Subesh & Ors v Secretary Of State For Home Department

This is the judgment of the Court. These conjoined appeals are brought against four decisions of the Immigration Appeal Tribunal (“the IAT”). In each case the IAT allowed an appeal of the Secretary of State against an earlier determination by the Adjudicator allowing an appeal against the Secretary of State’s decision rejecting the appellant’s asylum and/or human rights claims and consequently refusing him leave to enter or remain in the United Kingdom. Each appellant is a Tamil asylum-seeker from Sri Lanka.

In Nagulananthan (we hope it will be thought no discourtesy if we refer to him as “N”) permission to appeal to this court was granted by Brooke and Clarke LJJ on 9 September 2003 after earlier refusal by Sedley LJ on consideration of the papers. In Subesh permission was granted by Sedley LJ on 15 August 2003. In Suthan permission was first refused on the papers by Carnwath LJ but granted by Scott Baker LJ after a hearing on 14 November 2003. In Vanniysingam (whose name we shall also abbreviate, to “V”) permission to appeal to this court was granted on 29 October 2003 by HHJ Holden who had presided over the IAT in that case. The appeals were listed together as an appropriate means for the court to resolve what were perceived to be two distinct but related important points of principle concerning the jurisdiction and functions of the appellate authorities, that is to say the Adjudicators and the IAT, arising under provisions contained in the Immigration and Asylum Act 1999 (“the 1999 Act”). The first of these may be formulated by this question: what if any are the constraints or restrictions upon the power or duty of the IAT to overturn conclusions of fact arrived at by the Adjudicator? The second concerned the proper response of Adjudicators to the decision of the IAT in Jeyachandran [2002] UKIAT 01689, in which it was stated (paragraph 8):

We should also record the fact, well-known though it is, that by virtue of s101 of the Nationality, Immigration and Asylum Act 2002 appeals to the IAT from adjudications promulgated since June 2003 will be confined to points of law; and that the government proposes to seek further legislation in Parliament which, if enacted and effective, will work far-reaching changes to the way in which decisions of the Secretary of State in immigration matters may be tested by an independent judicial body. The issues arising in these appeals may therefore become historic. Presently, however, they are not without some public importance.

The background to all these cases, and (as is well known) to very many others also, has been the internecine struggle between Tamils and Sinhalese in Sri Lanka, and in particular between the LTTE (the “Tamil Tigers”) and the Sri Lankan authorities; and the efficacy of the peace process which has evolved in that country since January 2000. Before summarising the facts in the individual appeals it is useful to canvass this aspect of the background position, at any rate as it appeared to the IAT in June 2002. We may conveniently do so by reference to the case of Jeyachandran itself, in which the IAT heard argument on 21 May 2002 and promulgated its decision, given by the then President, Collins J, on 10 June 2002. We must include some passages in which the IAT deal with the facts of the particular case, for these will be material when we come to the point of principle engaging Jeyachandran.

The appellant in Jeyachandran was a Tamil who, as the Chief Adjudicator had found, was on a wanted list. The IAT considered (paragraph 3) that he was

Here we will outline the circumstances of each of the four appellants. The facts as we shall state them were, as we understand the determinations, those accepted by the Adjudicators, applying the appropriate standard of proof. It will be necessary to say more about the treatment of each case by the Adjudicator and the IAT respectively when we come to apply our conclusions on the legal issues to the individual appeals.

V was born on 28 March 1978. In 1996 the family moved to the Vanni region which was controlled by the LTTE. V was obliged to assist the LTTE by digging bunkers, collecting food parcels and looking after wounded LTTE fighters. He was given some training and from time to time acted as a border guard. He was subjected to pressure to become a full-time member of the LTTE. Rather than be forcibly recruited he determined to make his way to Colombo, and stay with an uncle there. On 31 July 2001 he set out with a friend whom he had paid to assist him. On 1 August 2001 they were arrested by the Sri Lankan army as they approached Vavuniya. He and his friend were separated. For the first three weeks he was tortured and interrogated about LTTE connections. The Adjudicator (paragraph 9.3) thought this to be “a routine rather than targeted interrogation”. At length, after about two-and-a-half months in relatively lax conditions, he escaped. With the assistance of a Tamil who sheltered him and phoned his uncle, on 24 October 2001 he was smuggled into Colombo in a rice lorry. On 30 October following arrangements made by his uncle and with a passport provided by an agent he got to the airport. He boarded a flight to somewhere in Africa. Thereafter he made his way over land and sea to the United Kingdom where he arrived, we think, in December 2001.

V’s claim for asylum was rejected by letter dated 30 January 2002, in which the Secretary of State also considered whether he should be allowed to remain having regard to Articles 2 and 3 of the European Convention on Human Rights (“ECHR”) but decided that he should not. His appeal was allowed by the Adjudicator on asylum grounds and also under ECHR Article 3 by a determination promulgated on 18 September 2002. The IAT’s decision granting the Secretary of State leave to appeal was promulgated on 13 January 2003, and the Secretary of State’s appeal was allowed by a determination notified on 4 August 2003.

