Luxmyranthan v Secretary of State for the Home Department

LORD JUSTICE RICHARDS: The applicant is a citizen of Sri Lanka who came to this country in 2001 and claimed asylum. The basis of his claim was that he had once been a member of the LTTE, had subsequently been detained by the authorities on three occasions for suspected involvement with the LTTE, and had suffered ill-treatment during detention, including torture, anal rape and other sexual assaults.

His claim has an unusually complex history. The claim was originally refused by the Secretary of State, but was the subject of an appeal to an adjudicator. In a decision issued in January 2003 the adjudicator, Mr Cohen, allowed the appeal on asylum and human rights grounds. He found that the core of the applicant's account was credible, that the Sri Lankan authorities were interested in him as a suspected LTTE supporter or member, and that it would not be safe for him to return.

The Secretary of State appealed that decision to the IAT. In a decision notified in August 2003 the tribunal, chaired by Mr Mather, allowed the appeal and remitted the case for a fresh hearing before another adjudicator. It found that the first adjudicator had not focused sufficiently on what might happen to the applicant on return in the light of the current objective evidence and the interpretation put on it in a series of tribunal decisions to which the first adjudicator did not appear to have addressed his mind. It also expressed concern that the adjudicator had not made findings about certain evidence given by the applicant in respect of his last detention, in particular his evidence that during the detention he had seen his army file which was about a quarter of an inch thick.

The tribunal stated in paragraph 15 that it was remitting the matter to a fresh adjudicator:

The case was then heard by a fresh adjudicator, Mr Brewer, whose decision was issued in January 2004. He too accepted the applicant's general credibility and that the applicant had suffered torture, although he did not accept the genuineness of certain recent documents and he considered that the applicant had made attempts to bolster his appeal. He concluded, however, that in the light of the objective evidence and recent tribunal decisions, the applicant would not be at risk on return. He therefore dismissed the asylum and human rights appeals.

This time it was the applicant's turn to appeal to the IAT. The tribunal, chaired by one of its Vice Presidents, Mr Lane, notified its decision in January 2005. The parties accepted, and the tribunal agreed, that the appeal should be allowed to the extent of the case being remitted yet again to a fresh adjudicator. The tribunal singled out the fact that the second adjudicator had made no relevant findings about various matters that the tribunal which had remitted the case on the first occasion considered to be of significance; in particular the question whether the applicant had seen his army file while in detention and the circumstances surrounding his claimed detention in respect of the storage of landmines at his place of employment.

The tribunal therefore remitted the case for a fresh hearing before another adjudicator, directing that adjudicator to have express and careful regard to the tribunal's previous decision and in particular to paragraphs 15 and 16 of that decision.

On 4th April 2005, before the fresh hearing had taken place, the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 came into force, changing the appellate structure from the previous two tiers to a single tier (AIT). The fresh hearing, therefore, fell to be treated as a reconsideration hearing under the new regime (see Article 5 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (Commencement No 5 and Transitional Provisions) Order 2005).

It seems that the tribunal directed that the case be heard by a two member panel, but in fact because of listing problems it was heard on 3rd May 2005 by a single immigration judge, Miss Pitt. I should mention in passing that complaint was made of this on the ground that the tribunal was improperly constituted and the entire proceedings were void for want of jurisdiction. If that point is pursued it is, in my judgment, plainly a bad one. Even if there was a procedural irregularity, no objection was taken at the hearing before the immigration judge and it is not open to the applicant to raise any such objection now.

The immigration judge's decision was issued on 17th May 2005. Unlike the previous adjudicators she found that the applicant's account was not credible in many of its basic features. She did not accept his evidence about detentions or ill-treatment, or that he had ever been of interest to the Sri Lankan authorities. In paragraph 39 of her decision she referred to the second tribunal's directions and made clear that she did not accept that the applicant was detained at the time when he claimed to have seen the army file. She did not accept that he could have seen such a file at that time or that he ever had such a file. She went on, in paragraph 39:

That is the decision from which the applicant now seeks permission to appeal to this court. Permission was refused on the papers by Auld LJ. The application has been renewed before me. The main submission advanced in support of the application is that it was unlawful and unfair for the immigration judge to make fresh credibility findings of her own and not to proceed by reference to, and indeed not even to have regard to, the positive credibility findings made by the two previous adjudicators. It is submitted that the applicant should not have been deprived of the benefit of those earlier assessments and, in particular, the assessment of the second adjudicator. It is submitted that under the new regime introduced by the 2004 Act the immigration judge's decision on a reconsideration should have been based on the previous adjudicator's findings of fact.

Miss Jegarajah, appearing for the applicant, has developed her submissions on this part of the case over time and has very helpfully crystallised them in a set of written summary submissions which she has elaborated on in oral argument before me this morning. She points out that the effect of the second tribunal decision was a determination that there had been a material error of law in the second adjudicator's decision. She points to paragraph 31(4) of The Asylum and Immigration Tribunal (Procedure) Rules 2005 which provides that in carrying out a reconsideration the tribunal may limit submissions or evidence to one or more specified issues and must have regard to any directions given by the immigration judge or court which ordered reconsideration.

