The decision

Heard at: Field House

On: 12 July 2004

RS (Appeal ambit following statutory review) Sri Lanka [2004] UKIAT 00234


Date Determination notified:

24 August 2004


Mr J Freeman (Vice President)
Mr P R Moulden (Vice President)
Mr C H Bennett




Secretary of State for the Home Department



1. The appellant is a citizen of Sri Lanka who has been given permission to appeal the determination of an Adjudicator, Mr J R Devittie, dismissing on both Refugee Convention and human rights grounds his appeal against the respondent's decision to give directions for his removal from the United Kingdom following the refusal of asylum.

2. Mr M Murphy of Counsel instructed by Jeya & Co, Solicitors, appeared for the appellant. The appellant attended the hearing. Mr A Hutton, a Home Office Presenting Officer, represented the respondent.

3. The appellant arrived in the United Kingdom and claimed asylum on 13 July 2000. The notice containing the decision against which he appeals is dated 24 November 2000. The Adjudicator heard the appeal on 5 November 2003. A Vice President of the Tribunal refused permission to appeal but, on an application for statutory review, Gage J, reversed this decision.

4. A preliminary point arose as to the scope of the grounds of appeal which Mr Murphy was entitled to argue on behalf of the appellant.

5. In refusing permission to appeal the Vice President said,

"The claimant's account is that he cannot return to his village because he collaborated with the authorities in 2000 while detained. He betrayed secret LTTE locations to the army under torture. Even taken at its highest, that claim does not oust the possibility of internal flight to Colombo. There is no evidence that the LTTE are engaging in revenge killings there. These grounds of appeal do not disclose any error of law which would have made a material difference to the outcome of the appeal. There is no other compelling reason for the appeal to be heard."

6. Gage J in reversing this decision gave the following reasons,

"1. The application for review is out of time by a very small margin. I extend time.

2. The reasons for refusal of leave given by the IAT do not address the main ground of appeal based, as it is, on the case of Selvaratnam [2003] EWCA Civ 121. I consider that ground of appeal against the Adjudicator's decision is arguable."

7. There are four grounds of appeal. Grounds 1 and 2 relate to risk on return at the hands of the authorities and raise Selvaratnam points. Grounds 3 and 4 relate to risk at the hands of the LTTE and ground 5 to alleged breaches of Articles 3 and 8 in the light of the psychiatric evidence and the allegation that the appellant was receiving ongoing psychological care. Mr Murphy sought to argue the points relating to risk at the hands of the LTTE but made no mention of the fifth ground of appeal.

8. The application to the Administrative Court for Statutory Review was made under the powers contained in Section 101 of the Nationality, Immigration and Asylum Act 2002 which provides,

"(1) A party to an appeal to an Adjudicator under Section 82 or 83 may, with the permission of the Immigration Appeal Tribunal, appeal to the Tribunal against the Adjudicator's determination on a point of law.

(2) A party to an application to the Tribunal for permission to appeal under sub-section (1) may apply to the High Court or, in Scotland, to the Court of Session for a review of the Tribunal's decision on the ground that the Tribunal made an error of law.

(3) Where an application is made under sub-section (2) –

(a) it shall be determined by a single judge by reference only to written submissions;

(b) the judge may affirm or reverse the Tribunal's decision,

(c) the judge's decision shall be final, and

(d) if, in an application to the High Court, the judge thinks the application had no merit he shall issue a certificate under this paragraph (which shall be dealt with in accordance with civil procedure rules).

(4) The Lord Chancellor may by order repeal sub-section (2) and (3)."

9. We asked Mr Murphy whether he was contending that, firstly, permission was granted solely on the terms expressed by Gage J; secondly, on the terms expressed by Gage J by reference to and also taking into account the reasons given by the Vice President who refused permission to appeal; thirdly, on the basis that Gage J, by reversing the determination of the Vice President, impliedly allowed all the grounds of appeal to be argued or, fourthly, some other construction. Mr Murphy did not adopt the first or fourth alternatives but asked us to follow the second or third. He argued that the second did not rule out grounds 3, 4 and 5, whilst the third would allow all the grounds to be argued.

10. We found and ruled in favour of the first position. We can find nothing in Section 101, or in any other part of the Nationality, Immigration and Asylum Act 2002 and no other authority has been cited which persuades us that the High Court or the Court of Session cannot, when reversing the refusal of permission to appeal by the Tribunal, limit the grounds of appeal which may be argued. We concluded that paragraph 2 of the reasons give by Gage J are clear; only the Selvaratnam based grounds of appeal may be argued.

11. We also suggested to Mr Murphy that we needed to consider Rule 20 of the Immigration and Asylum Appeals (Procedure) Rules 2003 which provides,
"20 – (1) A party may vary his grounds of appeal only with the permission of the Tribunal.

(2) Where the Tribunal has refused permission to appeal on any ground it must not grant permission to vary the grounds of appeal to include that ground unless it is satisfied that, because of special circumstances, it would be unjust not to allow the variation.".

12. If our interpretation of the reasons given by Gage J is correct and he did limit the grounds which could be argued then Rule 20(2) gives us no power to vary the grounds of appeal to include a ground which he excluded. The Rule only applies where the Tribunal rather than the High Court or the Court of Session have refused permission to appeal on any ground.

