The decision

jls Appeal No: CC22728-2001
[2002] UKIAT05869


Date of Hearing: 3rd October 2002
Date Determination notified:

2 January 2003


Miss K Eshun (Chairman)
Mrs A J F Cross de Chavannes




Secretary of State for the Home Department

For the Appellant: Mr N Wray, Counsel, instructed by Lawrence Lupin Solicitors
For the Respondent: Mrs M Walton, Home Office Presenting Officer


1. The Appellant, a citizen of Sri Lanka, appeals, with leave of the Tribunal, against the determination of an Adjudicator (Mrs S J Frudd) dismissing her appeal against the decision of the Respondent made on 10th January 2001 to refuse her leave to enter and asylum.

2. As the certification of the Appellant’s asylum claim was upheld by the Adjudicator, the Appellant now has only a right of appeal against the dismissal of her human rights claim in the light of the Court of Appeal decision in Zenovics.

3. The relevant grounds of appeal state as follows:

“2. As a matter of law, the Appellant has a right of appeal to the Immigration Appeal Tribunal on the human rights claim. The IAA, therefore, erred in law in stating that no right of appeal existed.
3. This is material in that the Immigration Appeal Tribunal is entitled to take into account fresh evidence that was not before the Adjudicator. In the instant case, the Tribunal would be entitled to take into account the contents of the video presented to the Adjudicator, but which the Adjudicator refused to admit.”

4. In granting leave, the Vice President said that the grounds of appeal, particularly relating to the failure to view the video presented, appear to give rise to an arguable basis for an appeal to this Tribunal.

5. Counsel submitted that the video evidence was corroboration of the Appellant’s brother’s martyrdom in the LTTE. It was relevant to the assessment of the Appellant’s credibility, which the Adjudicator was not satisfied about.

6. Counsel accepted that, although no medical report has been obtained to support the Appellant’s allegation of rape, a psychiatric report has now been obtained. Counsel submitted that whether or not the Appellant has a family member who is currently a member of the LTTE becomes a real issue on risk of persecution on return. If there is corroborative evidence which was not considered, then the negative findings of the Adjudicator would not be safe.

7. Mrs Walton submitted that this is the first time ever we have heard of a psychiatric report. There was ample time before today to bring forward supporting evidence as to what happened to the Appellant in the past. Such evidence is now too late to be considered. Rape was never raised at her interview. The grounds of appeal did not even mention the rape and did not even mention which Articles of the Human Rights Act were going to be argued before the Tribunal. In the circumstances, she would ask that this evidence is not accepted.

8. As regards the video evidence, Mrs Walton said that it takes us no further forward. We have before us everything the Appellant had to say. Her family member was involved with the LTTE and that she was raped. The Adjudicator found that evidence not credible and found that she did not qualify for asylum. Even if we saw the video and accepted that her brother was on the video, a concord has been reached between the LTTE and the government and this means that the Appellant will not be at risk on return. Furthermore, the Appellant today is expecting a child. Her circumstances now are completely different to when she left Sri Lanka. There is no reason to suggest that she would be in any way at risk.

9. Counsel submitted that the grounds of appeal and the grant of leave acknowledges that there has been a failure to account for significant evidence. Therefore the negative finding by the Adjudicator is unsafe. Whether or not her brother was involved with the LTTE is a live issue. The psychiatric report is relevant in the assessment of the Appellant’s credibility. It is generally accepted that some women have some reservation about talking about rape.

10. The Tribunal decided to clear the courtroom in order to deliberate on the issues presented to us. Having done so, we informed all parties that even if the video was viewed and the Adjudicator accepted that the Appellant had been raped, this evidence did not take the appeal any further forward. Therefore, in the interests of justice we were going to proceed with the hearing of this appeal rather than remitting it to be heard afresh by another Adjudicator.

11. First of all we need to establish whether video evidence was actually presented to the Adjudicator. We have examined closely the assertion in the grounds that the video was presented to the Adjudicator but she refused to admit it. At paragraph 37(ix), the Adjudicator states:

“The Appellant claims she has visited the LTTE offices in London and indicates there is a video containing details of her dead brother. I attach no weight to this evidence as the Appellant should have made the video available at the hearing to corroborate her assertion.”

12. In the Adjudicator’s record of proceedings, the Appellant is asked in examination-in-chief whether she has a fear of return and/or of being raped again. The Appellant’s reply is “In addition, I could be arrested as my younger brother was in the LTTE and has since died. In a video which is widely available are details of my brother and all details about us, name and other things are there. The video may be in the possession of the army. “ In cross-examination, it was put to the Appellant that “The mention about the video was new evidence, wasn’t it?” and the Appellant asked “When?” It was then said to her that the video was not mentioned at interview and asked why she was mentioning it now. She said that “It was only when I came here and got a video cassette it will be proof” The next question was “Video, like rape, has turned up since you have been turned down by the Home Office”. The Appellant’s reply was “When I arrived here, I obtained the video in order to take it to court”.

13. In paragraph 37(ix), considered the Appellant’s claim as to the content of the video evidence and attached no weight to it for the reason that the video should have been made available at the hearing to corroborate her assertion. It is this Tribunal’s view that this evidence does not show that the video was actually produced in court. There is also no evidence in the record of proceedings that the contents of the video was presented to the Adjudicator and that she refused to admit it. Indeed, we find that ground 3 is in itself contradictory. In effect, it says that the Immigration Appeal Tribunal is entitled to take into account fresh evidence that was not before the Adjudicator and then, on the other hand, claims that the contents of the video were presented to the Adjudicator but she refused to admit it. Either the evidence was put before the Adjudicator, or it was not. On our examination of the evidence, we find that, although the Adjudicator was told about the content of the video by the Appellant in oral evidence, and that this evidence was recorded by her in paragraph 23 of her determination, we find that the actual video itself was not placed before the Adjudicator for viewing.