Subesh was born on 21 June 1983. His father got involved with the LTTE and was arrested by the authorities. In consequence Subesh was detained and ill-treated by the Sri Lankan army. This was in 1996 when he was 13. He was questioned about his father. He denied his father was involved with the LTTE. He was beaten, locked up, beaten again with sticks, burnt with lit cigarettes, hung upside down with his head lowered into a well, and beaten again. He lost consciousness. The next day he was beaten again, this time with poles wrapped in barbed wire, and was burnt on the feet and legs. After this he succeeded in escaping through a lavatory window, scaled a wall and ran to his home. His mother arranged for him to go by boat to Vanni, a region which as we have said was controlled by the LTTE. After about four years he was compelled to undergo military training for the LTTE in a jungle location. There was physical training for five months to be followed by military weapons training. He managed to escape through the jungle. With another’s help he reached Vavuniya. But he was stopped by a group from PLOTE, which was a pro-government paramilitary organisation. He was detained on suspicion of involvement with the LTTE and assaulted during questioning. He was released on payment of a bribe by his mother, who arranged and paid for his journey to the UK, where he arrived on 9 February 2002 and applied for asylum.

There are scars on his body, of which the largest and most visible is a scar on the top of the right foot which he said was caused in 1996 when he was beaten with poles wrapped in barbed wire and burnt.

His asylum claim was refused by letter dated 26 March 2002, in which (as in V) the Secretary of State also considered whether he should be allowed to remain on ECHR grounds but concluded that he should not. His appeal was allowed by the Adjudicator, both under the 1951 Refugee Convention and Article 3 ECHR, in a determination promulgated on 23 September 2002. The Secretary of State obtained leave to appeal on 20 January 2003, and his appeal was allowed by the IAT in a determination notified on 16 April 2003.

Suthan’s date of birth was given as 30 July 1980. He joined the LTTE in April 1997 and after combat training became a full fighting member. He was put in charge of other men and was involved in battles against the Sri Lankan armed forces. After one of these, at Chavakachcheri, he was severely criticised by his superiors and became embittered and disillusioned with the LTTE. His resignation was at length accepted, though with very ill grace: he had to carry out “punishment” duties before being allowed to leave. Thereafter he found that ex-members were being required to rejoin. So he went to live with his uncle in Mannar, which was an army controlled area. On 22 August 2001 he was arrested by Sri Lankan armed forces and taken to what was called the Fort Camp where he was questioned and ill-treated. At length he was taken along the coast to the army base at Thallady. There he was interrogated and tortured. On 26 September 2001 he escaped from a vehicle in which he was being carried. With his uncle’s assistance he was able to leave Sri Lanka from Colombo and arrived in the UK on 31 October 2001.

Suthan bears significant scars to his right knee, leg and lower back.

In Suthan’s case the Secretary of State refused his asylum claim (and made an adverse decision on Article 3 ECHR) on 30 July 2002. His appeal was allowed by the Adjudicator under both heads in a determination promulgated on 18 July 2002. The IAT allowed the Secretary of State’s appeal (leave having been granted on 26 September 2002) on 7 March 2003.

N, born in 1970, grew up in an area controlled by the LTTE. He was continually pressed to join their forces and fight with them. He always refused to do so. His father had been killed in 1996, and at length he and his mother applied to the LTTE for a pass to leave the controlled area. That was refused because he had never fought with the LTTE. To get away from them, he succeeded in arranging a clandestine departure for his mother and himself to an army controlled area. In June 2000 he was on a bus in Vavuniya when it was searched by soldiers. He was arrested on suspicion of involvement with the LTTE. He was detained at an army camp for two months and tortured. Thereafter he was held in Anuradhaphra prison for a further six months. He was released on payment of a bribe by his uncle and escaped from Sri Lanka in February 2001. He arrived (concealed in a lorry) in the UK on 14 March 2001 and claimed asylum the same day.

N has various scars, most of which would be covered by clothing.

In this case the Secretary of State’s refusal letter was dated 19 June 2001. N’s appeal was first determined by an Adjudicator on 7 December 2001 and was dismissed on both asylum and human rights grounds. He was granted leave to appeal, and by a determination notified on 24 June 2002 his appeal was allowed by the IAT because the Adjudicator had failed to have regard to material evidence. The IAT ordered that the appeal be re-heard by a different Adjudicator. By his decision of 1 October 2002 the second Adjudicator allowed N’s appeal on both asylum and human rights grounds. Again, the Secretary of State obtained leave to appeal and a second Tribunal allowed his appeal by its determination notified on 22 April 2003.

Miss Jegarajah, representing Subesh, Suthan and N, submitted that the IAT may not overturn an Adjudicator’s determination on the facts unless they are entitled to hold that it was “plainly wrong or unsustainable” or that the Adjudicator’s conclusions “exceeded the generous ambit within which a reasonable disagreement is possible”. She says that neither of these tests is met by the IAT determinations in her clients’ cases, and the determinations must accordingly be set aside.

For the first of these two formulations Miss Jegarajah placed much reliance on the judgment of Schiemann LJ as he then was in Oleed [2003] IAR 499. For the second she pointed to the judgment of Brooke LJ in Tanfern Ltd [2000] 1 WLR 1311. Against this background she also addressed the statements of Hale LJ as she then was in Indrakumar [2003] EWCA Civ 1677 (paragraph 13(2)) that the IAT can only interfere “if there has been an error” on the part of the Adjudicator and (paragraph 14) that the IAT would not be justified in differing from the Adjudicator merely because they disagreed with him. At first Miss Jegarajah was disposed to submit that this approach was “not enough”. On reconsideration, however, she sought to rely on what Hale LJ had said. Although we did not understand Miss Jegarajah to abandon her primary position based on Oleed and Tanfern, it became increasingly apparent as the argument developed that at the core of these appeals there lay a question prompted by Hale LJ’s observations: what is the difference between a “mere disagreement” with the Adjudicator on the part of the IAT and a finding of error on the part of the Adjudicator? We will address this question in due course.