13. If we are mistaken and the second alternative applies then the reasons given by Gage J need to be read in conjunction with the reasons given by the Vice President and to that extent we have power to consider a variation of the grounds of appeal under Rule 20(2). If so we conclude there are no special circumstances which would make it unjust not to allow the variation. Mr Murphy made no attempt to argue the fifth ground of appeal nor, in the light of current country conditions, is there any arguable basis on which it could be said that the Adjudicator erred in concluding that the appellant would not be at risk from the LTTE. Furthermore, as the Vice President who refused permission to appeal stated, he could relocate to Colombo.

14. As the result of our ruling the representatives argued only the Selvaratnam point in relation to risk on return at the hands of the authorities.

15. Selvaratnam was heard by the Court of Appeal in January 2003. The claimant was a Sri Lankan Tamil. The facts are set out in paragraph 3 of the judgement. After being arrested and tortured in 1995 and 1996 because of suspected association with the LTTE the claimant was again arrested in November 2000. He was held for two months and tortured until he agreed to sign two pieces of paper which he thought were confessions. He was detained and forced to work for the army on the basis that he was involved with the LTTE. He escaped after about two months in January or February 2001 before fleeing the country and coming to the United Kingdom. The Adjudicator found that claimant to be a credible witness who had clandestinely and unlawfully escaped from the custody of the authorities. The court found that in allowing the Secretary of State's appeal the Tribunal did not ask itself the correct questions. The claimant's appeal was allowed and the order of the Adjudicator restored. Whilst the judgment in Selvaratnam establishes that unlawful escape from the custody of the authorities in Sri Lanka is a factor which needs to be taken into account, we must do so in the light of the country information as it is now rather than as it was when Selvaratnam was heard. We must also take into account the particular and inevitably different circumstances of this appellant. The Adjudicator believed him and the facts of the case are set out in paragraph 2 of the determination in the following terms,

"(a) In 1990 the army accused his brother of assisting the LTTE and they shot him. After that the army became suspicious of his family. He was arrested in March 1991 and accused of assisting the LTTE. He was detained for 2½ years at Malwata camp. The camp was attacked by the LTTE in 1995. The army evacuated the camp as it had been successfully captured by the LTTE. The LTTE took over the prisoners who were previously under the custody of the army. He had to stay with other young prisoners with the LTTE. He was detained by the LTTE in the same camp for a period of two years. He was forced to do chores, like cooking and attending to injured persons. He was not happy with this work and he asked the LTTE to release him. They told him that as they had assisted him in getting out of the army jail he should assist them as well.

(b) In June 1995, he managed to escape from the LTTE camp and he returned to his home in Koddaikallauve. He remained there until, one day in 1998 he was passing through a checkpoint, and the army arrested him. They accused him of having assisted the LTTE. They soon discovered that he had been in Malwata camp and that he had thereafter been taken under the control of the LTTE when the camp was attacked. They severely ill-treated him.

(c) Because of the ill-treatment he revealed all that had happened to him after the LTTE took over the camp at Malwata. He also took the army on indications of all secret locations he had been to with the LTTE. He managed to escape from the army for one day, after he had been asked to go and collect firewood. He immediately proceeded to the house of a Muslim friend where he remained in hiding for one month until he made contact with his father. His father came to see him and told him that the army were looking for him at his house. He also informed him that the LTTE were angry with him because they were aware that he had divulged information to the army. His father told him in no uncertain terms that he could not return to his home village. The appellant therefore decided to flee for his life. He went to Colombo on 26 June 2000.

(d) The following morning his father met him in Colombo and arranged for his journey to leave the country. He did so on 30 June 2000."

16. The sentence, "he managed to escape from the army for one day after he had been asked to go and collect firewood" appears to contain an error. It only makes sense if read, "he managed to escape from the army one day….". It is not suggested that he escaped for one day and was then recaptured; he has never been recaptured. The circumstances of the appellant's escape are important. In his witness statement dated 1 August 2000 the appellant said that after he helped the authorities, "After that they had been nice to me but still refused to release me. While I was in the forest camp. One day I sent to collect (sic) fireworks [presumably firewood]. During this time I managed to escape from them…". In his interview the appellant said that he was not ill-treated after he gave information to the authorities. He was kept at the camp in the forest and escaped whilst chopping firewood when the guard or guards were drunk.

17. The appellant was never charged or convicted. He was not formally sentenced to any period of imprisonment. After he helped the authorities he was not ill-treated. He appears to have been kept in informal and far from close custody in a camp in the forest.

18. Mr Murphy referred us to paragraphs 6.62, 6.64 and 6.71 of the April 2004 Sri Lanka Country Report. We accept what is said in paragraph 6.62 as to the availability of computerised and paper records, but the appellant has not shown that he was formally arrested. He was held in informal custody before the ceasefire. The appellant has not shown that the authorities will regard him as having committed an offence. He has not claimed that he has been convicted of an offence. Mr Murphy submitted that the offence would be an escape from custody. He has not referred us to any information which might lead us to the conclusion that escape from such informal custody amounts to an offence under Sri Lankan law.

19. Current country conditions and the appellant's particular circumstances are such that it was open to the Adjudicator to come to the conclusion that the appellant would not be identified as a wanted man on return to Sri Lanka and would not be at risk from the authorities, either immediately on arrival at the airport or subsequently. The Adjudicator reached conclusions open to him on the evidence and there is no error of law. We dismiss this appeal.

P R Moulden
Vice President