14. We now turn to Counsel’s submissions in relation to the Appellant’s human rights claim. He submitted that it would be a breach of Articles 3 and 8, namely, the Appellant’s physical and moral integrity to remove her to Sri Lanka. The UNHCR letter which says that an Appellant who has a family member currently in the LTTE or who has been a member of the LTTE in the past, is still relevant. It is not the case that no Tamil is at risk of persecution if returned; there have to be exceptional factors. Although Counsel accepted that the peace process is underway and this was considered in Brinston, as also the UNHCR letter, because the Appellant had a family member who was a member of the LTTE, she falls into the exceptional category.

15. Mrs Walton submitted that the Appellant is one of a number of thousands of displaced people since the start of the conflict, which is now resolved. There is an accord between the government and the rebels. Despite how individual the Appellant is, there is nothing to bring her within the recommendation of the UNHCR. She left Sri Lanka and arrived here without difficulty. Her asylum appeal before the Adjudicator has been dismissed. This finding goes hand in hand with the Article 3 determination, given the finding by the Adjudicator of the lack of credibility of her claim. There is no fresh evidence today that changes that.

16. In relation to Article 8, Mrs Walton submitted that we do not have any evidence as to what family has been established here. The Appellant has family in Sri Lanka. There are no insurmountable obstacles to the Appellant returning to her country of origin where she was born and raised, and to the bosom of her family without risk.

17. Counsel responded by saying that the Appellant’s claim under Article 8 is in relation to her moral and physical integrity. There is the psychiatric evidence which is of significance. The Adjudicator did not give sufficient weight to the Appellant’s brother’s involvement with the LTTE, which would have put her in the exceptional category.

18. The Tribunal then reserved its determination.

19. The Tribunal finds that Counsel’s arguments on the safety of the Adjudicator’s credibility findings impinge on her determination of the asylum appeal. His arguments were largely based on the video evidence and the psychiatric report.

20. Firstly, the Tribunal has no jurisdiction to re-open the determination of the asylum appeal given the fact that the certification of that claim was upheld by the Adjudicator. Any flaws in that determination can only be subject to judicial review.

21. Secondly, having found that the video was not presented to the Adjudicator for viewing, and having found that evidence about the content of the video was fully considered and found not to be credible by the Adjudicator, it is our view that the video evidence was not new evidence.

22. In the light of Kacaj, the standard of proof in an asylum appeal is the same when considering an Article 3 claim.

23. Although the Adjudicator did not, in paragraph 37(viii) accept that the circumstances of the Appellant’s rape fitted in with her original story, she did, in paragraph 39, make the finding that the alleged rape was not reported to the police so therefore they were not given an opportunity to investigate the allegation. It can be implied from this that the Adjudicator accepted that the Appellant was raped by one of the soldiers who visited the family, sometime between October 1999 and April 2000. We accept that this was degrading treatment in breach of Article 3. However, in the light of the current circumstances prevailing in Sri Lanka, we do not believe that this is likely to happen again were she to return to Sri Lanka. If, in any event, it did happen again, we find that the authorities would be able to offer her adequate protection.

24. As regards the issue of her brother having been a member of the LTTE, it is apparent from the determination that the Adjudicator did not accept that evidence. We find that the Adjudicator was entitled to make that finding in the light of the evidence before her. Nevertheless, even if he was, again in the light of the peace process, the lighting of the ban on the LTTE and the opening of offices by the LTTE, we do not believe that the Appellant is likely to suffer ill-treatment amounting to Article 3 as a result of her brother’s involvement with the LTTE, were she to return to Sri Lanka. The appellant is therefore not an exceptional case.

25. We now turn to Article 8 of the ECHR. We note that this was being raised by Counsel for the very first time. We also note that Counsel did not argue a breach of family life in the United Kingdom. Given that it was not an issue at the date of the Respondent’s decision, it was wise of Counsel not to raise it before the Tribunal as it is not an issue that we could have considered in the light of s 77(4) of the 1999 Act. Counsel based his arguments solely on a breach of the Appellant’s physical and moral integrity in the light of the psychiatric report that has now been obtained. The report was written on 5th August 2002, some nine months after the hearing of the appeal by the Adjudicator.

26. The psychiatrist says that the Appellant describes chronic symptoms following an alleged rape occurring about two years ago. The psychiatrist opined that the Appellant provided a consistent and coherent account of herself and her alleged assault while in Sri Lanka. The Tribunal has already accepted that by implication the Adjudicator accepted that the Appellant was raped.

27. The psychiatrist is then of the view that because of the Appellant’s pregnancy, her psychological symptoms should be dealt with psychologically and non-pharmacologically. The Appellant is not keen to take medication of any kind for fear of harming the baby and although it is possible to take SSRI type anti-depressants in the third trimester of pregnancy without fear of teratogenesis, it is also understandable that the Appellant would prefer not to do so. The psychiatrist therefore recommended that the Appellant receives psychological work from her local psychiatric services, which her own GP should be able to organise. At the time of the hearing of this appeal, we had no evidence that the Appellant was receiving any psychological work from her local psychiatric services. Furthermore, we had no evidence that such treatment would not be available to her in Sri Lanka. In the circumstances, we have no reason to believe that the Appellant’s physical and moral integrity would be breached were she to be removed to Sri Lanka.

28. Accordingly, her human rights claim is dismissed.

Miss K Eshun
Vice President