Subesh & Ors v Secretary Of State For Home Department

Factual and Procedural Background

These conjoined appeals challenge four decisions of the Immigration Appeal Tribunal ("the IAT"), each allowing an appeal by the Secretary of State against earlier determinations by Adjudicators who had allowed appeals by appellants against the Secretary of State's refusals of asylum and/or human rights claims. The appellants are Tamil asylum-seekers from Sri Lanka. Permission to appeal was granted at various times in 2003 by different judges. The appeals were consolidated to address two related points concerning the jurisdiction and functions of the Adjudicators and the IAT under the Immigration and Asylum Act 1999 ("the 1999 Act").

The primary issue was whether there are any constraints on the IAT's power or duty to overturn factual conclusions made by the Adjudicator. The secondary issue concerned whether an Adjudicator's failure to refer to or properly apply the IAT's prior decision in Jeyachandran [2002] UKIAT 01689, which set out an "exceptionality" test for Tamil asylum seekers from Sri Lanka, constituted an error justifying the IAT's intervention. The court ultimately regarded this secondary issue as illustrative of the primary issue rather than a separate matter.

The background to these cases involves the ongoing conflict in Sri Lanka between Tamils and Sinhalese, particularly between the LTTE ("Tamil Tigers") and the Sri Lankan authorities, and the evolving peace process. The Jeyachandran decision reflected the IAT's view in June 2002 that while the situation was improving, only exceptional Tamil asylum seekers would be unable to return safely to Sri Lanka.

The four appellants' individual factual circumstances were detailed, including their involvement or alleged involvement with the LTTE, experiences of detention, ill-treatment, torture, escape, and journeys to the United Kingdom where they claimed asylum. Each appellant's asylum claim was initially allowed by an Adjudicator but subsequently overturned by the IAT on appeal by the Secretary of State.

Legal Issues Presented

1. What, if any, are the constraints or restrictions upon the power or duty of the Immigration Appeal Tribunal to overturn conclusions of fact arrived at by the Adjudicator?
2. Whether an Adjudicator's failure to refer to or properly apply the IAT's decision in Jeyachandran amounts to an error justifying the IAT's intervention on appeal in Tamil asylum cases from Sri Lanka.

Arguments of the Parties

Appellants' Arguments

• The IAT may only overturn an Adjudicator's factual determination if it is "plainly wrong or unsustainable" or outside the "generous ambit within which a reasonable disagreement is possible".
• The IAT's decisions in these cases did not meet this threshold and thus must be set aside.
• Relied on case law including Oleed [2003] IAR 499 and Tanfern Ltd [2000] 1 WLR 1311 to support the above test.
• Emphasized the observations of Hale LJ in Indrakumar [2003] EWCA Civ 1677 that the IAT can only interfere if there has been an error by the Adjudicator, not merely because it disagrees.
• Argued that the difference between "mere disagreement" and "error" is critical and that the IAT's interventions in these appeals amounted only to disagreement.

Respondent's Arguments

• Supported the IAT's approach and decisions to overturn the Adjudicators on objective grounds.
• Submitted that the IAT is empowered by statute to hear appeals on fact as well as law and may substitute its own view where justified.
• Pointed to the importance of the IAT's role in providing consistent guidance on country conditions, exemplified by the Jeyachandran decision.
• Argued that the Adjudicators' failures to properly apply Jeyachandran justified the IAT's intervention.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by confirming that appeals from Adjudicators to the IAT under paragraph 22 of Schedule 4 to the 1999 Act include both fact and law, granting the IAT broad jurisdiction to reconsider factual findings. The court rejected the appellants' argument that the IAT may only overturn factual findings if they are "plainly wrong or unsustainable" or outside a "generous ambit" of reasonable disagreement, concluding that this is not a jurisdictional limit but rather a practical approach.

The court examined key authorities, including Montgomerie, which emphasized respect for lower tribunal findings especially on witness credibility, but acknowledged that appellate courts may draw their own inferences where appropriate. It distinguished cases limited to points of law, such as Edwards v Bairstow, as inapplicable here.

The court considered the categorization of evidential issues in Indrakumar, recognizing that findings based on oral testimony are less likely to be disturbed than those based on documentary evidence or general country conditions, where the IAT may be as well placed as the Adjudicator to assess the facts. The court underscored the IAT's role in ensuring consistency and providing authoritative guidance on country conditions, as exemplified in Jeyachandran and S and Others.

Central to the court's reasoning was the principle of finality in litigation, which imposes on appellants the burden of showing objective grounds that justify concluding a different view from that taken below is the correct one. This is more than a mere disagreement; it requires that the appeal court's reasoning and application of law compel it to adopt a different conclusion.

Applying these principles, the court found that the IAT had properly exercised its jurisdiction in each case by identifying objective grounds to depart from the Adjudicators' findings, including failures to properly apply the Jeyachandran decision or to consider recent changes in Sri Lanka's political and security situation. The court noted that the Adjudicators' determinations sometimes failed to reflect the updated country conditions or the authoritative guidance of the IAT, justifying the IAT's intervention.

The court acknowledged some procedural imperfections, especially in the handling of one appellant's case, but concluded these did not amount to legal error sufficient to overturn the IAT's decisions. It also observed that the appeals concern a transitional period before legislative changes confined IAT appeals to points of law only, which may limit the future relevance of these issues.

Holding and Implications

The court dismissed the appeals.

The court held that the IAT has a broad jurisdiction to hear appeals on fact as well as law under the 1999 Act and may overturn Adjudicators' factual findings where there are objective grounds to do so, not merely because of disagreement but because the reasoning and law require a different conclusion. The court confirmed that the Jeyachandran decision functions as an authoritative factual precedent guiding the assessment of Tamil asylum claims from Sri Lanka, and the IAT is entitled to ensure consistency by requiring Adjudicators to apply it unless justified by changed circumstances.

The direct effect is that the IAT's decisions allowing the Secretary of State's appeals in these four cases stand. The court noted that the issues are of historic interest given legislative reforms limiting appeals to points of law. No new precedent altering the legal framework was established; rather, the judgment clarifies the proper scope of the IAT's jurisdiction and the nature of appellate review in immigration appeals.