SS (Sri Lanka), R (On the Application Of) v The Secretary of State for the Home Department

The question raised on this appeal is whether, in cases heard by the First-tier Tribunal (Immigration and Asylum Chamber) (“FTT”) where the credibility of the appellant is in issue, there is a rule that a delay of more than three months between the hearing of oral evidence and the date of the FTT’s decision renders the decision unsafe. The short answer to the question is that there is no such rule. In tribunal cases, as in court proceedings, excessive delay in making or promulgating a decision is not itself a reason for setting the decision aside. The correct approach is to ask whether the delay has caused the decision to be unsafe so that it would be unjust to let it stand. The only significance of the fact that delay between the hearing and the decision in an asylum case has exceeded three months is that, where the decision is challenged on an appeal, the Upper Tribunal should examine the FTT judge’s factual findings with particular care to ensure that the delay has not caused injustice to the appellant.

The appellant is a Sri Lankan national who entered the UK illegally – he says on 13 December 2013 hidden in the boot of a car. He claimed asylum three days later. The account that he gave in his screening interview and asylum interview was, in summary, that on 10 March 2009 (when he was aged 15) he had been forced to join the militant Tamil group known as the LTTE. He said that after nine days he escaped and returned to his family. On 19 March 2009 he and his family were captured by the Sri Lankan army and taken to a displacement camp where they were interned for two years before being released in May 2011. The appellant alleged that two years later, in May 2013, he was arrested and detained for a month before his brother obtained his release by paying a bribe. He alleged that, while detained, he was tortured and in consequence confessed to being a member of the LTTE. He said that after his release he stayed with his brother. The CID came looking for him at his parents’ home but did not find him. His brother then took him to Colombo and subsequently arranged for an agent to take the appellant out of the country using a false passport and bring him to the UK.

On 25 April 2014 the appellant’s claim for asylum was rejected by the Secretary of State on the ground that he had not shown a well-founded fear of persecution nor substantial grounds for believing that he would suffer serious harm if returned to Sri Lanka. The essential reason given for this decision was that the appellant’s account was considered not to be credible.

The appellant exercised his right of appeal to the FTT. The appeal was heard on 23 December 2014 by FTT Judge Hamilton. The appellant was represented at the hearing and gave oral evidence (through an interpreter). He also relied on medical reports as evidence that he was suffering from PTSD and depression and that he had injuries (consisting of scars from cigarette burns) which were caused by torture during his detention in May 2013.

The decision and statement of reasons of the FTT is dated 23 April 2015, which can be taken to be the date on which its preparation was completed. There was then a further delay before the decision was promulgated on 5 June 2015: this was said by the FTT judge to be “due to an administrative error on my part, whereby I believed I had sent it off for promulgation when in fact I had not.”

In the result, the FTT judge dismissed the appeal. He gave detailed reasons for doing so, which run to 97 paragraphs. In those reasons, the FTT judge reviewed the medical evidence and the appellant’s evidence and concluded that the appellant’s account of his arrest, torture and fear of further mistreatment was not credible.

The appellant was granted permission to appeal to the Upper Tribunal (Immigration and Asylum Chamber) on the ground that it was arguable that, in view of the delay in preparing the decision, the judge’s adverse credibility findings and conclusions were rendered unsafe. The appeal was heard on 1 September 2015 by Deputy Upper Tribunal Judge Davidge. He dismissed the appeal for reasons given in a decision promulgated on 17 September 2015. In particular, the Upper Tribunal judge found that a detailed consideration of the FTT decision did not substantiate the concern that the delay had made the judge’s adverse credibility findings and conclusions unsafe. He noted that the FTT judge had kept a typed record of the proceedings which remained available to him and that the grounds of appeal did not take issue with the judge’s recollection of the appellant’s case or of the evidence given at the hearing. Furthermore, the adverse credibility findings were not based on the appellant’s demeanour or oral evidence given at the hearing which the FTT judge might possibly have misremembered, but rather on discrepancies and difficulties apparent from the documentary evidence. The Upper Tribunal judge concluded that, “whilst the delay is regrettable, it does not give rise to any material error of law.”

