Tribunal decisions

The decision

IAC-AH-KEW/sc-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/01515/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 12 January 2017
On 07 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE RAMSHAW

Between

KAJANTHAN [S]
(ANONYMITY DIRECTION NOT MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms B Jones of Counsel
For the Respondent: Mr E Tufan, a Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a citizen of Sri Lanka who was born on 1 December 1992. He applied for a Tier 4 Student visa on 24 January 2012 and arrived in the United Kingdom on 8 May 2012. On 26 November 2013 he made an application for asylum. On 16 December 2013 his leave to remain in the United Kingdom was curtailed because he had failed to attend the institution where he was studying.
2. The basis of the appellant's claim for asylum is that if he were to be returned to Sri Lanka he would face persecution as a result of his political opinion. He fears the Sri Lankan Army because of his involvement with the LTTE. On 13 January 2015 the respondent refused the appellant's claim for asylum. The respondent did not accept the appellant's account and considered that he would not be at risk on return to Sri Lanka.
The appeal to the First-tier Tribunal
3. The appellant appealed against the respondent's decision to the First-tier Tribunal. The First-tier Tribunal in a decision promulgated on 5 October 2016 dismissed the appellant's appeal. The First-tier Tribunal, Judge Abebrese, found that the appellant's claim was not credible and that he would not be at risk of persecution on return to Sri Lanka. The First-tier Tribunal also found that the appellant's activities in this country with regard to his support for the British Tamil Forum did not give rise to a risk on return. With regards to the appellant's Article 8 claim the First-tier Tribunal Judge stated that no evidence was produced on this point and dismissed the appeal on that ground also.
Application for Permission to Appeal
4. The appellant applied for permission to appeal against the First-tier Tribunal's decision to the Upper Tribunal. On 8 December 2016 First-tier Tribunal Judge Baker granted the appellant permission to appeal. Thus, the appeal came before me.
The appeal to the Upper Tribunal
5. The grounds of appeal set out four grounds of appeal. Ground 1 asserts that the First-tier Tribunal erred in its approach to consideration of the medical evidence. It is submitted that this has impacted significantly on the approach taken by the First-tier Tribunal to credibility. At paragraphs 33 to 44 of the First-tier Tribunal's decision the appellant's account is comprehensively rejected and the appellant is found not to be credible. It is argued that it is only after that point that the First-tier Tribunal considered the medical evidence. At that point the judge found that the corroborative medical reports of Dr Hajioff, Dr Martin and the NHS do not assist because he did not find that the appellant was a credible witness. It is asserted that this approach is contrary to the case law of Mibanga v Secretary of State for the Home Department [2005] EWCA Civ 367. It is submitted that the judge fell into the very error cautioned against in Mibanga by reaching a conclusion by reference only to the appellant's evidence and then if that conclusion was negative to ask whether it should be shifted by the expert evidence.
6. The appellant relies also on the cases of HE (DRC - Credibility and psychiatric reports) [2004] UKIAT 00321and SA (Somalia) v Secretary of State for the Home Department [2006] EWCA Civ 1302. The appellant relies also on JL (medical reports-credibility) China [2013] UKUT 00145 (IAC). The appellant's case is essentially that the Judge used the findings of adverse credibility as a justification for dismissing the medical evidence. Reference is made to paragraph 40 of the decision where the judge states:
"Based on the fact ... the appellant's evidence of his arrest and detention is not credible I also make the finding that his evidence in relation to his physical injuries which he claims he received is not credible."
7. Reference is made to various findings and conclusions made by the various experts which it is asserted corroborate the appellant's evidence. It is submitted that the judge was required to have considered this evidence as part of the whole package of evidence going to the question of credibility and not simply treated these as an add on or separate exercise. It is also submitted that the judge failed to look at the medical evidence with regard to the appellant's mental health problems and thereby failed to take into account the appellant's ability to recall certain facts in his account when assessing credibility.
