SS (Refugee Claim) Sri Lanka [2004] UKIAT 00087 (28 April 2004)


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United Kingdom Asylum and Immigration Tribunal
You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> SS (Refugee Claim) Sri Lanka [2004] UKIAT 00087 (28 April 2004)
URL: http://www.bailii.org/uk/cases/UKIAT/2004/00087.html
Cite as: [2004] UKIAT 00087, [2004] UKIAT 87

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    APPEAL No. SS (Refugee Claim ) Sri Lanka [2004] UKIAT 00087

    IMMIGRATION APPEAL TRIBUNAL

    Date of hearing: 9 February 2004

    Date Determination notified: 28 April 2004

    Before

    Mr C M G Ockelton (Deputy President)
    Mr A Jordan (Vice President)
    Miss B Mensah (Vice President)

    Between

     

    SS APPELLANT
    and  
    Secretary of State for the Home Department RESPONDENT

    DETERMINATION AND REASONS

  1. The Appellant, a citizen of Sri Lanka, appeals with permission against the determination of an Adjudicator, Mr D C Gerrey, deciding that his appeal should be treated as abandoned. Before us today, he is represented by Mr O'Callaghan, instructed by Theva & Co and the Respondent is represented by Miss Bracken.

  2. As will be apparent from our description of it, the Adjudicator's determination is of an unusual nature. The Appellant applied for asylum on his arrival in the United Kingdom and was granted exceptional leave to remain, expiring on 22nd December 2004 which is the day before he achieves majority. Despite the grant of leave, the Appellant claims to be entitled to be recognised as a refugee. Before the Adjudicator it was clear that there were considerable lacunae in the evidence supporting that claim. There was an application for an adjournment, not resisted by the Secretary of State but, which the Adjudicator thought in the circumstances of the case was not appropriate. The final paragraph of his determination reads as follows;

    3. "Having considered the application with both representatives and having considered the alternatives, I was reluctant to grant the adjournment particularly since it was difficult to put any timescale on investigations which might have to be conducted in Sri Lanka. In view of the fact that the Appellant had been granted leave to remain for the next two years, was ample time for investigations to be carried out without the appeal remaining listed. In any event, if removal directions were set in December 2004, the Appellant would then have a fresh right of appeal on human rights grounds. It was agreed with the representatives that, in all the circumstances, there was little point in adjourning the appeal when there was no indication as to when it would be ready for hearing. It was felt preferable for the Appellant to have ample time to prepare a fresh appeal when all evidence was available, whether before or at the same time as any human rights appeal might arise. In the circumstances, both representatives agreed that I should treat the appeal as abandoned, and I agreed that this was an appropriate course.
    Decision. Appeal treated as abandoned".
    And the Adjudicator's signature follows.
  3. We are entirely confident that that paragraph indicates a serious misconception about both the Appellant's appeal and the decision of the Court of Appeal in Saad, Dirye and Osorio [2002] Imm AR 34. As Saad's case rules, and as the phraseology of both Section 69(5) and Section 58(9) made clear, the question of whether a person is a refugee is to be determined independently of any grant to remain on human rights or exceptional grounds.

  4. The Adjudicator's decision in the present case effectively deprived the Appellant of his right, in an appeal which was then pending, to assert that (whatever else the Secretary of State might grant him) he was entitled to recognition as a refugee. We note the Adjudicator's record of both parties agreeing the course of action he proposed. It is clear to us that there was on one, two or three sides some misunderstanding about what precisely was being proposed and what was agreed. In the circumstances, we do not consider that the Tribunal or the parties are bound by the agreement which is there apparently recorded.

  5. The Appellant's asylum appeal therefore remains outstanding and needs to be heard by an Adjudicator. No doubt the parties will bear in mind that there has now been a very considerable period of time since the Adjudicator's determination. It must be that any evidence which is ever going to be available to support the Appellant's asylum claim either is now ready or very shortly will be ready.

  6. In any event, this appeal is allowed and we direct that the Appellant's appeal be heard afresh by an Adjudicator with the consent of the parties. We indicate that that should be Mr Gerrey if that is reasonably practicable.

    7. C M G OCKELTON
    DEPUTY PRESIDENT

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