Subesh & Ors v Secretary Of State For Home Department

An open-ended appeal on fact and law is not a second first-instance hearing. Finality means that the first decision is treated as correct until the appellant shows objective grounds on which the appellate body ought to adopt a different view. The decisive question is whether the reasoning and applicable law require that different view, not whether an error can first be isolated from the appellate body’s own assessment.

Practical restraint varies with the evidence. Findings based on oral credibility attract particular caution, while documentary material, inferences and general country conditions may be reconsidered more readily. A specialist immigration tribunal may issue authoritative country guidance to promote consistency and may correct an adjudicator’s unjustified departure from it. Mere failure to cite the guidance does not alone justify intervention.

Four Tamil asylum-seekers from Sri Lanka appealed against determinations of the Immigration Appeal Tribunal. In each case an adjudicator had allowed an appeal against the Secretary of State’s rejection of asylum or human-rights claims, but the Tribunal subsequently allowed the Secretary of State’s appeal.

The appeals concerned the Tribunal’s power under Schedule 4 to the Immigration and Asylum Act 1999 to overturn an adjudicator’s factual conclusions. The appellants argued that intervention was permissible only where those conclusions were plainly wrong, unsustainable or outside the range of reasonable disagreement.

A related question concerned the status of the country guidance given in Jeyachandran [2002] UKIAT 01689, which stated that only exceptional failed Tamil asylum-seekers would then be unable to return safely. The central issue was whether the Tribunal had objective grounds for substituting its conclusions and whether its decisions disclosed an error of law.

1. Disposition. The four appeals were dismissed. The Immigration Appeal Tribunal had objective grounds for concluding that its assessments of the risk on return were right, and none of its determinations was vitiated by legal error.
2. Paragraph 22 of Schedule 4 to the Immigration and Asylum Act 1999 conferred an unqualified appeal to the Tribunal on fact and law and authorised it to substitute any determination which the adjudicator could have made. Its review was therefore not confined to the irrationality principles associated with Wednesbury [1948] 1 KB 223. Paragraph 23(1), by contrast, confined the further appeal to the Court of Appeal to a material question of law.
3. The common-law principle of finality meant that an open-ended appeal was not a fresh first-instance hearing. The appellant bore the burden of showing objective grounds on which the appellate body ought to conclude that a different view was right. This required the process of reasoning and the applicable law to impel the different conclusion; a merely preferable or marginally different view was insufficient.
4. The distinction between identifying an error and merely disagreeing with the first-instance decision was elusive and unhelpful. The Tribunal did not have to identify an error in an exercise separated from its own assessment of the merits. The error might itself consist of the Tribunal’s conclusion that different inferences were the right ones.
5. The practical degree of appellate restraint depended on the evidence. An appellate body which had not heard disputed oral testimony should be slow to overturn credibility findings. It might be as well placed as the adjudicator to assess documents, inferences and general country conditions. The evidential categories described in Indrakumar [2003] EWCA Civ 1677 remained useful when applying the objective-grounds standard.
6. A specialist Tribunal could give temporarily authoritative guidance on country conditions to secure consistency. Jeyachandran [2002] UKIAT 01689 was such a factual precedent, although its reach was modest because conditions remained fluid and individual circumstances still required examination. The Tribunal could intervene where an adjudicator departed from that guidance without a perceptible good reason. A failure merely to mention the authority did not itself justify intervention, although it could indicate that the guidance had been overlooked.
7. In each appeal the Tribunal used the guidance and updated country material to assess the accepted individual facts. Its conclusions rested on objective considerations rather than a marginal preference for a different result. Permission to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division). By [2004] EWCA Civ 56, the court dismissed all four conjoined appeals against the Immigration Appeal Tribunal and refused permission to appeal to the House of Lords.
• Immigration Appeal Tribunal. In each case the Tribunal allowed the Secretary of State’s appeal and reversed an adjudicator’s allowance of the asylum or human-rights appeal. In Nagulananthan’s case, an earlier Tribunal had allowed his appeal from the first adjudicator because material evidence had been overlooked and had ordered a rehearing before a different adjudicator.
• Adjudicators. The operative adjudicator in each case allowed the claimant’s appeal against the Secretary of State’s refusal of asylum or human-rights protection. Nagulananthan’s first appeal had initially been dismissed before the earlier Tribunal ordered a rehearing.