Miss Jegarajah draws attention to a practice direction issued by the president of the AIT on 4th April 2005 in respect of the new regime. Paragraph 14 of that practice direction deals with the procedure to be followed on a reconsideration. Paragraph 14.1 states that:

References to the original tribunal include, by paragraph 14.5, references to a previous adjudicator. By paragraph 14.2, where there has been a decision that there was a material error of law, and where further findings of fact are required, the tribunal can transfer or adjourn the hearing so as to enable evidence to be adduced for that purpose.

The specific situation that arose in the present case is covered by paragraph 14.11 which provides:

Miss Jegarajah submits that the reference should not be to a full rehearing but to a reconsideration of the kind otherwise referred to in paragraph 14, which means a reconsideration based on the original adjudicator's findings of fact. That, it is said, would accord with paragraph 14.1 and with other paragraphs of the practice direction.

Paragraphs 14.12 and 14.13 contemplate, in relation to fast-track appeals where there is a reconsideration, that the parties should attend with all evidence and witnesses at the first hearing. The submission made is that fast-track appeals are treated differently because of the need to expedite proceedings. Parties are required to attend ready to deal with evidence at the first hearing, whereas in the ordinary case the tribunal will determine at the first hearing whether there is a need to address any factual issues and can adjourn or transfer for the purpose of enabling evidence to be adduced if necessary. But the normal course is to proceed to determine the matter on the basis of the original adjudicator's findings of fact.

Accordingly, the essence of the case now put is that once a material error of law has been established, as it was by the second tribunal's decision, then, in the absence of a specific direction to the contrary (a direction made under the new regime) the only correct approach was to consider the matter on the basis of the factual findings of the previous adjudicator rather than to proceed to make fresh factual findings.

The relevant provisions of the practice direction, in particular paragraph 14.11, were considered by the AIT in YF [2005] UKAIT 00126, a case in which guidance was given on the correct approach to findings of fact made previously in circumstances where an appeal has been remitted to an adjudicator for a fresh hearing before 4th April 2005 but the hearing has not taken place by that date.

The tribunal held in YF that the intention was that a reconsideration in accordance with paragraph 14.11 of the practice direction should be a full rehearing with fresh evidence and that the tribunal could substitute its own findings of fact. It was not limited to a reconsideration on the basis that the previous findings of fact were to stand.

On the particular facts of that case it saw no grounds for inferring that the intention of the tribunal in remitting the matter had been that the reconsideration should be carried out on the basis of the adjudicator's original findings of fact. Accordingly it was held that fresh findings were appropriate.

I think it clear that, on the particular facts of the present case, the second tribunal, in remitting the matter once again, plainly intended that the adjudicator hearing the case should reach his or her own findings of fact rather than deciding the matter on the basis of the previous adjudicator's findings of fact. It directed the adjudicator to have regard to the terms of the decision of the first tribunal which plainly contemplated a fresh consideration of all the evidence and the making of findings as to what was and was not accepted, and to embrace in particular the question of the army file and the reasons for the applicant's last detention. It was impossible to reach findings on those matters without considering the question of the applicant's credibility as a whole.

As regards the intention of the remitting tribunal, therefore, the immigration judge was, in my judgment, plainly right in what she said at paragraph 39 of her decision and the approach she adopted to fact-finding was fully in accordance with the intention of the remitting tribunal.

Miss Jegarajah rightly accepts that had the case been determined afresh before 4th April 2005 the correct approach would have been to make fresh findings of fact. The question, therefore, is whether that approach is fundamentally changed by the new regime.

I have outlined the submissions made to the effect that under that regime, and having regard to the terms of the rules and the practice direction, the correct approach was to reconsider the matter on the basis of the second adjudicator's findings of fact rather than to make fresh findings of fact.

I disagree with the submissions advanced. In my judgment the tribunal in YF was plainly correct in its result as applied to the facts of that case, whether or not one can take issue with aspects of its more general reasoning.

Equally a similar outcome must follow on the facts of the present case. It would be very surprising if a case that plainly called for fresh factual findings, had it been heard just before 4th April 2005, should now have to be decided on old findings, findings that the remitting tribunal had considered to be inadequate. I do not accept that the new regime has that arguable consequence. Paragraph 14.11 is clear in its terms. Even if one did seek to qualify those terms by reference to other provisions of the practice direction, an aspect of the qualification that would have to be made would be that the need to determine matters on the basis of the original tribunal's findings of fact was subject to any direction otherwise. I do not accept that a direction of that kind would have to be a new direction made after 4th April 2005.

It seems to me that the directions given by the remitting tribunal in this case, albeit given prior to 4th April 2005, plainly constituted directions requiring the case to be determined, not simply on the basis of the second adjudicator's findings of fact, but with fresh findings by the new adjudicator or, as it turned out, by the new immigration judge.

Accordingly I see no real prospect of persuading the Court of Appeal, on a substantive appeal, that the immigration judge, in this case, erred in law in proceeding in the manner in which she did.

I have focused on the way in which the case is now presented by Miss Jegarajah. I am not certain whether the other grounds originally advanced in the written grounds of appeal are still maintained. They relate to the rationality of the immigration judge's reasoning process, whether there were factual errors, and whether she considered various matters that she should have considered. It is sufficient to say in relation to them that, in my view, they do not have a real prospect of success either individually or cumulatively.

Accordingly, the application before me is dismissed.