NR (Sri Lanka) v Secretary of State for the Home Department

On an application for permission to appeal, a ground is arguable where a tribunal may have exceeded its powers in re-evaluating an earlier asylum grant, rather than determining the later claim on its own evidence. It is also arguable that procedural fairness was denied where an adjournment to call a material witness was refused and the tribunal later relied on the witness’s absence. The court may require reliable evidence of what occurred below before deciding such a ground. A strongly interventionist hearing conducted by one member of a panel may raise concern that the determination is not genuinely that of the panel, although that concern is not necessarily a separate ground of appeal.

The appellant, a Sri Lankan Tamil woman, claimed asylum in the United Kingdom based on alleged LTTE connections, detention and torture. Her appeal was initially dismissed and reconsideration was ordered. A two-judge Asylum and Immigration Tribunal again dismissed the appeal, finding her account fabricated.

A senior immigration judge refused permission to appeal. The appellant renewed her application before the Court of Appeal, challenging the tribunal’s treatment of her brother’s earlier successful asylum claim, its refusal to adjourn so that he could give evidence, and its allegedly unjustifiably hostile approach to the evidence.

1. Application granted. The court granted the renewed application for permission to appeal.
2. The tribunal’s treatment of the brother’s earlier asylum grant raised an arguable issue. The court distinguished between refusing to allow one claim simply to run piggy-back on another and treating the earlier grant as though it might have been mistakenly made. The latter approach was arguably beyond the tribunal’s power.
3. It was also arguable that the tribunal had refused an adjournment sought, among other reasons, to call the brother and had then relied on his absence when assessing the appellant’s credibility. The tribunal had arguably cast inappropriate doubt on the brother’s claim and veracity.
4. Before deciding the adjournment ground, the court required reliable evidence of what had occurred before the tribunal. The Presenting Officer’s note was not determinative in the face of the advocate’s contemporaneous note. If the accounts conflicted, the advocate could not conduct the appeal while also giving evidence.
5. The determination’s strongly hostile approach, including the reasoning at paragraphs 117 to 118 and paragraph 120, was arguably unjustifiable and capable of unsettling its overall evaluation of the evidence. The apparent conduct of the hearing by one member of a two-judge panel increased that concern, but was not treated as a discrete ground of appeal.

• Asylum and Immigration Tribunal: On reconsideration, Immigration Judges Vaudin and Cameron dismissed the appellant’s appeal in [AIT No: AA/04277/2007], finding her account lacking in credibility and fabricated.
• Court of Appeal (Civil Division): A senior immigration judge refused permission to appeal. Lord Justice Sedley granted the renewed application for permission to appeal.