Permission for a second appeal to the Court of Appeal was refused by the Upper Tribunal and again by the Court of Appeal when the application was considered on the papers. Permission was granted, however, when the application was renewed at an oral hearing on 17 May 2017. On that occasion the appellant’s counsel, Ms Jegarajah, told the court that there is “an unwritten rule” and “a solid, consistent line” of practice in the Upper Tribunal that, where the appellant’s credibility is in issue, delay of more than three months between the hearing of oral evidence and the date of determination by the FTT renders the determination unsafe. King LJ was persuaded that this was an important point which needed to be clarified by the Court of Appeal. To assist this court in deciding the point, King LJ gave directions requiring the appellant (1) to contact the respondent in order to elicit, if possible, a joint statement as to whether (in a case where credibility is in issue) delay of more than three months between the hearing of oral evidence and the date of determination by the FTT renders the determination unsafe, and also (2) to evidence his counsel’s statement that there is an unwritten rule to that effect which is applied by the Upper Tribunal.

No joint statement has been agreed, as the respondent disputes the existence of the unwritten rule or practice alleged by the appellant’s counsel. In support of his position, the respondent has adduced a statement approved by the President of the Upper Tribunal (Immigration and Asylum Chamber), which includes the following:

“Senior members of the Upper Tribunal are unaware of any rule requiring the Upper Tribunal to allow an appeal on the ground that there was a delay of more than three months (or indeed any specified period) before finalisation of a First-tier Tribunal decision.

…

When the Upper Tribunal entertains grounds for challenging a decision on credibility (whether because of delay or for any other reason) it will take into account the grounds and will determine the extent to which the detailed assertions made about specific findings are made out. The extent to which any of them depend on a mistake in the apprehension of, or a failure of recollection of, the evidence will fall to be considered as part of that process.”

The only material produced by the appellant pursuant to the direction that the evidence the unwritten rule alleged by his counsel is a bundle of authorities. As will be seen, the authorities do not support his counsel’s statement. To the contrary, they demonstrate that there is no rule or practice of the kind alleged.

In court proceedings, the correct approach to an appeal based on excessive delay in delivering judgment is well settled. The test was stated as follows by Lord Scott of Foscote, giving the judgment of the Privy Council in Cobham v Frett [2001] 1 WLR 1775, 1783:

“In their Lordships' opinion, if excessive delay, and they agree that 12 months would normally justify that description, is to be relied on in attacking a judgment, a fair case must be shown for believing the judgment contains errors that are probably, or even possibly, attributable to the delay. The appellate court must be satisfied that the judgment is not safe and that to allow it to stand would be unfair to the complainant.”

This test has been followed in a number of cases, including the decision of this court in Habib Bank Ltd v Liverpool Freeport (Electronics) Ltd [2004] EWCA Civ 1062, paras 18-19, and the further decision of the Privy Council in Jervis v Skinner [2011] UKPC 2, paras 44-45. The same cases also recognise that, although not of itself a sufficient reason to set aside a judgment, excessive delay before the judgment was delivered may require an appeal court to consider the judge’s findings of fact with particular care in order to ensure that the delay has not caused injustice to the losing party.

Before the present tribunal system was created, appeals from decisions of the Secretary of State in asylum cases were heard by Special Adjudicators, from whom an appeal lay to the Immigration Appeal Tribunal (“IAT”). It is apparent from the decision of the Court of Appeal in Sambasivam v Secretary of State for the Home Department [2000] Imm AR 85; [2000] IMLR 105, that in the period before that case was decided a practice had developed in the IAT of the kind which was said by the appellant’s counsel in the present case still to exist. The evidence for this practice cited in the Sambasivam case included a judgment of the IAT in Waigango HX/66194/96 (R.15717), which mentioned that:

“a memorandum had recently been distributed to all Tribunal Chairmen, in an effort to obtain some uniformity of thought, that subject to the particular circumstances of the case, any period in excess of three months between the date of hearing and the date of promulgation would be unacceptable.”

Reference was also made to the judgment of the IAT (HH Judge Pearl presiding) in Mario [1998] Imm AR 281, 287, which observed 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 termination is more than three months.”