Miss Crimmins for V supported Miss Jegarajah but had certain distinct submissions to make on Jeyachandran.

The IAT is of course a creature of statute. The statutory provisions in main legislation relevant to these appeals are contained in Schedule 4 to the 1999 Act. Whatever view is taken of the primary issue, the measure which confers the IAT’s jurisdiction is plainly important. Paragraph 22 of Schedule 4 provides:

In the course of argument reference was also made to certain provisions contained in the Immigration and Asylum Appeals (Procedure) Rules 2000. We need only cite part of Rule 18(4):

It is useful to see the basis on which the IAT granted leave to appeal to the Secretary of State in these cases. In V the IAT said: “It is arguable that the applicant is not an exceptional case as it was considered in Jeyachandran… he would have to be in order to make his claim out”. In Subesh: “The grounds argue that the Adjudicator erred in his assessment of the risk on return and failed to give adequate reasons for his findings. In our view the grounds do raise issues which merit further consideration by the Tribunal”. In Suthan: “The grounds, which allege inter alia that the adjudicator made no clear finding as to whether the applicant is wanted by the authorities, disclose a case with arguable prospects of success”. And lastly in N: “The Adjudicator’s findings as to safety on return are arguably unsafe having regard to the latest country background information. He appears to have misunderstood what the Tribunal was saying in Jeyachandran…”

Against this background Miss Jegarajah and Miss Crimmins submitted that in each of their clients’ cases the IAT had allowed the Secretary of State’s appeal on the basis of nothing more than a “mere disagreement” with the Adjudicator, and that was illegitimate. More particularly – and here we express the argument in our own words, we hope with no injustice to the appellants – in each case the Adjudicator’s decision contains no demonstrable error of law; the conclusion arrived at was reasonably available on the evidence, and cannot be faulted on Oleed or Tanfern grounds; it follows that the IAT had no business to interfere. We shall of course have to deal with the individual IAT determinations. But it is convenient first to address the primary issue in principle, and then to consider these particular cases in light of our conclusions upon it.

Miss Jegarajah’s argument may be said to question the reach of the IAT’s jurisdiction, so that if it is right the IAT simply lacks the power to overturn the Adjudicator on fact absent an error by him of the kind which she urged had to be found. On that footing, the argument’s correctness depends upon the proper construction of paragraph 22 of Schedule 4 to the 1999 Act, which we have set out. The provision is a perfectly simple one. On its face it confers an unqualified right of appeal to the IAT, that is a right of appeal not limited by reference to issues of any particular kind such as matters of law only (in contrast to the right of appeal to this court created by paragraph 23(1)). Thus the jurisdiction given to the IAT is, very obviously, a jurisdiction to hear and decide such unqualified or unlimited appeals.

If the argument is not a jurisdictional one in this strict sense, so as to depend upon the proper construction of paragraph 22 of Schedule 4 to the 1999 Act, it must nonetheless identify an error of law by the IAT if this court is itself to possess the jurisdiction to entertain it under paragraph 23. It might for example be said that no reasonable appellate tribunal would fail to observe the self-denying ordinances touching the scope of its function which Miss Jegarajah’s argument prescribes. However the matter is put, one might be forgiven for supposing that there is very little space for any complex or elusive questions as to the scope of the IAT’s function. Yet Miss Jegarajah has been able to assemble and deploy a substantial body of case-law in which the courts have – we mean no disrespect – chewed over the proper reach of the IAT’s role. We have been troubled by this panoply of cases. Their very quantity to our minds suggests that something has gone wrong, or been left unclear, relating to the extent of the IAT’s jurisdiction.

Miss Jegarajah’s argument starts with Montgomerie [1904] AC 73, and proceeds via Edwards v Bairstow [1956] AC 14 to a clutch of a dozen or more cases decided from 1985 onwards. All of these decisions arose in the immigration context except for Montgomerie, Edwards, and Tanfern. We do not with respect propose to trawl through all of them. Tanfern and Oleed are of course important, being the direct sources of Miss Jegarajah’s core submission that the IAT may only overturn the Adjudicator on the facts on the footing that his conclusions were “plainly wrong or unsustainable” or outwith “the generous ambit within which a reasonable disagreement is possible”. And we must certainly consider Indrakumar.