8. Ground 2 asserts that it was a material error for the judge to begin and focus his assessment on credibility with an assessment on matters arising under Section 8 rather than taking this into account as part of a global assessment on credibility. The Tribunal's finding on the appellant's credibility commenced at paragraphs 33 and 34 and that the findings of the judge that the delay in claiming asylum was adverse to his claim failed to take into consideration the appellant's explanation that the trigger for his claim was his father's arrest on 10 October 2013. The judge failed to take into consideration that the appellant tried to commit suicide on 18 October 2013 and was admitted to Lambeth Hospital. He claimed asylum on 26 November 2013 after seeing Social Services - these events occurred prior to 16 December 2013 when his leave was curtailed. Reliance is placed on the case of JT (Cameroon) v Secretary of State for the Home Department [2008] EWCA Civ 87.
9. It is asserted that the judge failed to consider the credibility of the appellant's claim against the background evidence and country guidance, that the First-tier Tribunal did not consider that the appellant's home area was an LTTE controlled area. The appellant's account of having joined the LTTE was consistent with what was said in the country guidance case of GJ. The appellant's account in relation to escape on payment of a bribe and exit from the country was completely consistent with GJ. The appellant refers to the witness statement provided by the appellant's father and submits that the judge failed to take it into account when reaching the finding that the evidence that the appellant's father was arrested in 2013 was not credible.
10. It is asserted that the judge failed to consider properly the range of documentary evidence which addressed the appellant's political activities and views when reaching the finding that he did not accept that the appellant assisted a Tamil National Alliance ("TNA") MP in his campaigns in the parliamentary election before he left Sri Lanka. It is submitted that the appellant's political activities and opinions in the UK are consistent with his activities in Sri Lanka and that as such they should have been considered holistically.
11. In relation to ground 3, risk on return, it is argued that the judge erred materially in his approach to risk. The appellant argued that he had been involved with diaspora activities in the UK and that he had produced evidence. Reference is made to the case of GJ and the ability of the Sri Lankan authorities to penetrate the diaspora and the use of technology to identify Tamils who are working to promote separatism. It is also argued that the judge failed to properly consider the submissions made on the basis of MP (Sri Lanka) and Anor v Secretary of State for the Home Department [2014] EWCA Civ 829 and whether the appellant fell under the list of risk categories. It was submitted that the judge failed to consider paragraphs 288 to 294 of GJ and whether the appellant fell within a risk category of a person with family links or otherwise closely related to persons with the profiles of former LTTE supporters who may have been involved in sheltering or transporting LTTE personnel. It was further asserted that the judge failed to consider that the appellant is from the north of Sri Lanka and that this too arguably places him at heightened risk given his accepted family links and militarisation in the area.
12. Ground 4 argues that the judge erred in the approach to the appellant's health claim. It is submitted that the skeleton argument set out a detailed health claim at submissions 4 and 5. The judge failed to make any findings upon these issues.
13. In oral submissions Ms Jones submitted that there were extensive and unprincipled credibility findings. In relation to ground 2 she submitted that the flawed credibility findings of the judge flowed from the erroneous approach to the Section 8 question where the judge found that the asylum claim was opportunistic. She submitted that there were two mistakes. Firstly the curtailment of leave was after the appellant had made his claim for asylum. The judge has failed to consider that the appellant provided a reasonable explanation as to why his claim for asylum was delayed. She submitted that there was a trigger factor which was the father's detention. She submitted that a suicide attempt had been made by the appellant shortly after he heard of his father's detention. He was seen by Social Services and advised by them to claim asylum. There was no indication that the Home Office was notified of his failure to attend his educational course and she submitted that the logical conclusion was that the curtailment of leave followed from the appellant's claim for asylum were he frankly admitted that he had not been attending his course.
14. Ms Jones submitted that the judge believed that the fact that the appellant was released on the payment of a bribe and was able to leave Sri Lanka on his own passport without any difficulties was indicative of the fact that the authorities no longer had any interest in him was in complete conflict with the expert evidence provided in GJ.
