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

Excessive delay between a hearing and a tribunal’s decision does not by itself render the decision unsafe. The appellant must show a causal connection between the delay and a possible error which makes it unjust to allow the decision to stand.

In an asylum appeal involving credibility, a delay exceeding three months is a marker requiring particularly careful scrutiny of the factual findings. It creates no presumption in favour of a rehearing. Credibility should ordinarily be assessed from the content of the evidence, its internal consistency, its plausibility and its compatibility with independent material. Significant reliance on a witness’s demeanour is unreliable and risks introducing bias, especially when evidence is interpreted or given across cultural boundaries.

The appellant, a Sri Lankan national, claimed asylum on the basis that he had been detained and tortured because of suspected LTTE involvement. The Secretary of State rejected his account as incredible. The First-tier Tribunal dismissed his appeal after considering his oral, documentary and medical evidence. Its decision was completed four months after the hearing and promulgated later because of an administrative error.

The Upper Tribunal dismissed a further appeal, holding that the delay had not caused any material error of law. Permission for a second appeal was granted to clarify whether an unwritten rule made a First-tier Tribunal credibility decision unsafe whenever more than three months elapsed between oral evidence and determination. A further argument alleged that the First-tier Tribunal should have relied on the appellant’s demeanour when assessing credibility.

1. The appeal was dismissed unanimously. Excessive delay in preparing or promulgating a judgment or tribunal decision is not independently sufficient to have the decision set aside. The appellate court or tribunal must ask whether the delay caused the decision to become unsafe, so that allowing it to stand would be unjust. A rational nexus must be shown between the delay and a possible error in the decision.

2. There is no special rule for asylum appeals in which credibility is disputed. Nor is there an unwritten Upper Tribunal practice under which a delay exceeding three months automatically renders an adverse credibility decision unsafe. The earlier guidance in Sambasivam did not establish a binding rule or continuing presumption that such cases should be remitted unless the outcome must inevitably be the same.

3. Three months nevertheless remains an appropriate practical marker. Once delay exceeds that period, the Upper Tribunal should scrutinise the First-tier Tribunal’s factual findings with particular care. Relevant circumstances include whether the judge retained adequate notes, whether findings depended on remembered oral evidence or demeanour, and whether the reasoning instead rested on documentary evidence, inconsistencies or objectively verifiable facts.

4. No causal link was established here. The grounds identified no oral evidence which the First-tier Tribunal had misremembered and no material point which it had overlooked. Its detailed treatment of the medical evidence showed that the evidence had been considered, while its credibility findings rested on numerous inconsistencies and improbabilities rather than demeanour.

5. Although the demeanour argument was not properly before the court, Leggatt LJ explained that the First-tier Tribunal’s limited reliance on demeanour was a merit. Appearance, manner, hesitation and tone ordinarily provide an unreliable basis for deciding whether testimony is truthful. The danger is greater where evidence is given through an interpreter or across cultural boundaries. The objective and reliable approach is to examine the testimony’s content, plausibility and internal consistency, and its consistency with other evidence and known or probable facts.

1. Court of Appeal (Civil Division): The second appeal was dismissed by [2018] EWCA Civ 1391. The court confirmed that the Upper Tribunal had applied the correct causal-nexus test.
2. Upper Tribunal (Immigration and Asylum Chamber): The appeal was dismissed in a decision promulgated on 17 September 2015. The delay had not made the credibility findings unsafe and disclosed no material error of law.
3. First-tier Tribunal (Immigration and Asylum Chamber): The asylum appeal was dismissed. The tribunal found the appellant’s account of arrest, torture and future risk incredible after considering his oral, documentary and medical evidence.