Secretary of State for the Home Department v RK (Algeria)

LORD JUSTICE WILSON: With the permission of the Asylum and Immigration Tribunal, the Secretary of State for the Home Department appeals against the determination of the Tribunal's predecessor, namely the Immigration Appeal Tribunal ("the Tribunal"), promulgated on 24 August 2006.

The Tribunal had on 3 March 2004 heard an appeal by the Secretary of State and a cross-appeal by RK, the respondent, against determinations by an adjudicator that the respondent's appeal against the Secretary of State's refusal to grant him asylum should be upheld and that his appeal against the rejection of his claims under the European Convention on Human Rights 1950 should be dismissed.

The Secretary of State's main ground for appeal to this court is founded upon a lamentable, and I trust unique, state of affairs, namely that, as is already apparent, the Tribunal's determination was promulgated 29 months after the hearing.

As I will explain, the determination seems to have been written and signed on about 11 September 2004, in itself amounting to a delay of about six months, but thereafter it was not promulgated for almost a further two years. The Tribunal's determination was that, although the adjudicator had been wrong to hold that the respondent, who is of Algerian nationality and who had served in the Algerian army prior to his decision to seek to remain in this country and to desert from that army, was entitled to asylum, he had been equally wrong to reject his claim to be allowed to remain in the UK by virtue of Article 3 of the European Convention.

The respondent is now aged 45. In 1983, when aged 21, he joined the Algerian army, in which he became a junior officer. During the following 13 years he made various lawful visits to this country, in the course of which he developed a relationship with a female British citizen who, in 1991, bore him a son. In December 1996 he came again to the UK with entry clearance which afforded him leave to remain here for six months. His leave of absence from the Algerian army, however, was only until 29 January 1997.

On 22 January 1997, in England, the respondent married the mother of his son and decided not to return to Algeria but, rather, to claim leave to remain in the UK as a spouse of a British national.

On any view, therefore, the respondent deserted from the Algerian army by failing to return for service on or before 29 January 1997.

In June 1997 the respondent claimed asylum. But on 13 March 2000 the Secretary of State refused his claim and later that month made a deportation order against him. Following further representations on his part and a refusal on the part of the Secretary of State to revoke the deportation order, the respondent launched his appeal to the adjudicator. The result of the appeal, promulgated on 2 April 2002, was, as I have indicated, to uphold his claim for asylum, on grounds which are now irrelevant, but to reject his claim on human rights grounds.

It will be noted that the hearing before the Tribunal on 3 March 2004 took place almost two years after the promulgation of the adjudicator's decision. That delay was partly attributable to the Tribunal's wish to receive further, updated objective evidence about the likely treatment of the respondent in the event of his return to Algeria.

Then, however, there was no promulgation of the Tribunal's decision. The solicitors for the respondent wrote to the Tribunal, marked "For the attention of the President", on 17 September 2004, 21 January 2005, 29 March 2005 and 2 June 2005, pressing for promulgation of the decision. They received one bare acknowledgment and the other three letters were, so we have been told, ignored. It is unclear whether the Secretary of State also pressed for promulgation; Miss Chan, on his behalf, is unable to confirm that he did so. In the end, on 9 May 2006, the respondent issued proceedings for judicial review of the Tribunal's conduct of the appeals with a view to securing a mandatory order for promulgation of its decision. That precipitated its promulgation on 24 August 2006. Senior Immigration Judge Moulden endorsed on the issued copies of the determination that His Honour Judge Risius, the Vice President of the IAT who had presided over the hearing on 3 March 2004, had signed the original of it on or about 11 September 2004; that the original had been misplaced; and that he, Judge Moulden, was signing a duplicate copy of it on 27 July 2006.

In giving permission to appeal to this court, Senior Immigration Judge Batiste wrote that:

The Deputy President seems there to have been referring to the lack of power of the President at that particular time to set aside, of his own motion, a determination of the Tribunal following consultation with all parties. As it happens, the power has now been restored to him: see Rule 15 of the Asylum and Immigration Tribunal (Procedure) (Amendment) Rules 2006, SI2006 No. 2788. Whether it would have been proper for the President or the Deputy President to have exercised that power in this case, had he had it at the relevant time, seems to me to be an issue identical with the issue raised before us today.

It is important to note what is no longer, and indeed what never has been, the Secretary of State's argument in support of the appeal.

First, notwithstanding that such was a faint subsidiary ground of appeal, Miss Chan does not deny that it was open to the Tribunal, on the evidence before it on 3 March 2004, to have held that there was a real risk of Article 3 ill-treatment of the respondent in the event of his return to Algeria.

The respondent's main evidence before the Tribunal in that regard was contained in a report by Professor Seddon. The report was the subject of considerable debate before the Tribunal. In its determination the Tribunal reported the concession on behalf of the Secretary of State that, as a deserter, the respondent would face some formal proceedings on return to Algeria. Professor Seddon's evidence, however, went much further, namely that, in the case of an officer's desertion abroad, there was a high likelihood of a lengthy period of imprisonment and that the likely conditions of it were such as to cross the Article 3 threshold. Also placed before the Tribunal on the respondent's behalf were extracts from the 2003 US State Department country report on Algeria (published in 2004) and from the Home Office CIPU Report dated October 2003. In its determination the Tribunal recorded both the submission on behalf of the Secretary of State that those two reports did not confirm the evidence of Professor Seddon and the rival submission on the part of the respondent that they did indeed confirm it. In the event the Tribunal upheld the respondent's submission in that regard.