15. She submitted that the judge has misunderstood the appellant's claim. She asserts that the judge considered that because the appellant was able to leave the camp in 2009 it must necessarily follow that there was no interest in the appellant. The appellant's account was that there must have been some intelligence that came to the authorities' notice after 2009 which is why he was arrested in 2011. She submitted that the judge's view appears to be that if the appellant was not of any interest in 2009 he could never been of any interest to the authorities subsequently.
16. Ms Jones submitted that Mibanga is still good law and that in the case of S the medical evidence was not unequivocal. In this case she submitted that the medical evidence, whilst not at the exceptional end in Mibanga, did not give rise to any suggestion that the expert was not confident that the injuries were likely to have been caused in accordance with the appellant's account.
17. With regard to the fourth ground she submitted that the judge simply records that she heard no evidence on this issue. She submitted that the Article 8 claim was thoroughly canvassed in the skeleton argument which had been produced for the purpose of the hearing. She submitted that it was not sufficient for the judge to say that she had heard no evidence and to dismiss the claim under Article 8.
18. Mr Tufan relied on the Rule 24 response. He submitted that although the judge had placed medical evidence last in the decision it is clear from the case of S that if the only real complaint was that the judge ought to have set out the consideration at an earlier point in the determination that this would not amount to an error of law. He submitted that the judge had fully addressed the medical evidence. He referred to paragraph 39 of the decision where the judge refers to the medical evidence submitting that it is simply a structure adopted by the judge and is not indicative that the judge did not have in mind the medical evidence when assessing credibility. The judge clearly considered the claim in light of the country guidance case of GJ finding that the appellant is not of any significant interest to the Sri Lankan authorities to bring him within any of the risk categories of GJ. He referred to the headnote at 7 and submitted that the appellant's activities do not come anywhere near the activities which would give rise to a risk in accordance with GJ. He relied on paragraphs 335, 336 and 351 of GJ and submitted that the appellant's activities are at a very low level. He submitted that there is no evidence of an arrest warrant so as to put the appellant at risk of being on a stop list.
19. He referred to the case of KH Afghanistan [2009] EWCA Civ 1354 with regard to the risk of suicide and submitted that the appellant could not succeed in a case under Article 3 or Article 8. He submitted that the United Kingdom's obligations in a foreign case are limited and submitted that there was nothing that would advance the appellant's case regarding the medical evidence.
20. In reply Ms Jones submitted that the issue was whether the person was perceived to be a risk by the Sri Lankan authorities. She submitted that it was vital to assess the claim on the basis of whether he was perceived to be a threat. With regard to the sur place activities they were not relying on attendance at demonstrations and rallies alone but that this ought to have been considered together with the claim as a whole and the fact that the appellant would be returning to the northern part of Sri Lanka. She submitted the totality of the evidence should have been considered by the judge before reaching findings on credibility. With regard to suicide risk she referred to submitted that there are a dearth of facilities for people with mental illness in Sri Lanka.
21. Both parties agreed that if I were to find a material error of law the matter ought to be remitted to the First-tier Tribunal for a rehearing.
Discussion
22. With regard to the first ground of appeal i.e. that the judge reached his conclusions on credibility prior to considering the medical evidence it is necessary to consider whether this is simply the adoption of a structural approach to setting out the evidence that was considered overall by the judge or whether in fact the judge appears to have reached findings on credibility and only then turned to consider the medical evidence.
