Tribunal decisions

The decision

IAC-FH-AR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00350/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7 November 2016
On 23 November 2016

Before

DR H H STOREY
JUDGE OF THE UPPER TRIBUNAL

Between

S S
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr J Martin of Counsel instructed by Nag Law Solicitors
For the Respondent: Ms A Brocklesby-Weller, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant, a national of Sri Lanka, has permission to challenge a decision of First-tier Tribunal (FtT) Judge Dineen sent on 9 September 2016 dismissing his appeal against a decision by the respondent on 15 June 2015 refusing to grant him asylum or humanitarian protection.
2. The principal ground relied on concerns the delay in promulgating this case. Judge Dineen heard the case on 13 November 2015. By the time it was promulgated, on 9 September 2016, nearly nine months had elapsed. It is submitted that this delay makes the decision unsafe because the appeal was one that very much turned on credibility.
3. I consider this ground is made out. Judge Dineen sought to address the delay point at para 55:
"55. I have considered all the evidence and submissions presented in the appeal, both in the period of three months following the hearing and thereafter. I regret the time which has been taken in promulgating this decision, which has been due to the pressure of work and the listing of hearings in the Tribunal."
From the above I deduce that the judge was not seeking to rely on failings of the Tribunal administration in promulgating. His reference to "pressure of work" can only refer to his personal situation. Further the judge makes clear that his was not a case in which he had reached specific findings of fact within the three months. Rather his consideration of the evidence continued "in the period of three months following the hearing and thereafter" (italics added)
4. The judge's reference to three months signifies his awareness of established case law on delays in promulgation, in particular, the judgment given by Wilson, LT in RK (Algeria) [2007] EWCA Civ 868 at para 20:
"20. Miss Chan relies in particular upon a decision of this court, namely Sambasivan v Secretary of State for the Home Department (2000) Imm AR 85. In that case an asylum-seeker unsuccessfully appealed to this court on the primary basis that, instead of hearing his appeal substantively, the IAT should have remitted the matter for a fresh hearing by another adjudicator because the adjudicator had failed to promulgate his determination for four months after the hearing. It was my Lord, the President, then Potter LJ, who gave the only substantive judgment. The appellant pressed on this court the statement of the IAT in Mario (1998) Imm AR 281 at 287 to the effect 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 determination is more than 3 months."
In my judgment my Lord said, at [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 the 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 arises, 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."
5. In the Rule 24 response the respondent noted "the grounds do not establish a nexus between the delay and the safety of the decision". I beg to differ. The judge heard from the appellant in November 2015. On his own accord he was still considering what findings to make on his evidence outside the period of three months. Among the reasons given for rejecting the appellant's credibility were concerns about his handling of questions put to him. In the asylum interview and in this context it would have been important to know how the judge regarded the appellant's performance as a witness before him; yet the judge says nothing about this. The period in excess of three months is really twice as long of the rule of thumb benchmark of 3 months; that adds to my concern as to the transparency of the judge's deliberations and their safety.
6. Had it not been for the excessive delay, I would not have found an error of law on the basis of the other grounds on their own, although I do not accept that they identify certain other shortcomings in the judge's assessment.
7. I do not consider that the judge was entitled to discount completely the evidence set out in the report from South West London and St George's NHS Trust dated 29 May 2014 stating that the appellant suffered from PTSD, just because it was not in the form of a report from a "qualified practitioner". Whilst he may have been entitled to consider that the appellant's sur place activities would not place him at risk in the eyes of the Sri Lankan authorities, it does not appear that he took account of their entirety: he refers at para 78 to the letter from the National Liberal Party and the "photographic evidence" without making clear that he understood the evidence before him to include internet articles showing the appellant at a ceremony where the LTTE flags are on display and the deaths of LTTE members are commemorated.
8. These shortcomings, whilst not enough on their own to identify a material error of law, add a backdrop to my principal concern that the judge has made his key findings on the case too long after he heard the appellant's oral evidence.
9. For the above reasons I consider that the judge materially erred in law and that his decision should be set aside.
10. In light of my above analysis I have decided that the case should be remitted to the First-tier Tribunal.
Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date

Dr H H Storey
Judge of the Upper Tribunal