But it is convenient first to turn to the decision of their Lordships’ House in Montgomerie, which may be seen as the starting-point for any discussion of the limits of the appeal process and has been referred to in some of the later cases, including Indrakumar. The appeal was from the First Division of the Court of Session, where it had been held (upholding the Lord Ordinary) that a right of recreation by “immemorial user” – which meant, user for at least forty years – attached to a piece of land. The House reversed the decision below, primarily on the footing that forty years’ user had not been shown. That was of course a question of fact; hence there is some discussion in the speeches of the approach to be taken to their Lordships’ jurisdiction to overturn findings of fact. The opening paragraph of the speech of the Lord Chancellor, Lord Halsbury, is most commonly cited (p. 75):

Miss Jegarajah referred also, as we have said, to the decision of their Lordships’ House in Edwards v Bairstow, not least because it too was the subject of discussion in some of the immigration cases, notably Siggins [1985] IAR 14 (Nolan J as he then was) and Balendran [1998] IAR 162 (Jowitt J). But with deference we do not propose to take time with it. The reason is that the jurisdiction there in question was the statutory right of appeal to the High Court (by case stated) from a decision of the General Commissioners of Income Tax; and unlike the provision made by paragraph 22 of Schedule 4 to the 1999 Act, such an appeal was permitted to be taken on a point of law only. The two reasoned speeches, and notably that of Lord Radcliffe, were concerned with the circumstances in which an error of fact may fall to be treated as an error of law.

Whatever else may be said about these present appeals, it must be undoubted that they involve no such question. We do not understand the appellants to contest the proposition that paragraph 22 of Schedule 4 confers on the IAT a jurisdiction to hear appeals on fact. The question is what, if any, are the constraints which confine that jurisdiction’s exercise. Upon that question Edwards v Bairstow offers no assistance.

We will next consider Tanfern; all the other decisions are in the immigration context. In that case the court was first concerned with a question as to what was the correct appeal forum under the Civil Procedure Rules in circumstances which we need not describe. However at paragraphs 30 – 33 Brooke LJ discusses what is there referred to as “The appellate approach – the general rule”. The general rule referred to, arising under CPR 52.11, is that (paragraph 30) “every appeal will be limited to a review of the decision of the lower court”, so that an appeal will only be allowed where the decision of the lower court was wrong, or unjust because of a serious procedural or other irregularity in the proceedings below. Brooke LJ pointed out (paragraph 31) that this marked “a significant change in practice, in relation to what used to be called ‘interlocutory appeals’”, as regards which under the previous regime “there was a rehearing in the fullest sense of the word, and the judge exercised his/her discretion afresh”. Then at paragraph 32 the learned Lord Justice addresses the sense to be attributed to the epithet “wrong”, but does so only in the context of an appeal against the exercise of a discretion by the lower court. It was in that context that he referred to the speech of Lord Fraser of Tullybelton in G v G [1985] 1 WLR 647, where it was stated that the appellate court should only interfere “when they consider that the judge of first instance… has exceeded the generous ambit within which a reasonable disagreement is possible”.

We are clear that Tanfern offers no more assistance to Miss Jegarajah than does Edwards v Bairstow. There are two reasons. First, the passage in Brooke LJ’s judgment on which she relies is dealing with the bite of a particular provision of the CPR on the appeal process in the ordinary courts. Whatever the extent of the IAT’s duty in general terms to forward the overriding objective defined at the outset of the CPR, it is not confined by CPR 52.11, but must go by the 1999 Act and its own rules of procedure. Secondly, the IAT was not in these cases considering the exercise of a discretion by the Adjudicator, but rather the Adjudicator’s substantive findings of fact. Accordingly the reasoning of Lord Fraser in G v G is not, certainly not directly, in point in these appeals.

Of the immigration cases themselves, we will turn first to Oleed. An important feature of the factual issues in that case was the effect of a warrant said to have been issued against the appellant by the Sri Lankan authorities. The Adjudicator allowed the appellant’s appeal against the Secretary of State’s refusal of asylum. He considered that the warrant, whose authenticity he said was not disputed, “tip[ped] the balance in favour of the appellant”. The IAT allowed the Secretary of State’s appeal, holding that the Adjudicator’s conclusion was “unreasonable and perverse”. In this court Schiemann LJ held that the IAT’s reasoning was defective. He considered that it was unclear whether they had concluded that the warrant was not authentic, or that it was authentic but the Adjudicator had given it excessive weight. Schiemann LJ stated (paragraph 15): “The reasoning behind the Tribunal’s criticism of the adjudicator is… so flawed that this criticism cannot stand.” He proceeded to consider whether the IAT had been entitled to overturn the Adjudicator’s determination, and in paragraph 29 (the passage relied on by Miss Jegarajah) this is what he said:

It is, we think, not without interest that the majority in Oleed thought it right (see Schiemann LJ paragraph 32 and 34, and Aikens J paragraphs 61 and 62) not only to set aside the IAT’s determination but also substantively to dismiss the appeal from the Adjudicator, rather than send the matter back to be reheard by the IAT. Schiemann LJ held in terms (paragraph 32) that “there was nothing wrong with the adjudicator’s determination, there was therefore no reason to appeal it and it would be wrong for the Home Secretary, on the back of an appeal which has been dismissed, to seek to re-examine the threat to the refugee with reference to a date later than the adjudicator’s determination”. The case was thus a strong one for the appellant: the Adjudicator’s determination in his favour was perfectly sustainable and the IAT’s was not. We are inclined to think that the use of the formula “plainly wrong or unsustainable”, which was anyway the subject of common ground and thus not honed by argument, was unnecessary for the decision of the appeal.