In the Sambasivam case, Potter LJ (with whom the other members of the Court of Appeal agreed) commented on these decisions in the following passage (at paras 16-17):

“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 credibility issues unsafe and that such a delay tends to undermine the loser's confidence in the correctness of the decision once delivered. No doubt that is the reasoning which underlay the memorandum referred to in Waigango.

17.

That said, I also consider it plain that the reference in Waigango to the “particular circumstances of the case” in which the Tribunal may properly think it appropriate to depart from the rule of thumb is likely to cover a broad spectrum of individual cases. Apart from the cases already mentioned, i.e. where the delay may be administrative or the findings on credibility contemporaneously recorded, such circumstances would for instance cover the situation where, by reason of the terms of the findings and reasons of the Special Adjudicator, it is plain that his decision was justified on grounds which did not simply depend on his recollection and assessment of the oral testimony of the applicant, or where by reason of the nature of the applicant's evidence, or other material before the adjudicator, its falsehood or absurdity were plain. Equally, as the IAT considered in this case, it may be clear that, making all proper assumptions in favour of the appellant, his case would nonetheless fail to satisfy the necessary requirements for asylum to be granted. Bearing in mind the almost infinite variety of circumstances which may be operative in any given case or claim for asylum, it is unlikely that resort to close comparisons between different applications and their outcomes will be useful when seeking to persuade the Tribunal or this court that the Tribunal has failed to apply its procedure in a consistent manner. In cases of delay of this kind, the matter is best approached from the starting point that, where important issues of credibility arise, 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.”

The issue of delay in asylum cases was revisited by the Court of Appeal in Secretary of State for the Home Department v RK (Algeria) [2007] EWCA Civ 868. In that case there had been a delay of 29 months between a hearing before the IAT and the promulgation of the Tribunal’s decision. The Secretary of State appealed on the ground that during this time there had been a relevant change of circumstances. No issue of credibility arose but in the course of his judgment Wilson LJ (with whom the other members of the Court of Appeal agreed) said (at para 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.”

Having referred to the earlier decision of the Court of Appeal in Sambasivam, Wilson LJ said (at para 22):

“The currency in which this court deals is that of reason; and, if a case is to prevail, [counsel for the appellant] 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.”

The appeal was dismissed, as the appellant had failed to show “any nexus between the delay and the safety of the decision” (para 23).

Although, as mentioned, no issue of credibility arose in RK (Algeria), the principle on which that case was decided – that it is necessary to show a nexus between the delay and the safety of the decision – has since been applied by the Upper Tribunal in cases where the FTT formed an adverse view of the appellant’s credibility. In Arusha and Demushi (deprivation of citizenship-delay) [2012] UKUT 80, the Upper Tribunal considered a case in which there had been a delay of almost a year between the hearing and the FTT’s determination. In discussing the issue of delay, the Upper Tribunal referred to the Privy Council decision in Cobham v Frett [2001] 1 WLR 1775, as well as to the decisions of the Court of Appeal in Sambasivam and RK (Algeria), and derived from the latter case the general principle that:

“To establish that a delay in the promulgation of a decision has led to an error of law it has to be shown that the decision was not safe and therefore unlawful. There must be a nexus between the delay and the safety of the decision…”

In applying that principle, the Upper Tribunal took into account the fact that the two FTT judges who jointly heard the appeal had kept careful and extensive notes of the evidence and submissions and that their conclusions had turned only in part on the assessment of oral evidence and were also based on documentary evidence (para 40). The appeal was dismissed because it had not been shown that the delay in the promulgation of the FTT decision had any effect on the assessment of credibility or on any of the other issues such as to make the decision unsafe and unlawful.

A similar approach to that taken in the Arusha and Demushi case has been taken by the Upper Tribunal in subsequent cases including MMM v Secretary of State for the Home Department (AA/07234/2014, unreported, promulgated 8 July 2015) and AMA v Secretary of State for the Home Department (AA/07115/2014, unreported, promulgated 3 August 2015). It was the approach followed by the Upper Tribunal in the present case.

