Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/00237/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 25 July 2016
On 9 August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between

M V
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms A Basharat, Counsel, instructed by M and S Solicitors
For the Respondent: Ms Z Ahmed, Senior Home Office Presenting Officer

DECISION AND REASONS
1. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge O'Garro (the judge), promulgated on 9 May 2016, in which she dismissed his appeal on all grounds. The appeal to the First-tier Tribunal had been against the Respondent's decision of 27 January 2016 refusing protection and human rights claims.
2. The Appellant is a national of Sri Lanka. His protection claim was essentially based upon a perceived association to LTTE operatives leading to a detention and ill-treatment in 2010, and further activities undertaken whilst in the United Kingdom. In addition to the protection claim the Appellant had married a British citizen and in that regard relied upon Article 8 ECHR.
The judge's decision
3. The judge accepted that the Appellant had been detained and tortured by the Sri Lankan authorities in 2010, as claimed (see paragraphs 63 to 65). However the judge did not accept that the Appellant was of continuing adverse interest. In this regard, having cited country information contained in the Respondent's guidance the judge found that the fact that the Appellant's family had not been harassed was "good evidence" that the authorities were no longer interested in the Appellant (paragraph 68). The judge went on to state: "For this reason I do not find the Appellant's claim that the Sri Lankan authorities continue to have an interest in him is credible."
4. At paragraph 69 the judge found that the Appellant's delay in claiming asylum in the United Kingdom damaged his credibility. At paragraphs 70 to 73 the judge considers the Appellant's circumstances in the context of the country guidance case of GJ and Others (post-civil war: returnees) Sri Lanka [2013] UKUT 319 (IAC). She finds there to be no risk to him on return based upon his past experiences in that country.
5. The judge then turns to look at the Appellant's circumstances in the United Kingdom. At paragraph 75 she notes the conclusions in GJ that the Sri Lankan authorities' approach is now based upon sophisticated intelligence. At paragraph 76 the judge appears to find that the Appellant had joined the British Tamil Forum at some point whilst in the United Kingdom, that he had attended a single demonstration in 2012, and finally that he had not been politically active in the Tamil cause whilst here. In paragraph 77 the judge considers country information contained in the Respondent's own guidance and at paragraph 78 she makes reference to paragraph 319 of GJ. In light of the evidence and the country guidance and the country information the judge concludes that the Appellant's profile was non-political and that it would not place him at risk on return.
6. In respect of the Article 8 claim the judge accepted that the relationship between the Appellant and his wife was genuine and subsisting, but having regard to Appendix FM to the Immigration Rules and the decision of the Court of Appeal in Agyarko [2015] EWCA Civ 440 she concludes that the Appellant's wife could follow him to Sri Lanka. Thus the appeal was dismissed on all grounds.
The grounds of appeal and grant of permission
7. There are three grounds of appeal: first that the judge failed to have regard to relevant evidence when considering the Appellant's activities in this country; second that the judge failed to have proper regard to the country guidance in GJ as regards the Appellant's past history in Sri Lanka; third that the judge erred in her assessment of the Article 8 claim.
8. Permission to appeal was granted by First-tier Tribunal Judge Page on 3 June 2016. He granted permission in respect of grounds 1 and 2 but expressly refused permission in respect of ground 3. In paragraph 3 of his decision Judge Page states in clear terms: "I am not satisfied that the remaining grounds are arguable if the Appellant wishes to pursue these further then an application must be made to the Upper Tribunal."
9. No such application has been made to the Upper Tribunal in advance of the hearing or before me Ms Basharat accepted that the Article 8 challenge was not a live one and the appeal was limited to the protection issues.
The hearing before me
10. Ms Basharat addressed me first in respect of the detention issue. She submitted that the judge had erred in paragraph 68 by effectively concluding that the lack of harassment of the Appellant's family was determinative of the question of whether the Sri Lankan authorities had an ongoing interest in him. I pressed her as to why this error, if it was an error, was material to the outcome of the appeal. Ms Basharat submitted that the fact that the Appellant had been detained was in itself sufficient to show a risk on return. She did, however acknowledge that this issue was not the most significant aspect of the challenge.
