Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/00420/2013

THE IMMIGRATION ACTS

Heard at Field House
Decisions & Reasons Promulgated
On 26 May 2016
On 15 November 2016

Before

UPPER TRIBUNAL JUDGE GLEESON

Between

A V H
[ANONYMITY ORDER made]
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the appellant: Ms S Pascoe, Counsel instructed by Vasuki solicitors
For the respondent: Ms A Holmes, a Senior Home Office Presenting Officer

DECISION AND REASONS

Anonymity order
Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I continue an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original Appellant. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.
1. The appellant appeals with permission against the decision of the First-tier Tribunal dismissing his appeal against the respondent's decision to refuse to vary his student visa to allow him to remain in the United Kingdom on refugee protection, humanitarian protection or human rights grounds. The appellant is a citizen of Sri Lanka.

Background
2. The appellant has been in the United Kingdom as a student since 2007. His core account for protection purposes is that he returned to Sri Lanka for a visit on 13 November 2012, entering without difficulty on his own passport but he was detained on 16 November 2012, after a friend informed on him, questioned, tortured, and forced to sign a confession. He was released on 22 February 2012 on payment of a bribe and helped at the airport by an agent his father employed. He left Sri Lanka on his own passport and re-entered the United Kingdom on his student visa, claiming asylum a few days later.

First-tier Tribunal decision
3. The First-tier Tribunal considered the appellant's medical evidence of torture, accepted that he had indeed been badly burned and had received both medical treatment from his general medical practitioner and counselling in the United Kingdom.
4. The Judge did not believe the appellant's core account, despite the burn scars, which he found to have been self-inflicted by proxy to bolster the appellant's claim. In the light of that finding, the First-tier Tribunal Judge also attached very little weight to medical evidence of PTSD and mental health problems arising out of the torture.
5. Specifically, the First-tier Tribunal Judge rejected the appellant's account of having a cousin in the LTTE, of being detained or tortured, signing a confession, skipping bail or escaping custody.
6. The Judge found instead that the appellant had entered and left Sri Lanka on his own passport, without difficulty. He did accept that the appellant was of Tamil ethnicity and now has scarring. The First-tier Tribunal dismissed the appeal.

Permission to appeal
7. Upper Tribunal Judge Rintoul granted permission to appeal, noting that the grounds of appeal were mainly a disagreement with the Judge's findings of credibility, but that it was, just, arguable that the First-tier Tribunal Judge had erred in his assessment of the medical evidence of Dr Lingam relating to the casuation of, and the circumstances in which, the appellant's scars were inflicted. No Rule 24 Reply was filed.
8. That is the basis on which this appeal came before the Upper Tribunal.

Upper Tribunal proceedings
9. On 24 July 2013, Upper Tribunal Judge Dawson found that there was a material error of law in the First-tier Tribunal decision. There was no opposition from the respondent's presenting officer at that hearing to the finding of error of law. For the appellant, Ms Physsas argued that none of the findings on credibility could stand, having regard to the nature of the error. For the respondent, Ms Isherwood accepted that the decision would have to be remade.
10. Upper Tribunal Judge Dawson's conclusions were summarised at [11]-[12] in his decision:
"11. As I observed to the parties, my principal concern related to the treatment of the medical evidence, in particular the permissibility of the Judge concluding in [69] as recorded above that the scars had been caused by deliberate burning with the appellant's consent, with a view to creating the appearance of scars. It was questionable whether there was an evidential basis for this conclusion in the light of the medical evidence. I conclude that this error is sufficient to undermine the determination as a whole, particularly in the light of the potential ability of the medical evidence to provide an answer to aspects of the account which the Judge had considered variously as 'highly improbable' and 'implausible'.
12. I am satisfied, therefore, that Ms Isherwood was correct to acknowledge error of law. I therefore set aside the determination. The decision will be remade following the case management review indicated above."
11. This appeal was one of two identified for possible guidance on scarring in what became KV (scarring - medical evidence) [2014] UKUT 230 (IAC). At the case management review, the appellant stated that he did not wish his appeal to be heard with that of KV for (partly) funding reasons. Judge Dawson refused an application by both the appellant and the respondent to remit the present appeal to the First-tier Tribunal for the decision to be remade, and ordered that the appeal be listed for hearing after the Upper Tribunal had made its decision in KV. The rest of the directions then given relate to KV's case.
12. This appeal now falls to be determined in the light of the guidance given in KV about scarring, and the general country guidance in on the post-civil war situation in Sri Lanka given by the Upper Tribunal in GJ (post-civil war: returnees) Sri Lanka CG [2013] UKUT 319 (IAC). It is unfortunate that there has been a lengthy additional delay following the decision in KV before this appeal was determined. However, there has been no change in the Upper Tribunal's country guidance nor in the guidance given in KV in 2014.
13. On 26 May 2016, this appeal came before me for decision. After discussion with the parties, it was agreed that there would be written submissions by both parties to be received within 21 days, after which the Upper Tribunal would decide whether the appeal could be decided on the papers, or whether a further oral hearing was needed.

Submissions
14. The appellant's submissions were received on 24 June 2016. The appellant's Counsel, Mr Paramjorthy, repeated his request for the appeal to be remitted to the First-tier Tribunal for rehearing. He submitted that a further hearing is required, with a Tamil interpreter. Mr Paramjorthy's submission set out a list of 'key elements of the appellant's profile' most of which are among those which the First-tier Tribunal Judge did not find credible. In addition, he relied on the appellant's mental health issues as set out in additional documents which were filed for the May 2016 hearing.
15. There follows a lengthy citation from GJ, which occupies more than 4 pages in Mr Paramjorthy's 7-page submission. The mixture of assertion of matters which the First-tier Tribunal did not believe as though they were established facts and the paucity of any actual argument in the submission make Mr Paramjorthy's reasoning hard to follow. In effect, he wishes to have all the facts found afresh, which is something which is best done, if at all, in the First-tier Tribunal. There is no lengthy analysis of the medical evidence upon the basis of which permission to appeal was originally given.
16. For the respondent, Ms Holmes' submissions were received 5 October 2016 with an apology for their being so late. She did engage with the medical evidence. She contended that little weight should be placed on the medical evidence of Dr Dhumad, and Dr Baha al-Wakeel, such that they could not properly be regarded as having differentiated between torture scars and those self-inflicted by proxy.
17. Ms Holmes argued that similar concerns apply to the letter purporting to be from the Transnational Government of Tamil Eelam which is simply too vague to meet the GJ (Sri Lanka) standard and establish the existence in this appellant's case of sur place activities which would cause concern to the Sri Lankan authorities and involve a risk of future torture. Ms Holmes submits that the decision can be remade in the Upper Tribunal without a further hearing, on the papers before me.

Discussion
18. I have considered how I should proceed. I find, reluctantly, that given that the First-tier Tribunal decision was set aside in its entirety by Upper Tribunal Judge Dawson, with the credibility findings tainted by the error of law, the decision must be remade afresh, with no findings of fact or credibility preserved.
19. That being the case, and contrary to Judge Dawson's views in August 2013, I am quite satisfied that the appropriate course is to remit this appeal to the First-tier Tribunal for rehearing afresh.

DECISION
20. For the foregoing reasons, my decision is as follows:
The making of the previous decision involved the making of an error on a point of law.
I set aside the previous decision. The decision will be remade in the First-tier Tribunal on a date to be fixed.

Date: 14 November 2016 Signed Judith AJC Gleeson
Upper Tribunal Judge Gleeson