23. There must always be a structure to decisions. In this case it will help to set out substantive parts of the First-tier Tribunal's decision. The judge's findings commenced from paragraph 34 which sets out the following:
"34. The appellant claims that the reason why he delayed in making his asylum application was because he had been instructed by the agent not to claim asylum on arrival in this country because he has a two and a half year visa. Further, the appellant's evidence is that his father was reporting to the authorities in his absence from Sri Lanka. On 10 October he was arrested and released on 24 April 2014. I have formed a view based on the totality of the evidence before me that the appellant's claim for asylum was precipitated and triggered by the fact that he had not been attending college and had been in the United Kingdom in breach of his visa requirements. Furthermore, I have formed the view that the appellant has sought to bolster his claim by producing evidence in relation to his mental state of mind and that if he did have a genuine claim for asylum that he would have made that claim for asylum at an earlier date as his claim if it indeed were genuine would have been assessed on the merits by the respondents. The fact that he delayed in my view is indeed adverse to his claim to fear persecution in Sri Lanka from the authorities."
24. Clearly the judge did take into account the appellant's assertion that his father was reporting to the authorities had been arrested on 10 October when reaching the conclusions on why the appellant delayed in claiming asylum. However, the judge has not set out specifically that he took into consideration the fact that shortly after the asserted date that the appellant's father was arrested the appellant attempted to commit suicide. The judge clearly refers to the medical evidence with regard to the appellant's mental health because the judge considered that the appellant 'sought to bolster his claim by producing evidence in relation to his mental state of mind'. Whilst the judge might have been clearer in his analysis of the reasons given by the appellant I do not consider that the judge did in fact fail to consider those alternative explanations as asserted by the appellant.
25. Although the judge has considered Section 8 and the delay in claiming asylum at the beginning of the findings it is clear, as set out by the judge, that the view was formed based on the totality of the evidence before the judge. It is not correct to say that the judge made a finding that the appellant made his claim for asylum after his leave was curtailed. What the judge found was that the judge formed a view that it was precipitated and triggered by the fact that he had not been attending college and had been in the United Kingdom in breach of his visa requirements. That is the view that was open to the judge on the evidence.
26. In relation to ground 1, that the judge considered the medical evidence only after reaching a view on the appellant's credibility, the judge set out findings on credibility from paragraph 35. The judge set out the following:
"35. I do not find the core of the appellant's account of the events which had led him to leave Sri Lanka to be credible, neither do I find his evidence that the basis for making the asylum claim was due to the arrest of his father for the following reasons."
27. It is clear that the judge considered the basis for making the asylum claim in light of other evidence and has set out in some detail why he did not consider that the basis for making the asylum claim was due to the arrest of his father. The judge goes on in paragraph 35 to identify the current situation in Sri Lanka as identified in GJ and sets out reasons as to why the appellant he does not accept the appellant's claim is credible. It is clear therefore that the judge did not ignore the alternative explanations provided by the appellant for the delay in claiming asylum. The judge continued in paragraph 35:
"35. The legal position as set out in the country guidance case of GJ shows a marked difference now in the approach of the government of Sri Lanka in cases such as this. The focus of the Sri Lankan government concerned since the civil war was ended in May 2009 is that the LTTE is a spent force in that they have no terrorist incidents since the end of the civil war. The government's present objective is to identify Tamil activists in the diaspora who are working for Tamil separatism and to destabilise the unitary Sri Lankan State enshrined in Amendment 6(1) to the Sri Lanka Constitution in 1983, which prohibits the violation of a totalitarian integrity of Sri Lanka. The Sri Lankan's government's focus is two-fold. Firstly, to prevent resurgence of the LTTE or any similar Tamil separatist organisation and secondly to prevent the revival of the civil war within Sri Lanka. The appellant claims in his evidence that he was not a member of the LTTE but that the authorities had suspicions that he was a member. The thinking of the authorities he claims would have been based on the fact that after 2002 his father worked as a driver for the LTTE and that he himself had been threatened and had become scared of the Sri Lankan Army and other pro-government armed groups that operated in the Jaffna area. In 2006 his family moved to Vanni and his father continued to work as a farmer on somebody else's land. He claims that his father did not drive for the LTTE any more. The appellant in his evidence and at paragraph 21 of his witness statement states