The decisions of the Court of Appeal in Sambasivam and RK (Algeria) and the decision of the Upper Tribunal in Arusha and Demushi were, quite properly, included in the bundle of “evidence” lodged by the appellant for the hearing of this appeal pursuant to the direction of King LJ. The bundle also included Presidential Guidance Note No 1 of 2014: The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, which states (at para 22):

“The Tribunal will send the notice of the decision and statement of reasons to the parties as soon as practicable. A period of 14 days … for preparing the statement of reasons should be adequate and judges are expected to have their decisions and statements of reasons completed within this period. Having regard to the overriding objective judges should recognise that delay in preparing a decision and written statement of reasons may be incompatible with rule 2(1)(e).”

Rule 2(1)(e) of The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, referred to in the Presidential Guidance Note, states that the overriding objective of dealing with cases fairly and justly includes “avoiding delay, so far as compatible with proper consideration of the issues”.

The period of 14 days for preparing the decision and statement of reasons indicated in the Presidential Guidance Note clearly represents good practice. But it has not been and could not be suggested that failure to prepare a decision and written statement of reasons within that time renders the decision unsafe or provides a ground for seeking a rehearing.

On the hearing of this appeal, counsel for the appellant sought to maintain the proposition (reaffirmed in her replacement skeleton argument) that a delay of more than three months between the hearing of oral evidence and the date of the FTT’s decision, where credibility is in issue and where the FTT judge found the appellant incredible, renders the decision unsafe. The authorities which she cited, however, themselves make it plain that there is no rule of law or practice to this effect. That was effectively conceded in the replacement skeleton argument, where the appellant was said to be in agreement with the principle that a delay between hearing and determination is not sufficient in itself to render a decision unsafe and that what must be demonstrated is that the delay caused the decision to be unsafe.

Thus, the “unwritten rule” and “solid, consistent line” of practice in the Upper Tribunal asserted at the permission hearing does not exist and has not existed at least since the decision of the Court of Appeal in the Sambasivam case. In these circumstances, although I accept that Ms Jegarajah did not intend to mislead the court, it is regrettably clear that permission for this appeal was obtained on a false basis.

Nevertheless, this appeal provides an opportunity to revisit the guidance given in the Sambasivam case. That decision established that it cannot simply be inferred from the fact of excessive delay in a case where the appellant’s credibility is in issue that the decision is unsafe, and that it is always necessary to consider the particular circumstances of the case. Moreover, the examples given by Potter LJ of circumstances in which the IAT might properly decide not to remit the case for rehearing despite a delay of over three months illustrate the need for a causal link between the delay and the (lack of) safety of the decision, as they are all circumstances where it can be seen that, for one reason or another, the delay has not infected the decision. But at the same time, at the end of the passage quoted earlier, Potter LJ said:

“In cases of delay of this kind, the matter is best approached from the starting point that, where important issues of credibility arise, 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.”

This statement can be read as endorsing a (rebuttable) presumption in favour of remittance in cases where important issues of credibility arise and where there has been a delay of over three months. It also appears to set a high bar for rebutting this presumption by requiring the IAT to be satisfied, not just that the decision was not impaired by the delay, but that, if the case were reheard, the outcome “must be the same”.

I do not read the statement in the Sambasivam case as to how the question of delay “is best approached” as intended to articulate a binding rule of law. I think it plain that the Court of Appeal was simply seeking to give to the IAT what was considered at that time to be useful practical guidance. Circumstances have changed, however, since that guidance was given. As explained in the statement approved by the Chamber President (referred to at paragraph 9 above):

“In the days of the Immigration Appeal Tribunal (before 2004) there were observations in that Tribunal that a delay of three months might or perhaps would merit remittal. The context of those observations was a jurisdiction in which remittal for rehearing was readily directed, often with the consent of the Home Office. Much has changed since then, including the abolition of the Immigration Appeal Tribunal and its replacement by the Asylum and Immigration Tribunal, in part specifically in order to reduce the number of remittals. The AIT was in 2010 replaced by the Upper Tribunal (Immigration and Asylum Chamber), a superior court of record, with procedure rules that apply across the whole, multi-jurisdiction Upper Tribunal.”

