Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: AA/00152/2016
AA/00154/2016
AA/00155/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 6 October 2016
On 27 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON

Between

THE Secretary of State FOR THE HOME DEPARTMENT
Appellant
and

MS P V (FIRST APPELLANT)
MRS A V (SECOND APPELLANT)
MASTER ARV (THIRD APPELLANT)
(ANONYMITY DIRECTION made)
Respondents

Representation:

For the Appellant: Mr S Kotas, Senior Home Office Presenting Officer
For the Respondents: Mr M Blundell, Counsel instructed by Theva Solicitors

DECISION AND REASONS

Background
1. The appellant in this case is the Secretary of State. However, I refer to the parties as they were before the First-tier Tribunal where the Secretary of State was the respondent. The appellants are citizens of Sri Lanka. The first appellant was born on 6 June 1992 and the second appellant was born on 10 November 1950. The third appellant, Master ARV was born on 28 March 2014. The first appellant is the daughter of the second appellant and the third appellant is the son of the first appellant and the grandson of the second appellant. The third appellant is dependent on the first appellant.
2. In a decision and reasons promulgated on 16 August 2016 Judge of the First-tier Tribunal Blake allowed the appeals on asylum and human rights grounds.
3. The Secretary of State appealed with permission on the grounds that the reasons given by the judge for allowing the appeals are not sufficient to bring the appellants within the risk factors contained in the country guidance of GJ and Others (Post-civil war returnees) Sri Lanka CG [2013] UKUT 00319 (IAC). Whilst the judge also allowed the appeals under Article 8 it was submitted that there were no reasons given for that finding and no considerations of those articles separate from the Refugee Convention.
4. It was Mr Kotas' submission that the judge did not set out the risk categories in GJ and that the judge found, in effect, that the appellants would be at risk of 'by association' coupled with attendance at demonstrations in the UK. However he submitted that this is not what the country guidance says. Individuals have to be a threat to Sri Lanka or perceived to be so. However Mr Kotas submitted that the appellants are a mother, a grandmother and a child returning to Sri Lanka and it was submitted that clearly there would not be a risk. Although Mr Blundell, in his Rule 24 response, indicated that the only issue was credibility, Mr Kotas did not accept that this was the case and submitted that there was no express concession made by the Home Office and the Record of Proceedings indicated that at the First-tier Tribunal the Home Office Presenting Officer made submissions both on credibility and the country guidance. Mr Kotas further submitted that the lack of findings in relation to the human rights was flawed and there was no reference to the very high threshold necessary. I asked Mr Kotas for his view on PP (Sri Lanka) [2014] EWCA Civ 1828 as relied on by Judge Blake (at paragraph [213] of his decision). Mr Kotas submitted that the judge had not said anything in relation to persecution of women or whether that was what was being relied on.
5. Mr Blundell took me to the skeleton argument provided for the First-tier Tribunal which set out the current position in Sri Lanka with reference to the respondent's guidance of May 2016 on Sri Lanka (at paragraphs 20 to 24 of that skeleton). Mr Blundell also referred to the statements of the appellants in the bundle and the supplementary bundle before the First-tier Tribunal. This set out the background of this case including that, as accepted by Judge Blake in his decision at [208], the father of the first appellant was a senior figure in the LTTE and was responsible for procuring arms and other banned goods and transporting them.
6. Mr Blundell also relied on the factual matters accepted by Judge Blake including that the father of the first appellant and the husband of the second appellant was currently in Vietnam. Both the appellants had dealt in their statements with the situation of the father of the first appellant who fled Sri Lanka to Laos and then Vietnam. It was also set out in the statements, again as accepted by Judge Blake, that the Sri Lankan authorities had subsequently visited the brother of the first appellant in Sri Lanka and interrogated him about the family including the father. In addition paragraph 33 of the first appellant's supplementary statement November 2014 referred to events in May 2014 where it was indicated that again the authorities had visited the first appellant's brother and had indicated that the appellants were taking part in rallies in the UK and the appellant's brother was again threatened. The first appellant's further statement of 10 July 2016 contained similar indications of ongoing interest in the family on the part of the Sri Lankan authorities.
