concerns that the delay in the decision-making process undertaken by Judge Raymond has affected the soundness of his decision.
12. There is a strong possibility that the passage of time meant Judge Raymond was no longer aware of subtleties in the evidence given by the appellant or the arguments made by counsel on his behalf. For example, there are a number of issues in the skeleton argument, that was provided to Judge Raymond by counsel for the appellant, which are simply not addressed in the decision and reasons statement. Those arguments relate to the assessment of the appellant's sexual orientation and were therefore of significant importance to the appellant's case. It would appear they have been overlooked.
13. As I announced at the end of the hearing, this is not a decision and reasons statement that can survive. I set it aside for the reasons I have given and order that the appeal is remitted to the First-tier Tribunal for a fresh hearing. Nothing is preserved from the decision and reasons statement of Judge Raymond.

Decision
The decision and reasons statement of Judge Raymond contains an error on a point of law and is set aside.
The appeal is remitted to the First-tier Tribunal for a fresh decision. No findings are preserved.

Signed Date
Judge McCarthy
Deputy Judge of the Upper Tribunal 7 December 2016