Furthermore the Secretary of State today makes no continuing attempt to persuade us, even on a prima facie basis, that circumstances for deserting officers returning to Algeria have significantly changed since March 2004 and, if analysed by reference to up-to-date evidence, would no longer cross the Article 3 threshold. As can be seen from the way in which the Senior Immigration Judge articulated his reasons for granting permission for this appeal, namely from his reference to "the changed objective evidence", this contention was at the forefront of the Secretary of State's appeal at its outset; and, although it was given less prominence in Miss Chan's skeleton argument, it has been abandoned only this morning.

In my view Miss Chan was wise to abandon it. First, the material which in this regard the Secretary of State had apparently wished us to consider, namely another decision of the IAT in January 2005 entitled SG (Article 3 - Military Service - Detention) Algeria (2005) UKIAT 00031 and the Home Office Country of Origin Information Report on Algeria dated April 2006, did not in my view sufficiently demonstrate the contention which was being made. But also, more importantly, had she been continuing to rely on an alleged change of circumstances in Algeria between March 2004 and August 2006, Miss Chan would been confronted by the fact that it would have been open to the Secretary of State, at any time prior to promulgation of the decision, to seek the Tribunal's permission to lay the further material before it: see the decision of this court in E v Secretary of State for the Home Department [2004] EWCA Civ 49, at [27] and [92].

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. But, as the Secretary of State has, in effect, always conceded, such is a factor entirely absent from this case. The adjudicator had described the respondent as "in general, a credible witness"; and, before the Tribunal, his credibility was not in issue. Indeed he did not even give oral evidence. No oral evidence was given at all, whether by Professor Seddon or otherwise; and the appeals fell to be determined by reference entirely to the written material, as well, of course, as to the submissions made orally to the Tribunal by the Home Office Presenting Officer and by counsel for the respondent.

If such then are not the arguments marshalled on the Secretary of State's behalf today, how is it argued that the Tribunal made an error of law which would entitle us to set aside its determination?

Miss Chan relies in particular upon a decision of this court, namely Sambasivam 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:

Miss Chan's stance today is to rely upon the second of the "twin reasons" to which my Lord referred in judgment, namely that such a delay tends to undermine the loser's confidence in the correctness of the decision ultimately delivered. Miss Chan makes no bones about it. Her case is that the Secretary of State has lost confidence in the correctness of the Tribunal's determination because both of the excessive delay in its preparation and of the gross further delay in its promulgation. But, with respect, Miss Chan's task is to persuade this court that it should have no confidence in the correctness of the determination or, put more precisely, in its safety and therefore in its lawfulness.

The currency in which this court deals is that of reason; and, if her case is to prevail, Miss Chan must tender reasoned arguments why the determination is unsafe. She is not appealing against the delay. She is appealing against the decision; and, if she can, she must, in some rational way, present the delay as a source of infection of the decision. I am quite unable to see how in any case a delay between preparation and promulgation, however lamentable, can thus be presented. And, in relation to the delay until preparation, we have both Miss Chan's confirmation that credibility was not in issue and her specific acknowledgment today that she cannot even argue that in its determination the Tribunal did not adequately address the submissions made orally to it.

Miss Chan's brief is in effect to submit that, of itself, a delay of about six months until preparation of the decision, with or without the gross further delay thereafter, represents such a lamentable failure on the part of the system that the only fair reaction of an appellate court is to require the exercise to be undertaken again. When in the course of argument I suggested to her that, were her submission upheld, all judges and tribunal chairmen should, in cases in which their decisions were not fully prepared by the expiry of six months, cease work on them, she, in a way reasonably, qualified her submission. For the length of delay which would trigger the need for a rehearing under her suggested principle would of course depend upon the complexity of the decision. I also accept that the anxious scrutiny to be applied to immigration cases might make them more appropriate candidates for the sort of principle which she purports to enunciate. But, even as thus qualified, I cannot accept her principle. For she has failed to show, indeed she does not purport to show, any nexus between the delay and the safety of the decision.

Miss Chan also says -- and here now she speaks purely hypothetically -- that, if there is in the course of delay in the Tribunal's preparing or promulgating a decision a substantial change for the better in the relevant circumstances which obtain in the foreign country, it is highly undesirable that no cognisance can be taken of it. She relies on the decision of this court in Ravichandran v Secretary of State for the Home Department (1996) Imm AR 97 in which it was held that judicial determinations made within the immigration appellate structure were to be regarded as an extension of the decision-making process and so in principle should be based upon circumstances as they are at the time of those determinations rather than at any earlier stage. Of course she does not submit that this court is part of that structure; but she reaches for the principle behind that decision.

There has to come a time, however, at which the opportunity for judicial survey of up-to-date evidence stops. Under our system, and save in exceptional circumstances, it stops upon promulgation of the Tribunal's determination; and so it has stopped by the time when the case reaches this court.

There is, however, a second response to Miss Chan's point. The result of our dismissal of this appeal would be that the Secretary of State would be required to reflect the Tribunal's determination in the grant to the respondent either of leave to remain as a matter of humanitarian protection or of discretionary leave to remain. In either case, however, the leave would be likely to be for a finite number of years, at the end of which the Secretary of State would be required to review the respondent's case in the light of all the relevant circumstances which then obtain, including in Algeria.

I would dismiss the appeal.

LORD JUSTICE SEDLEY: I agree.

SIR MARK POTTER, P: I also agree.