Now we will turn to Indrakumar, in which Miss Jegarajah also appeared for the appellant. This case is of particular importance because the court in terms addressed the primary issue arising in these present appeals, and reviewed at some length the earlier authorities including Montgomerie and Oleed. Keene LJ had carried out a like exercise in Sabanathan [2003] EWCA Civ 1517 and had revisited the same area in Koci [2003] EWCA Civ 1507, and these decisions are in turn referred to by Hale LJ in Indrakumar. We should notice that in Koci Keene LJ reiterated the “plainly wrong or unsustainable” test as being applicable in the IAT, not only to findings by the Adjudicator which rest on his assessment of oral testimony, but also to his conclusions about in-country conditions.

We have already expressed our view that the sheer burden of cases in this area suggests that something has gone wrong, or been left unclear, relating to the extent of the IAT’s jurisdiction. More particularly, however, there is a plain question whether any such uncertainty has been resolved by Indrakumar, which ought thus to be seen as marking the end of the debate.

In that case, having reviewed the jurisprudence, Hale LJ proceeded thus:

There are findings of fact based on oral evidence and the assessment of credibility. These can only very rarely be overturned by an appellate Tribunal.

There are findings based on documentary evidence specific to the individual case. These can be more readily overturned because the appellate tribunal is in just as good a position to assess it. But even there there may be an important relationship between the assessment of the person involved and the assessment of those documents. If so, great caution once again will be required.

There are findings as to the general conditions or the backdrop in the country concerned which will be based on the objective country evidence. The [IAT] will be at least as well placed to assess this as is the adjudicator. Although in our law the notion of a factual precedent is, as Laws LJ termed it in S and Others v Secretary of State for the Home Department [2002] INLR 416 at paragraph 28, ‘exotic’, in this context he considered it to be ‘benign and practical’. There will be no public interest and no legitimate individual interest in multiple examinations of this backdrop at any particular time once that had been considered in detail and guidance is given by the [IAT].

There are findings as to the application of those general country conditions to the facts of the particular case. These will be an inference to be drawn by the adjudicator and then, if appropriate, by the [IAT]. The [IAT] will be entitled to draw its own inferences, just as is the appellate court under the CPR, once it has detected an error in the adjudicator’s approach.

We should next with respect notice the reference made to Indrakumar in the judgment of Latham LJ in this court in Vujnovic [2003] EWCA Civ 1316, decided as recently as 17 December 2003. At paragraph 11 he said:

The only other case to which we propose to refer is S and Others [2002] INLR 416, which was concerned with a determination of the IAT dealing with asylum claims made by Serbs from Croatia. The significance of the case for present purposes is that it addressed a particular feature of the IAT’s function which seems to us to be relevant to the reach of its power to overturn the Adjudicator: namely, the delivery of a determination which is intended, for the time being at least, to be authoritative as to fact. This was the subject of Hale LJ’s reference at paragraph 13(4)(iii) in Indrakumar. Giving the judgment of the court in S and Others, Laws LJ said this (paragraph 28):

There are two straightforward points that can be got out of the way. First, an appeal from the Adjudicator to the IAT under paragraph 22 to Schedule 4 of the 1999 Act is available on fact as well as law. So much is uncontentious. But it means that the IAT’s appreciation of factual issues is not limited to what might be called the Wednesbury (Footnote: ¹) question, that is, whether the Adjudicator’s conclusion on the material factual issue is perverse or flawed for breach of the requirement that only (but all) relevant considerations have to be taken into account. In fairness Miss Jegarajah did not suggest that this was the test for the IAT; although her reliance on Tanfern was not far distant from such a stance. And we are clear that Schiemann LJ in Oleed cannot be taken as indicating that anything like a Wednesbury approach is required to be adopted by the IAT in confronting an Adjudicator’s prior determination.

The second straightforward point concerns the difference between a finding which depends upon the Adjudicator’s assessment of oral testimony upon a disputed issue (for example: was the appellant detained and ill-treated as he claims?) and a finding which consists in an inference from proved or admitted primary facts. It is accepted on all hands, from Montgomerie onwards and perhaps before, that in the former class of case an appellate court which has not heard the material oral testimony must be slow to impose its own view. So much is commonplace. But this has nothing to with the reach of the appeal court’s jurisdiction. It merely recognises the pragmatic limitations to which the appeal court, not having heard the evidence, must be subject.

Those two points are the foothills. Now, it may also readily be accepted as a matter of principle (and we would certainly hold) that the appeal process is not merely a re-run second time around of the first instance trial. This is just as true where the appeal is open-ended (as it is under paragraph 22 of Schedule 22 to the 1999 Act), as when it is for example limited to points of law only or subject to other limitations or qualifications. But what is the nature of the constraint upon the appeal process which this proposition implies? It is not merely attributable to the circumstance that the first instance court has heard the witnesses, since its application is not confined to appeals on disputed issues of fact which the judge below has resolved by reference to oral testimony. Thus Lord Halsbury’s opening paragraph in Montgomerie is with respect of little assistance.

The constraint has been expressed, not least by Hale LJ in Indrakumar, as a requirement that the appeal court must identify an error on the part of the lower tribunal before it can interfere. However this notion of an error is more elusive than it appears. In the case of what we have called an open-ended appeal, it is plainly not confined to an error of law. Nor is it confined to an error of fact so gross as to engage the Wednesbury principle. How then does the finding by the appeal court of an error on the part of the lower tribunal differ from a “mere disagreement”? What in truth is meant here by “error”? These questions are, with respect, not answered in Indrakumar.

