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Failure to explicitly consider delay is error of law says Court of Appeal


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Immigration practitioners will be familiar with being told that when trying to appeal against a determination of the First-tier Tribunal it is not necessary for the Tribunal judge to address every matter raised by an Appellant in the written judgment. Yet, in KG (Turkey) v Secretary of State for the Home Department [2022] EWCA Civ 1578, the Court of Appeal has ruled that the First Tier Tribunal must provide explicit reasons for rejecting a point raised by the Secretary of State where it concerns Section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004.

The issue arose after the First-tier Tribunal allowed KG’s appeal. The Secretary of State relied on KG’s delay in raising his asylum claim as a factor which diminished the credibility of his account. The Tribunal made only passing reference to the delay in its written determination. It did not give detailed reasons for finding KG to be credible despite the delay, although it did give detailed reasons about credibility in general.

At first glance, one would expect that the normal guidance on not reading Tribunal determinations with a fine-tooth comb in order to identify errors would come into play. Instead, the Upper Tribunal found an error of law and remade the appeal against KG.

Sadly for KG, the Court of Appeal agreed with the Upper Tribunal. Lady Justice Andrews said:

I accept that the s.8 factors are to be taken into account as part of a holistic assessment of credibility – the [Upper Tribunal] Judge’s own approach when re-making the decision is a good example. So long as it is clear that the decision maker has specifically considered the potentially adverse impact of the relevant period of delay upon credibility, and has given a sufficient explanation for finding that the delay is (or is not) damaging, there is no need for specific mention of the statute or its requirements.

However I reject Mr Ball’s criticism of the [Upper Tribunal] judge’s approach as requiring s.8 considerations to be “compartmentalised”. That was not what she was saying at all. Her complaint about the [First-tier Tribunal] decision was not that the s.8 factors required separate consideration, but rather that, in her overall assessment of credibility, the [First-tier Tribunal] judge had failed altogether to address the [Secretary of State’s] key concern about the timing of the claim, and failed to give any reasons for rejecting that concern or for regarding the delay as having less of an adverse impact on credibility than it might otherwise have done.

Those representing appellants have no control over what a judge chooses to refer to in their written judgment. In light of this appeal, and upon receipt of a positive determination in which a judge has given otherwise comprehensive reasons but failed to deal with a Section 8 point raised by the Secretary of State, it might be wise to ask the judge to correct the judgment under the slip rule to avoid a further appeal by the Secretary of State.

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Alex Schymyck

Alex is a barrister at Garden Court Chambers