Another significant development since the Sambasivam case is the decision of the Privy Council in Cobham v Frett [2001] 1 WLR 1775 and cases following it which have authoritatively established the correct approach where an appeal is based on excessive delay in delivering judgment.

There is no justification for applying a different or special approach on appeals to the Upper Tribunal (Immigration and Asylum Chamber) from the approach which is generally applicable in cases of delay in giving a decision. Nor does the fact that the appellant’s credibility was in issue justify applying a different test – though it may of course, depending on the circumstances, be an important factor in applying the test. There is no good reason to remit a case for rehearing just because it turned on assessment of the appellant’s credibility if the appellate court or tribunal can be confident that the assessment has not been affected by the delay. In each case, the question that needs to be asked is whether the delay in preparation of the decision has caused the decision to be unsafe.

It can therefore be confirmed that the approach to the issue of delay adopted by the Upper Tribunal in the case of Arusha and Demushi, applying the decision of this court in RK (Algeria), which requires a nexus to be shown between the delay and the safety of the decision, is the correct approach. The only significance of the fact that delay between hearing and decision has exceeded three months is that on an appeal to the Upper Tribunal this period remains an appropriate marker of when delay is of such length that it requires the FTT judge’s findings of fact to be scrutinised with particular care to ensure that the delay has not infected the determination.

In the present case the grounds of appeal do not identify any particular respect in which the delay of four months between the hearing and the date of decision, regrettable as it was, has potentially resulted in error. It is not suggested, for example, that the FTT judge misremembered any of the oral evidence or failed to deal with a material point raised by the appellant. The only attempt made in the grounds of appeal to link the delay to a possibility of error is a complaint that the FTT judge wrongly recorded the appellant’s representative as having submitted that “there was nothing medically to undermine his case”, whereas the appellant had in fact relied on the medical evidence as providing positive support for his case. It is clear, however, from the FTT judge’s detailed examination of the medical evidence that he considered carefully whether or not it did provide positive support for the appellant’s claims that he had been tortured and was suffering from PTSD and gave solid reasons for concluding that it did not.

In her replacement skeleton argument served shortly before the hearing of this appeal, Ms Jegarajah sought to advance a new argument. It may be recalled that one of the reasons given by the Upper Tribunal judge for concluding that the delay in preparing the determination did not render it unsafe was that the FTT judge’s adverse credibility findings were not based on the appellant’s demeanour but on discrepancies and difficulties apparent on the documentary evidence. Ms Jegarajah sought to turn this point into a criticism of the FTT judge. She submitted that demeanour is a vital matter to take into account in assessing the credibility of a witness, particularly when the issue of credibility is central to the determination as it often is in asylum cases. She suggested that the failure of the FTT judge to record his impression of whether the appellant appeared from his demeanour to be a credible witness may reflect the fact that, by the time he prepared the determination, the judge’s memory of how the appellant gave his oral evidence had dimmed with the passage of time. Ms Jegarajah submitted that this is a reason to hold that the determination is unsafe and to remit the case for a rehearing.

There is no warrant for entertaining at this stage an argument which was not made before the Upper Tribunal, is not raised in the grounds of appeal and did not form part of the basis on which the appellant was granted permission for a second appeal. But it is nevertheless worth explaining why the fact that the FTT judge did not base his credibility findings on his impression of the appellant’s demeanour is a merit and not a defect of the decision.

The term “demeanour” is used as a legal shorthand to refer to the appearance and behaviour of a witness in giving oral evidence as opposed to the content of the evidence. The concept is, in the words of Lord Shaw in Clarke v Edinburgh & District Tramways Co Ltd 1919 SC (HL) 35, 36, that:

“witnesses ... may have in their demeanour, in their manner, in their hesitation, in the nuance of their expressions, in even the turns of the eyelid, left an impression upon the man who saw and heard them which can never be reproduced in the printed page.”