that he heard that his father had been arrested and that he was held for about two months at Point Pedro Army Camp and questioned again about the appellant's whereabouts. I am not satisfied on the low standard of proof that the appellant had such a profile in Sri Lanka or had indeed developed such a profile outside of Sri Lanka so as to bring himself to the attention of the authorities in Sri Lanka. Therefore, I do not find the evidence that his father was arrested in 2013 to be credible. I also note that from the appellant's own evidence that he was able to leave Sri Lanka with the help of an agent but with his own identification and passport without the intervention of the authorities. The appellant in his evidence also details his involvement with the LTTE from June 2006 until May 2009 and again I do not find his evidence to be credible for the following reasons. He claims that having moved to Vanni on 20 December 2008 the LTTE came and rounded up some boys and girls. None of the families were able to object to this because of the fact that they feared the LTTE. The appellant claims that he was involved in training with the LTTE during this period of time. He claims that the person who was in charge of the training was a person known as Vanan and that at this time there was no formal structure and that he was given the role of supplying food and attending to injured fighters. The appellant during cross-examination was vague in relation to the training itself and he could only remember the name of one person this being the person who is responsible for the training. I do not find this credible on the basis that the appellant claims to have been detained at the camp on 20 December 2008 until mid January 2009 according to his witness statements at paragraphs 6 to 8 and therefore I would have expected him to have remembered more information and also more names than just one name of a person who was at the training camp. The appellant's evidence also at the substantive asylum interview indicates that he was not able to provide not only names of individuals but also the actual machinery that was used and the training regime itself for example he was asked at question 58 what else he was taught about the AK-47 and he responded by saying how to dismantle and fix, however when he was asked to give more information about how he was taught to dismantle he answered by stating that he could not remember. I note and accept the submission of Mr Scarisbrook that the appellant having been interviewed by the respondents in 2013 and providing vague and short answers was however able in his witness statement prepared for the appeal to give more information on the events despite the fact that more than two years had passed since his asylum interview.
36. I also do not find that the appellant's escape from the LTTE camp in 2009 to be credible for the following reasons. The appellant at paragraphs 10 and 11 of his witness statement states that the basis of his escape and that he was assisted by a neighbour in the area where he was residing with his family prior to their capture. The appellant at interview states that they managed to get away, not on a motorbike but a tractor. It is clearly inconsistent with his evidence that they managed to escape on a motorbike. I also did not find the account provided by him in relation to his escape to be credible because of the relative ease upon which he was able to escape from the camp in which he had been detained for a considerable period of time without his consent and one with a thought that such an area would have been well policed and guarded.
37. I also considered the appellant's evidence in relation to involvement with an MP called Shritharan in his campaign for parliamentary elections. The appellant claims that he worked for him and that he was assigned the role of gathering information about missing persons who had been affected and displaced as a consequence of the war. He states that he was not employed but that he was assisting the MP and that he paid him travel expenses. I have taken into consideration all the questions and answers which were provided by the appellant and note in particular question 91 when he was asked that if he was working for such a person that surely he would have his own staff and why was it that the appellant and others were working for him as that would have put them at risk. The appellant answered that he does not know and that he could not say no to the MP. I found the evidence of the appellant to be inconsistent with his profile that he was not a member of the LTTE. He claims to have had a low profile in the LTTE and that he never sought to take a greater involvement in them and in actual fact his involvement with the LTTE according to his evidence was because of the area that he lived and also because of his father's involvement in the LTTE as their driver. I have already made a finding that the appellant's claim was formulated in order to facilitate his continuing residence in this country and I make a further finding that the letter which is in the appellant's bundle at page 40 from the MP has also been provided in order to portray the appellant as a person who is active politically in Sri Lanka. This was illustrated by the fact that the appellant at question 87 of his asylum interview was asked after the elections if he had any further contact with the MP and he stated that yes this was a good friendship. He does not suggest that he continued to be politically active even though he was not working for the MP.