The answer is, we think, ultimately to be found in the reason why (as we have put it) the appeal process is not merely a re-run second time around of the first instance trial. It is because of the law’s acknowledgement of an important public interest, namely that of finality in litigation. The would-be appellant does not approach the appeal court as if there had been no first decision, as if, so to speak, he and his opponent were to meet on virgin territory. The first instance decision is taken to be correct until the contrary is shown. As Lord Davey put it in Montgomerie (in the passage we have cited), “[i]n every case the appellant assumes the burden of shewing that the judgment appealed from is wrong” (our emphasis). The burden so assumed is not the burden of proof normally carried by a claimant in first instance proceedings where there are factual disputes. An appellant, if he is to succeed, must persuade the appeal court or tribunal not merely that a different view of the facts from that taken below is reasonable and possible, but that there are objective grounds upon which the court ought to conclude that a different view is the right one. The divide between these positions is not caught by the supposed difference between a perceived error and a disagreement. In either case the appeal court disagrees with the court below, and, indeed, may express itself in such terms. The true distinction is between the case where the appeal court might prefer a different view (perhaps on marginal grounds) and one where it concludes that the process of reasoning, and the application of the relevant law, require it to adopt a different view. The burden which an appellant assumes is to show that the case falls within this latter category.

There are some ancillary points to be made. First, to categorise what we have described as the true distinction as merely being one between perceived error and disagreement not only offers no elucidation of the difference between these two ideas, but may be misleading in practice. Hale LJ’s statement (Indrakumar paragraph 13(4)(iv)) that “[t]he [IAT] will be entitled to draw its own inferences, just as is the appellate court under the CPR, once it has detected an error in the adjudicator’s approach” suggests a two-stage process for the IAT: first identify an error, then proceed to its own inferences. But, with respect, the “error” may consist precisely in the IAT’s conclusion that the inferences which it would draw are the right ones. There is no such two-stage process. Neither as a matter of jurisdiction given the terms of paragraph 22 of Schedule 4 to the 1999 Act, nor by reference to the general law, is the IAT required to look for an error by the Adjudicator as if that were an exercise hermetically sealed from its own appreciation of the merits of the case. Such an exercise, or something like it, is apt when an appeal court is asked to overturn a pure exercise of discretion by a lower court, as is shown by G v G (to which we have referred in paragraph 31) and many cases which have followed it. But different considerations are there in play.

Next, we should make it clear that nothing in this judgment is intended to undermine the utility of Hale LJ’s categorisation of four different types of evidential issue, set out in paragraph 13(4) of her judgment in Indrakumar. On the contrary, they shed light on the practical application in the asylum field of what we have ventured to formulate as the true question on appeals, namely whether there are objective grounds which persuade the court that it ought to conclude that a different view from that taken below is the right one. We would draw attention in particular to the third type of issue identified by Hale LJ at paragraph 13(4)(iii), dealing with findings made as to the general conditions or the backdrop in the country concerned. In this area the IAT may have particular reason to differ from the Adjudicator, if he has departed without solid justification from an earlier IAT ruling intended to be authoritative as to the situation for the time being in the country in question. Here, this court’s judgment in S and Others is in point, as is Latham LJ’s reference in Vujnovic (paragraph 19) to the IAT’s function of review of Adjudicators in order to secure a consistency of approach. We single out this category of case because it is, we think, special to the immigration jurisdiction, and in order to emphasise that the nature of the appeal process, as we have tried to describe it, can be seen to accommodate this “exotic” instance just as readily as more everyday instances of appeal issues.

More generally, in our opinion, once it is recognised that the true question is always whether the process of reasoning, and the application of the relevant law, tell the appeal court that it ought to adopt a different view from that taken below, three benefits flow. First, the principle of finality, the appellant’s burden (as Lord Davey put it) “of shewing that the judgment appealed from is wrong”, is uniformly preserved. Secondly, all proper scope is given to different kinds of case. Thus what it takes to overturn (say) an Adjudicator’s view of an appellant’s oral testimony is one thing. What it takes to overturn his view of in-country conditions where the IAT has recently given an authoritative ruling after an exhaustive review of the material may be quite another. Thirdly, the elusive, and in the end unhelpful, distinction between error and disagreement is given its quietus.

Lastly, we hope it is clear that what we have said is not put forward merely as an exercise in the construction of paragraph 22 of Schedule 4 to the 1999 Act. It owes such force as it possesses not to any statute, but to the general need to conform the nature of the appeal process with the principle of finality; this is a goal of the common law. It is what might nowadays be called a default position, defeasible in any particular case by statutory provision inconsistent with it. Thus an appeal to the Crown Court against a conviction in criminal proceedings in the magistrates’ court is treated in effect as a new first instance hearing. Evidence is called all over again; it may or may not be the same evidence as was called before the magistrates. There may be other such instances. That process is at variance with the nature of appeals as we have described it. But neither of these approaches undermines the other; the Crown Court instance merely shows the working of a particular statutory regime as it has been interpreted. Cases where statute prescribes a specially restricted right of appeal will equally involve a departure from the default position.

We hope also that the way we have put the matter will not itself be read like a statute so as to constitute a source of further litigation. The approach is a general one, having neither need nor scope for sophisticated refinement. It allows for an infinity of situations in particular appeals and of course is always subject (as we have just made clear) to the bite of any applicable statutory provision.