The opportunity of a trial judge or other finder of fact to observe the demeanour of witnesses when they testify and to take this into account in assessing the credibility of their testimony used to be regarded as a peculiar advantage over an appellate court which insulated findings of fact based on such observation from challenge on appeal. This approach was encapsulated by Lord Sumner in Owners of Steamship Hontestroom v Owners of Steamship Sagaporack [1947] AC 37, 47, when he said that:

“... not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case.”

Nowadays the reluctance of an appellate court to interfere with findings of fact made after a trial or similar hearing is generally justified on other grounds: in particular, the greater opportunity afforded to the first instance court or tribunal to absorb the detail and nuances of the evidence, considerations of cost and the efficient use of judicial resources and the expectation of the parties that, as Lewison LJ put it in Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5, para 114(ii): “The trial is not a dress rehearsal. It is the first and last night of the show.”

Generally speaking, it is no longer considered that inability to assess the demeanour of witnesses puts appellate judges “in a permanent position of disadvantage as against the trial judge”. That is because it has increasingly been recognised that it is usually unreliable and often dangerous to draw a conclusion from a witness’s demeanour as to the likelihood that the witness is telling the truth. The reasons for this were explained by MacKenna J in words which Lord Devlin later adopted in their entirety and Lord Bingham quoted with approval:

“I question whether the respect given to our findings of fact based on the demeanour of the witnesses is always deserved. I doubt my own ability, and sometimes that of other judges, to discern from a witness's demeanour, or the tone of his voice, whether he is telling the truth. He speaks hesitantly. Is that the mark of a cautious man, whose statements are for that reason to be respected, or is he taking time to fabricate? Is the emphatic witness putting on an act to deceive me, or is he speaking from the fullness of his heart, knowing that he is right? Is he likely to be more truthful if he looks me straight in the face than if he casts his eyes on the ground perhaps from shyness or a natural timidity? For my part I rely on these considerations as little as I can help.”

“Discretion” (1973) 9 Irish Jurist (New Series) 1, 10, quoted in Devlin, The Judge (1979) p63 and Bingham, “The Judge as Juror: The Judicial Determination of Factual Issues” (1985) 38 Current Legal Problems 1 (reprinted in Bingham, The Business of Judging p9).

The reasons for distrusting reliance on demeanour are magnified where the witness is of a different nationality from the judge and is either speaking English as a foreign language or is giving evidence through an interpreter. Scrutton LJ once said that he had “never yet seen a witness giving evidence through an interpreter as to whom I could decide whether he was telling the truth or not”: see Compania Naviera Martiartu v Royal Exchange Assurance Corp (1922) 13 Ll L Rep 83, 97. In his seminal essay on “The Judge as Juror” Lord Bingham observed:

“If a Turk shows signs of anger when accused of lying, is that to be interpreted as the bluster of a man caught out in deceit or the reaction of an honest man to an insult? If a Greek, similarly challenged, becomes rhetorical and voluble and offers to swear the truth of what he has said on the lives of his children, what (if any) significance should be attached to that? If a Japanese witness, accused of forging a document, becomes sullen, resentful and hostile, does this suggest that he has done so or that he has not? I can only ask these questions. I cannot answer them. And if the answer is given that it all depends on the impression made by the particular witness in the particular case that is in my view no answer. The enigma usually remains. To rely on demeanour is in most cases to attach importance to deviations from a norm when there is in truth no norm.” (emphasis added)

See Bingham, “The Judge as Juror: The Judicial Determination of Factual Issues” (1985) 38 Current Legal Problems 1 (reprinted in Bingham, The Business of Judging at p11).

Ms Jegarajah emphasised that immigration judges acquire considerable experience of observing persons of different nationalities and ethnicities giving oral evidence and suggested that this makes those judges expert in evaluating the credibility of testimony given by such persons based on their demeanour. I have no doubt that immigration judges do learn much in the course of their work about different cultural attitudes and customs and that such knowledge can help to inform their decision-making in beneficial ways. But it would hubristic for any judge to suppose that because he or she has, for example, seen a number of individuals of Tamil origin giving oral evidence this gives him or her a privileged insight into whether a particular witness of that ethnicity is telling the truth. That would be to assume that there are typical characteristics shared by members of an ethnic group (or by human beings generally) which can be relied on to differentiate a person who is lying from someone who is telling what they believe to be the truth. I know of no evidence to suggest that any such characteristics exist or that demeanour provides any reliable indication of how likely it is that a witness is giving honest testimony.