38. I have also made a finding that the appellant's profile in Sri Lanka and the interest that the authorities would have had on him is further undermined by the fact that his family and the appellant himself on 16 May 2009 claimed to have surrendered the Sri Lankan Army. During the detention he informed the army that he had no association with the LTTE and he was subsequently released as the army had no interest in him. I make a finding that if the authorities suspected the appellant of being a member of the LTTE that they would not have released him and that he would have been subjected to further interrogation by the authorities. The appellant in his witness statement at paragraph 12 states that he and his family were taken to a large ground in Kilinochchi and then on to Omanthai Camp the next day. Their details were taken and transferred to a camp in Vavuniya. He claims that at the camp there was a public announcement that any LTTE members should surrender separately but he did not come forward and pretended that he was not one of them. They were kept in the camp for about six months and then brought back to Point Pedro in Jaffna where they were released. Upon his release he states that he continued in the cultivation of his father's land.
39. The appellant's claim is also that he was arrested on 23 March 2011. I again did not find this to be credible for the following reasons. The appellant does not provide credible evidence to support the basis of this arrest, as stated above he had already been kept in a camp for a period of six months. He had returned to the assisting of his father in the cultivation of his land and it is not apparent on the evidence that the appellant had continued to have any links with the LTTE at the time of the writing of the refusal letter by the respondents. They state at paragraph 30 of the refusal letter that the appellant had claimed that his arrest in 2011 had resulted in him being burned on his back with a heated metal rod and cigarettes and also chilli powder was thrown in his eyes. No independent medical evidence had been provided to the respondents at that particular time. It is however noted by the Tribunal that the appellant has subsequently obtained medical evidence. I have taken into consideration that the fact that ultimately, even if it were credible that the appellant was arrested that he was released on the payment of a bribe which may be indicative of the fact that the authorities no longer had any interest in him. The appellant in his evidence states that as a consequence of the treatment which he received that he signed a document presented to him confirming that he was involved with the LTTE. Despite this he was still released on the payment of a bribe. Based on the fact that I make no finding that the appellant's evidence of his arrest and detention is not credible I also made the finding that his evidence in relation to the physical injuries that he claims that he received is also not credible."
28. It is clear from the above paragraphs that when assessing the credibility of the appellant the judge has taken into consideration the medical evidence. The medical evidence is set out separately in the decision is at paragraphs 45 to 47 where the judge set out:
"45. The appellant provided medical evidence at the hearing of the appeal from South London and Maudsley NHS where he was seen in relation to post-traumatic stress disorder (PTSD). There is also a report from a consultant psychiatrist Dr Hajioff who has made an assessment of the appellant in relation to depression and chronic PTSD. There is also evidence from Mr Martin who has found that the scarring which the appellant claimed was caused by the burning with hot metal rods are typical of the account given and the scars caused by cigarette burns are consistent with the appellant's account. The appellant also provided evidence by way of a report from a Melissa Edwards dated 7 June 2016. The appellant confirmed during examination-in-chief that he does see Ms Edwards for counselling. He also stated that he has been accepted by Freedom for Torture and that he is due to have an appointment with them.
46. I note from the refusal letter that there was no evidence provided to the respondents in relation to the appellant's medical condition and therefore that the respondents have not had the opportunity to made a decision in this respect. At the haring neither party made representations to me as to whether the medical evidence of the appellant should be admitted or that the matter should be adjourned or that the matter should not proceed for any other reasons. The conclusions of Dr Martin is that he scars are unlikely to be self-inflicted because of the position of the scar. The likely cause is by a third party but that from inspection of the injuries it is scientifically impossible to differentiate self-infliction of injuries by proxy from injuries caused by torture. It does not dismiss self-inflicted injury by proxy but he forms the view that the injuries are more likely to have been caused by the appellant being held in a certain position for some time and the slightly undulated and wider margins may have been caused by the appellant moving or flinching his body.
47. I have considered the report of Dr Martin very carefully and in the context of the totality of the evidence and I do make a finding that the appellant's account of his arrest and detention when he claims is not credible and therefore his claim that he was tortured is also not accepted. The report of Dr Martin falls in favour of the account being plausible but it also acknowledges that there is a possibility that they could have been caused by some other means."
