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Less is more: tribunal criticised for overly long judgments


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A client’s statement “I was foolish to…” in a witness statement is sometimes the starting point for the submission “My client is not clever enough to lie/to lie to the extent alleged by the Respondent”. It is an uncomfortable submission to make in the presence of a client but it can feel as though it is the most likely explanation for problems with the client’s evidence.

In R(PA)(Iran) v Secretary of State for the Home Department [2018] EWCA Civ 2495 the Court of Appeal considered a case in which the First-tier Tribunal judge concluded that, applying the Devaseelan principles, psychiatric and psychological evidence of cognitive impairment did not displace the adverse findings made by the First-tier Tribunal judge in the previous appeal, who had not had the benefit of such evidence.

The case was ultimately decided for the appellant, represented by Amanda Weston QC, on the basis that the First-tier Tribunal judge had misunderstood the psychiatric and psychological evidence as evidence of a severe cognitive impairment inconsistent with the sophisticated appeal statement. Thus he thought that the experts had been fooled by the appellant, whereas the evidence was of a “mild” but significant impairment. 

The First-tier Tribunal judge is described as “setting his face against the Appellant” whom he described as having “cynically manipulated” the legal system and medical evidence.  The Court of Appeal concluded that had the First-tier Tribunal judge correctly understood the medical evidence, he might have formed a different view of credibility. The judgment is thus instructive as to the role that evidence of mild cognitive impairment can play in a determination.

[ebook 17797]

The case involved a Kurdish child who claimed to have been smuggling alcohol across the Iran /Iraq border. An increasing number of cases from this region are reaching the tribunals. A significant number involve children, and involve smuggling. Refusal letters frequently show what appears to be a wilful misunderstanding of the terrain and the nature of operations. The border is highly porous; groups cross back and forth every day. Goods are left in the sand to be retrieved. Protection rackets operate and are no doubt a source of considerable profit; border patrols aim only to disrupt, not to put a stop to, this trade, including by the use of lethal force. The Home Office country information is superior to its refusal letters on these issues.

The case contains the postscriptum:

There is an increasing tendency for First-Tier judgments to be overly long and to contain unnecessary detail. This can, itself, cause problems of consistency and cogency. Laborious recitation of every piece of evidence is not necessary or desirable and simply adds to the already heavy burden on First-Tier judges. It is only necessary to refer to evidence that is relevant to the issue or issues for determination. Length is no substitute for analysis.

This could as well be a description of refusal letters as of First-tier Tribunal determinations. Faced with these compendious refusal letters, with expert reports and bundles that take “weight” of evidence literally and, having typed in every submission during the hearing, some First-tier Tribunal judges hesitate to discard any of this material. EIN’s bundle maker, a treasure in the right hands and the bane of every advocate’s existence in the wrong ones, plays its part, and submitting our skeletons in word form in advance of the hearing is also designed to ensure that as much of them as possible finds its way into the determination. A vicious circle is created. And because First-tier Tribunal determinations are not reported, examples of excellence are not as well-known as their quality merits.

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Alison Harvey

Alison Harvey is a barrister at No 5 chambers. She accepts both instructions from solicitors and direct access work. She regularly trains and lectures. She is Chair of Trustees at Kalayaan. She is a contributor to Fransman's British Nationality Law and to Macdonald's Immigration Law and Practice. A former General Secretary and then Legal Director of the Immigration Law Practitioners' Association, she has specialised in immigration, asylum, nationality, free movement and human rights for over 20 years, representing individuals and working on policy and legislation in both the the UK and overseas.


2 Responses

  1. It doesn’t help that determinations aren’t written with the Appellant in mind – but to be read by other lawyers. There have been some fantastic judgements in the family court written in appropriate language for those taking part in the case (https://www.bailii.org/ew/cases/EWFC/OJ/2018/B12.html). I do wonder what the effect would be if immigration judges had to take the same approach to child appellants.