11. In respect of the United Kingdom activities, Ms Basharat submitted that the judge had failed to have regard to more recent country information contained in the Asylum Research Consultancy report of March 2016. She submitted that this was a highly relevant document, although she acknowledged that there was nothing specific on those who were members or sympathisers of the British Tamil Forum. She also accepted that there was no argument made before the First-tier Tribunal or before myself that GJ should be departed from. Ms Basharat submitted that if the judge had properly considered the Asylum Research Consultancy report she would have been bound to have found that the Appellant was now at risk on return, and this was so even applying the guidance in GJ.
12. For the Respondent Ms Ahmed submitted that the judge's findings in paragraph 68 must be read in light of what she said in paragraph 69. The judge was entitled to find that there was no risk on the basis that there was no evidence of family harassment. Any error committed by the judge was in any event immaterial. In respect of the United Kingdom activities even if the more recent country information had been considered it would not have made a difference to the outcome in light of GJ. Ms Basharat had nothing to say in response to Ms Ahmed's submissions.
Decision on error of law
13. As announced to the parties at the hearing, I find that there are no material errors of law in the judge's decision.
14. Dealing first with what I describe as the detention issue, it is right of course that the judge accepted that the Appellant had been detained (albeit for a short time), tortured, and then released upon payment of a bribe. The simple fact of the detention and ill-treatment does not of itself lead to a conclusion that this Appellant or indeed any other Appellant would be at risk on return now, however: that much is abundantly clear from the decision of GJ. Therefore it is important to look at what the judge said about an ongoing interest post-release.
15. If, for the sake of argument, I were to read what the judge says at paragraph 68 as showing that she regarded the lack of harassment of as being determinative of the post-release issue, and that I also assume that this was an error, in my view the error was not material to the outcome. This is so for the following reasons. First, the judge was fully entitled to conclude that the absence of any harassment of the family was indeed a "good indicator" of an absence of interest in the Appellant. Second, on the Appellant's own evidence there were no reporting conditions attached to his release (see question 115 of the asylum interview), and the Appellant had not therefore not breached any by leaving the country. Third, there was no evidence whatsoever to suggest that there were any legal proceedings ongoing against the Appellant. Fourth, the judge was entitled to rely on the delay in claiming asylum as having a damaging effect on his overall credibility.
16. Turning to the United Kingdom activities, the judge was perfectly entitled to find as she did, namely that the Appellant had only in fact attended a single demonstration in 2012 and had not been politically active in the Tamil cause. This finding is based on the Appellant's own evidence as contained in questions 147 to 153 and 155 of the asylum interview. His involvement in pro-Tamil activities was about as minimal as one can imagine. It is right that the judge has not made express reference to the Asylum Research Consultancy report and has only cited information contained in the Respondent's guidance. That is probably an error on the judge's part. I have read through the report for myself, having particular regard to the passages marked by Ms Basharat at the hearing. There are clearly risks on return to certain individuals depending on their profile; that much is recognised both within this report and indeed of course within the country guidance contained in GJ. However there has been no suggestion either before the First-tier Tribunal or myself that the guidance in GJ should be departed from on the basis of the Asylum Research Consultancy Report and having regard to the country information as a whole, in particular the guidance set out in GJ and the findings in this particular case, I conclude that the judge was perfectly entitled to find that the Appellant's profile was not such as would excite a material interest on the part of the Sri Lankan authorities whether in advance of his arrival, upon arrival or at any time thereafter. Indeed given the level of his activities in this country it would be difficult to see how an alternative conclusion could have been properly reached.
17. Having regard to what I have said above there are no material errors of law in respect of the protection claim.
18. The Article 8 issue is not before me therefore the decision of the First-tier Tribunal stands in its entirety.
Notice of Decision
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.
The Appellant's appeal to the Upper Tribunal is dismissed and the decision of the First-tier Tribunal stands.
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: 8 August 2016
Deputy Upper Tribunal Judge Norton-Taylor

TO THE RESPONDENT
FEE AWARD
No fee is paid or payable and therefore there can be no fee award.

Signed Date: 8 August 2016
Deputy Upper Tribunal Judge Norton-Taylor