To the contrary, empirical studies confirm that the distinguished judges from whom I have quoted were right to distrust inferences based on demeanour. The consistent findings of psychological research have been summarised in an American law journal as follows:

“Psychologists and other students of human communication have investigated many aspects of deceptive behavior and its detection. As part of this investigation, they have attempted to determine experimentally whether ordinary people can effectively use nonverbal indicia to determine whether another person is lying. In effect, social scientists have tested the legal premise concerning demeanor as a scientific hypothesis. With impressive consistency, the experimental results indicate that this legal premise is erroneous. According to the empirical evidence, ordinary people cannot make effective use of demeanor in deciding whether to believe a witness. On the contrary, there is some evidence that the observation of demeanor diminishes rather than enhances the accuracy of credibility judgments.”

OG Wellborn, “Demeanor” (1991) 76 Cornell LR 1075. See further Law Commission Report No 245 (1997) “Evidence in Criminal Proceedings”, paras 3.9–3.12. While the studies mentioned involved ordinary people, there is no reason to suppose that judges have any extraordinary power of perception which other people lack in this respect.

This is not to say that judges (or jurors) lack the ability to tell whether witnesses are lying. Still less does it follow that there is no value in oral evidence. But research confirms that people do not in fact generally rely on demeanour to detect deception but on the fact that liars are more likely to tell stories that are illogical, implausible, internally inconsistent and contain fewer details than persons telling the truth: see Minzner, “Detecting Lies Using Demeanor, Bias and Context” (2008) 29 Cardozo LR 2557. One of the main potential benefits of cross-examination is that skilful questioning can expose inconsistencies in false stories.

No doubt it is impossible, and perhaps undesirable, to ignore altogether the impression created by the demeanour of a witness giving evidence. But to attach any significant weight to such impressions in assessing credibility risks making judgments which at best have no rational basis and at worst reflect conscious or unconscious biases and prejudices. One of the most important qualities expected of a judge is that they will strive to avoid being influenced by personal biases and prejudices in their decision-making. That requires eschewing judgments based on the appearance of a witness or on their tone, manner or other aspects of their behaviour in answering questions. Rather than attempting to assess whether testimony is truthful from the manner in which it is given, the only objective and reliable approach is to focus on the content of the testimony and to consider whether it is consistent with other evidence (including evidence of what the witness has said on other occasions) and with known or probable facts.

This was the approach which the FTT judge adopted in the present case. It appears that the FTT judge did in fact recall when writing the determination the manner in which the appellant gave evidence at the hearing, as he commented (at para 59):

“When [the appellant] gave evidence before me, some of his answers were inconsistent and variable but there was no suggestion that he could not remember things.”

This suggests that the way in which the appellant answered questions did not create a favourable impression. Quite rightly, however, the FTT judge did not attach weight to that impression in assessing the credibility of the appellant’s account. Instead, he focussed on whether the facts alleged by the appellant were plausible, consistent with objectively verifiable information and consistent with what the appellant had said on other occasions (in particular, at his asylum interview and in recounting his history to the medical experts). Applying those standards, the FTT judge found numerous significant inconsistencies and improbable features in the appellant’s account which he set out in detail in the determination. As the FTT judge explained, it was “the cumulative effect of the implausible and inconsistent evidence” given by the appellant which led him to conclude that the core of the appellant’s account was not credible.

Accordingly, even if the appellant had through his demeanour when answering questions given the FTT judge the impression that he looked and sounded believable, the suggestion that the FTT judge should have given significant weight to that impression, let alone that he could properly have treated it as compensating for the many inconsistencies and improbabilities in the content of the appellant’s account, cannot be accepted.

In my view, there were no reasonable grounds for arguing that the FTT judge’s decision in this case was unsafe, let alone for bringing a second appeal. I would therefore dismiss the appeal.

I agree.

I also agree.