In our judgment appeals brought under paragraph 22 of Schedule 4 to the 1999 Act fall to be conducted consistently with the approach we have set out. We have every reason to suppose that in general they are so conducted. Nothing we have said is intended to assault the general practice of the IAT, including their practice of receiving oral evidence for themselves only exceptionally.

These are our conclusions on the primary issue.

Given what we have said so far, it is in our judgment clear that there is no separate Jeyachandran issue in these appeals. The IAT was obliged to proceed in each case by considering whether there were objective grounds upon which it ought to conclude that a different view from that taken by the Adjudicator was the right one. In Jeyachandran the IAT proposed, as it seems to us, to delineate for the time being, at least in broad terms, the general approach to be taken to Tamil asylum claimants from Sri Lanka, while emphasising that the situation remained fluid. That is the modest reach of its force as a “factual precedent”; but it is enough to show that it was a decision of the kind contemplated by Hale LJ in Indrakumar at paragraph 13(4)(iii) (and also, because of course it was necessary to relate that general approach to the appellant’s individual circumstances, 13(4)(iv)). It follows that the IAT was perfectly entitled to allow the Secretary of State’s appeal in any of these cases if it concluded that the Adjudicator had for no perceptible good reason failed to follow Jeyachandran. Not because the law required it to find an error before it might intervene; but because of the general principle relating to appeals as we have described it: in such a case there would be objective grounds to persuade the IAT to take a different view from that taken below. An Adjudicator might, of course, have every good reason to depart from Jeyachandran: if, for example, he were properly satisfied that in-country conditions had taken a turn for the worse. We should add that the bare fact that the Adjudicator makes no reference to Jeyachandran, as was the case in V’s and Suthan’s appeals, is not in isolation a basis for the IAT to interfere; though it must ring warning bells.

We turn to the individual cases in light of our conclusions on the primary issue. The question for this court is not whether the Adjudicator can be shown, to our satisfaction, to have perpetrated an identifiable error of some kind. The question is whether the IAT concluded on objective grounds that a different view from that taken by the Adjudicator was the right one, or (and we mean it to be the same thing) that reason and the law impelled them to take a different view from his; and if so, whether that conclusion is itself flawed by any legal error such as to generate a good appeal to this court under paragraph 23 of Schedule 4 to the 1999 Act.

As we have said the Adjudicator in V’s case did not refer to Jeyachandran. While of itself that establishes nothing, it is notable that the Adjudicator’s approach was actually at variance with Jeyachandran, in which the IAT’s determination had been notified three months before V’s appeal was heard by the Adjudicator. We need only set out paragraph 9.9 of the Adjudicator’s determination:

Clearly, the IAT’s decision is based on Jeyachandran as a starting-point, and then their perception of a continued improved state of affairs in Sri Lanka. Their conclusion was based on objective considerations which impelled them to take a different view from that taken by the Adjudicator. Their resolution of the appeal was entirely legitimate, not least given their implicit (and justified) finding that for no good reason the Adjudicator had proceeded on a view of the in-country situation at variance with the IAT’s findings in Jeyachandran.

The IAT’s decision in V’s case was properly arrived at given the general approach to appeals which we have described, and is not vitiated by any error of law.

In this case the Adjudicator undoubtedly took account of Jeyachandran. At paragraph 26 of his determination he stated: “The Tribunal determination of Jeyachandran shows that the current situation is that it will only be in exceptional cases where it is not safe to return people to Sri Lanka”. But he considered that Subesh was an exceptional case. He referred to Subesh’s connection with the LTTE through his father, his scars, his military training with the LTTE, and the incident with PLOTE.

The IAT concluded otherwise. They stated (paragraph 10):

The IAT concludes (paragraph 11) with the statement that “it was not open to the Adjudicator” to decide as he did. We doubt whether that is right; for all the reasons we have given, that was not the touchstone of the IAT’s proper power to allow the appeal. However this misdescription of the Adjudicator’s conclusion does not vitiate the IAT’s decision. Again, they have determined on objective grounds that a different view from that taken by the Adjudicator was the right one. They were entitled to do so.

Here too the Adjudicator made no reference to Jeyachandran. In fairness it is very likely (as the IAT was to acknowledge) that it had not come to her attention: she heard the appeal only 16 days after the Jeyachandran decision was notified, and promulgated it a month later. She referred however to the ceasefire, and some of the other post-2000 changes. Her conclusion is at paragraph 22:

The IAT took a different view. They stated:

Similar considerations apply in this case as in the others. However Miss Jegarajah has a particular point, to the effect that the last sentence we have set out from paragraph 8 (“We are not aware of any objective evidence…”) is in conflict with at least one piece of objective evidence, namely the last paragraph of a communication from the United Nations High Commissioner for Refugees “UNHCR”) to the Dutch authorities. The document is undated, but was sent with a fax letter from UNHCR to the Home Office on 13 May 2002 in which it was said to have been communicated to the Dutch authorities “earlier this year”. The last paragraph reads:

We conclude that in this case also the IAT’s decision was based on objective considerations which impelled them to take a different view from that taken by the Adjudicator, and is not flawed by any legal error.