7. Mr Blundell indicated that this was the case presented to the Secretary of State and therefore it was in this context that the judge's findings at paragraph [17] of the decision must be viewed. Judge Blake at [17] stated that the issue in the appeal was "one of credibility of the appellant's account". That credibility was accepted by Judge Blake. It was Mr Blundell's submission that it was not a case, as argued by Mr Kotas, that the judge was saying that this family would suddenly be perceived as a threat. It was the case that there was ongoing interest in this family as a whole. In Mr Blundell's argument this explained the relative brevity of the judge's risk analysis. If it was accepted that there was ongoing interest which Judge Blake effectively had in his credibility findings then that addressed the GJ (Sri Lanka).
8. Mr Blundell submitted that in relation to the human rights findings it was clear that the judge had allowed the case on the same grounds. In terms of a freestanding mental health case Mr Blundell was of the view there was sparse reasoning but that did not detract from the soundness of the judge's findings and the sustainability of those findings in relation to the Refugee Convention and Articles 3 and 8 being allowed on the same grounds.
9. The risk categories in GJ (Sri Lanka) are as follows:
(a) "Individuals who are or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they are, or are perceived to have a significant role in relation to post-conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka.
(b) Journalists (whether in print or other media) or human rights activists, who, in either case have criticised the Sri Lankan government, in particular its human rights records, or who are associated with publications critical of the Sri Lankan government.
(c) Individuals who have given evidence to the Lessons Learned and Reconciliation Commission implicating the Sri Lankan security forces, armed forces or the Sri Lankan authorities in alleged war crimes. Among those who may have witnessed war crimes during the conflict, particularly in the No Fire Zones in May 2009, only those who have already identified themselves by giving such evidence will be known to the Sri Lankan authorities and therefore only they are at real risk of adverse attention or persecution on return as potential or actual war crimes witnesses.
(d) A person whose name appears on a computerised "stop" list accessible at the airport comprising a list of those against whom there is an extant court order or arrest warrant. Individuals whose name appears on a stop list will be stopped at the airport and handed over to the appropriate Sri Lankan authorities in pursuance of such order or warrant".
10. It is evident from the judge's findings that he was satisfied that the appellants fell within the first category of risk, in that they were individuals who would be perceived as a threat to the integrity of Sri Lanka because they are or are perceived to have a significant role in relation to post-conflict Tamil separatism. This must be seen in the context of the history of this family as a whole as set out in the comprehensive evidence that was before the First-tier Tribunal Judge and which was recorded in his decision and accepted by him. The judge in conclusion at [215] accepted their association with the LTTE "in combination with their activities in the UK was likely to place them at risk on return". It was not a case that their actions in the UK alone were considered by the judge to be a risk.
11. I am satisfied that the respondent's challenge is misconceived. Even if Judge Blake was wrong and there was no specific concession before him in relation to risk on return if found credible, that error is not material. The evidence considered in some detail and accepted by Judge Blake, of the extent of the involvement of the first appellant's father with the LTTE and the extent of the ongoing interest in the family from the Sri Lankan authorities, shows that the parties if found credible were at risk and did fall within the relevant risk category and that as per Lord Justice Underhill at paragraph 50 of MP (Sri Lanka) [2014] EWCA Civ 829 they will be perceived as "current threat to the integrity of Sri Lanka as a single state" and would accordingly be at risk. Although another judge might have worded the reasoning differently, I find no material error in the judge's reasoning.
12. Although the judge's decision arguably discloses a lack of adequate reasoning in relation to what was a freestanding mental health claim, Judge Blake at 217 considered Articles 2, 3 and 8 to be engaged on the basis of the facts which he had found and accepted on the asylum claim. On that basis there was no material error in him also allowing the appeal on human rights grounds. The fact that the case may well also have succeeded in its own right under mental health grounds, which he failed to adequately address, is not a material error.
Conclusion
13. The decision of the First-tier Tribunal discloses no error of law and shall stand. The appeal of the Secretary of State is dismissed.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date: 25 October 2016

Deputy Upper Tribunal Judge Hutchinson

TO THE RESPONDENT
FEE AWARD

No fee was paid or is payable.

Signed Date: 25 October 2016

Deputy Upper Tribunal Judge Hutchinson