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

Delay in preparing or promulgating a tribunal determination does not by itself make the determination unlawful. An appellate court must identify a rational connection between the delay and the safety of the decision.

Where important credibility issues depend on recollection, a delay exceeding three months will ordinarily justify a rehearing unless particular circumstances make the same outcome inevitable. That rule of thumb does not apply where credibility was not in issue, the case was decided on written material and the tribunal adequately addressed the parties’ submissions. Loss of confidence by the unsuccessful party is insufficient without objective grounds for doubting the determination.

The Secretary of State appealed against an Immigration Appeal Tribunal determination promulgated 29 months after the hearing. The determination had apparently been prepared and signed after about six months but was then misplaced.

The Tribunal rejected the Algerian respondent’s asylum claim but held that returning him as a former army officer and deserter would expose him to a real risk of treatment contrary to Article 3 of the European Convention on Human Rights 1950. Before the Court of Appeal, the Secretary of State accepted that credibility had not been in issue and abandoned the contention that later country evidence demonstrated a material improvement in conditions. The central issue was whether the delay itself rendered the Tribunal’s determination unsafe and unlawful.

1. Appeal dismissed unanimously. Delay in producing a determination is relevant only if it provides a rational reason for regarding the decision as unsafe. An appeal lies against the decision rather than against administrative delay. The Secretary of State therefore had to demonstrate a nexus between the delay and the decision’s safety or lawfulness.

2. The guidance in Sambasivam v Secretary of State for the Home Department (2000) Imm AR 85 concerns cases in which important credibility findings may have become unsafe because the decision-maker’s recollection has faded. A delay exceeding three months then ordinarily merits a rehearing unless particular circumstances make clear that the outcome must be the same. It remains a rule of thumb rather than a rule that every delayed immigration determination must be set aside.

3. Credibility was not in issue in this case. The respondent gave no oral evidence, and the appeals were determined from written material and oral submissions. The Secretary of State could not contend that the Tribunal had failed adequately to address those submissions. A six-month delay before preparation, even when followed by a gross delay before promulgation, therefore disclosed no reason to doubt the determination’s safety. The unsuccessful party’s loss of confidence could not replace objective legal analysis.

4. The contention that circumstances in Algeria might have improved during the delay had been abandoned and was hypothetical. In any event, a party could have sought permission to place further material before the Tribunal prior to promulgation. Save in exceptional circumstances, the judicial consideration of updated evidence ends when the Tribunal’s determination is promulgated. Any finite grant of protection could later be reviewed in light of circumstances then prevailing.

1. Court of Appeal (Civil Division): By [2007] EWCA Civ 868, unanimously dismissed the Secretary of State’s appeal. The delay was not shown to have rendered the Tribunal’s determination unsafe or unlawful.

2. Immigration Appeal Tribunal: Following a hearing on 3 March 2004, its determination was promulgated on 24 August 2006. It allowed the Secretary of State’s appeal against the adjudicator’s asylum ruling but allowed the respondent’s cross-appeal under Article 3 of the European Convention on Human Rights 1950.

3. Adjudicator: By a determination promulgated on 2 April 2002, upheld the respondent’s asylum appeal but dismissed his human-rights appeal.