The second Adjudicator in N’s case referred to Jeyachandran, but in terms which (with respect) give a frankly misleading impression of the overall basis of that decision. He said:

As for N’s particular facts, the Adjudicator opined (paragraph 13) that his detention in, and the means of his departure from Anuradhapura prison would be recorded, and he would be classified as an escaper; and his scars would “increase the suspicion of the authorities”. He concluded (paragraph 16) that “it cannot be said that there is no real possibility of adverse treatment by the authorities when checked at the airport or later in Colombo or anywhere else in Sri Lanka”.

Before the IAT reliance was placed on behalf of the Secretary of State on the decision in Brinston UKIAT 01547 (which was also commended to us by Miss Anderson), in which the facts were in some ways comparable, yet the IAT had concluded that (as at May 2002) the appellant would be “likely to be able to pass directly through Colombo Airport”. The reference in Jeyachandran to “exceptional cases” was emphasised, and it was submitted that the Adjudicator had failed properly to consider the peace process. Counsel for N submitted that there were factual similarities between this case and Jeyachandran, and that what was important was the combination of scarring with N’s being on the “wanted” list. The IAT concluded (paragraph 15):

The appeal process in this case was not, to our mind, entirely satisfactory. We have already criticised the Adjudicator’s misleading reference to Jeyachandran. Oddly enough, however, the IAT assumed that he had correctly apprehended the Jeyachandran decision: hence their conclusion that he “was wrong to treat this as an exceptional case”. That is, however, no more than a curiosity, since it was plainly N’s case before the IAT that he was indeed an exceptional case. Miss Crimmins directed her principal assault on the IAT’s conclusion that there was “insufficient evidence to warrant a finding that the Respondent is on a wanted list”. She submitted that there was no sufficient reasoning or explanation to support this conclusion, and in any event being on a wanted list was not the only set of circumstances that might give rise to a good refugee claim.

It is, we think, a further oddity of the case that the Adjudicator did not distinctly find in terms that N was on a wanted list, although we suppose his finding as to what would be in the records is not far off. At all events it was clearly submitted to the IAT that he was indeed on a wanted list. We would accept that the IAT’s reasoning at paragraph 15 (which we have set out) is exiguous. But in our judgment Miss Crimmins’ points are fairly answered by Miss Anderson’s submission that the paragraph must be read in the context of the advocates’ submissions, to which it was the Tribunal’s response. The issue was whether on the uncontentious primary facts and in light of the in-country material and relevant IAT decisions (in particular Jeyachandran), N would be of sufficient interest to the authorities to give rise to a real risk that he would be significantly ill treated. The IAT was entitled to conclude that he would not. And while Miss Crimmins’ argument has certainly given us pause, we have concluded that it cannot found an appeal based purely on want of reasons. Here too, then, the IAT decided on objective grounds that the Adjudicator had been wrong, and the decision is not flawed by legal error.

For all the reasons we have given, we would dismiss these appeals. In so doing, we add the following observations.

First, the IAT is a specialist appellate tribunal. An important part of its work has been to identify current trends and problems and, where appropriate, to give general guidance on in-country conditions on the basis of its expert consideration of the latest material. In that way, it has been able to facilitate a consistent approach on the part of adjudicators. Jeyachandran was a case in which such guidance was given. Having provided the guidance it would be absurd if the IAT, in a subsequent case, was unable to make good a decision of an adjudicator made in ignorance, misunderstanding or disregard of that guidance. Fortunately, paragraph 22 of Schedule 4 to the 1999 Act has enabled the IAT to substitute a decision which it considers to be right.

Secondly, as we have indicated, this case will soon be of no more than historic interest. Section 101 of the Nationality Immigration and Asylum Act 2002 has been brought into operation and appeals from determinations of adjudicators promulgated since June 2003 are now confined to points of law. In a case such as the present ones, this will no doubt raise the familiar argument about the ambit of that concept. It would be a matter for regret if the IAT were to be inhibited in the giving of guidance so as to encourage consistency. It should not be forgotten that adjudicators work under great pressure. There are hundreds of them, many of whom are part time. They have been dealing with tens of thousands of appeals each year. We mean no discourtesy to anyone when we say that, inevitably, it is an imperfect system. It is remarkable that it works as well as it does. It is certainly not assisted by the fact that in a significant proportion of appeals, the Secretary of State is unrepresented before the adjudicator, no doubt because of scarcity of resources. The appeal of Suthan was just such a case. We suspect that if the Secretary of State had been represented, his representative would have been able to have drawn Jeyachandran (which had been notified by the IAT sixteen days earlier) to the attention of the adjudicator. This Court has drawn attention to this problem in another recent case: see Kelangin 28 Janaury 2004 (neutral citation to be added). Be that as it may, it has at least been possible for the IAT to remedy the omission. In this way, consistency – an important aspect of justice – has been achieved.

Thirdly, we permit ourselves a final historical observation. If the Asylum and Immigration (Treatment of Claimants etc) Bill which is now before Parliament is enacted in its present form and the appeal system is “unified”, the present ability of the IAT to provide guidance will be lost. A first instance determination would only be reviewable within the proposed Asylum and Immigration Tribunal on paper and then only on the basis that the decision “depended upon an erroneous construction or application of a provision of an Act”. It seems to us that this would be a recipe for more and irremediable inconsistencies.