29.
29. It can be seen at paragraph 47 that the judge sets out that he has considered the report of Dr Martin in the context of the totality of the evidence and makes a finding that the appellant's account of his arrest and detention is not credible and that his claim that he was tortured is not accepted. The judge prior to this paragraph had not made a finding of credibility in relation to the claim that he received injuries as a result of torture - clearly that claim was assessed by taking into account the evidence of Dr Martin.
30. I consider that this in this case the judge has assessed the overall credibility of the appellant's various aspects of his claim by taking into consideration the totality of the evidence including the medical evidence. The judge has adopted a structured approach and when assessing the claim to have been tortured he considered that claim as part of a consideration of the medical evidence and has taken that in the context of the claim overall. I do not consider that this case falls within the approach that was warned against in the case of Mibanga.
31. It is argued that the judge failed to take the findings in GJ into account in respect of the appellant's claim to have been released on payment of a bribe and was able to leave Sri Lanka using his own passport without difficulty. The judge's conclusion was that the payment of a bribe 'may be indicative of the fact that the authorities were no longer interested in him' and 'the appellant was able to leave the country on his own passport going through the internal controls at the airport in Sri Lanka without any difficulties'. The context in which the judge was considering these factors was the findings on the overall credibility of the appellant's account and the appellant's claim to have remained in Sri Lanka in hiding for more than a year but to have applied for a visa in person. The judge does not definitively find that being released on payment of a bribe must mean that the authorities were not interested in the appellant. However, I accept that it is not clear that the judge took into account the assessment of the witness evidence in GJ at paragraphs 262 and 275. The Upper Tribunal accepted the evidence as to current high levels of bribery and corruption in Sri Lanka, that the seriousness of any charges against an individual are not indicative of whether a bribe can be paid and that it is possible to leave through the airport even when actively being sought. I consider that it is impossible to determine how much weight the judge placed on these factors as undermining the appellant's credibility and therefore whether these factors might have infected his overall findings on credibility. Although I consider it borderline, given the need to assess asylum claims with anxious scrutiny, I find that this amounts to an error of law.
32. I have considered whether this error might not be material given the current categories of those at risk on return to Sri Lanka. I do not consider that the judge erred in the approach to risk on return based on his credibility findings. However, as those findings are no longer entirely safe the assessment of risk on return is no longer safe. I find that the error of law is therefore material. It is not clear that the judge would have arrived at the same conclusion had he considered the 'bribery and leaving on his own passport issues' in light of the assessment of the evidence on these points in GJ.
33. With regard to the ground of appeal on Article 8 I have considered the appellant's skeleton arguments that were before the First-tier Tribunal. There appear to have been two separate skeleton arguments, one rather short skeleton and a further skeleton of 27 pages dated 23 August 2016. The 23 August 2016 skeleton argument sets out in some detail submissions on Articles 2, 3 and 8 of the European Convention on Human Rights on health grounds. These run from paragraph 61 to 70 with a further paragraph at paragraph 71 dealing with paragraph 276ADE of the Immigration Rules. The only record in the Tribunal's decision is at paragraph 32 where the judge set out:
"32. It was submitted that the appellant would be at risk and further if returned because he would be subjected to inhuman and degrading treatment under Article 3 and that his life would be at a risk under Article 2. Furthermore that his removal, because of his health would also breach Article 8 of the European Convention on Human Rights".
34. Very lengthy submissions were set out in the skeleton argument and some further oral submissions were made in relation to the appellant's health risks in terms of Articles 3 and 8. The judge has failed to consider those arguments at all. I find that this is an error of law. Whilst the threshold that the appellant must meet for a finding of a breach of his rights under articles 3 or 8 is very high in respect of a 'medical claim' it is not certain that the claim would fail. I therefore find that this is a material error of law.
35. I have considered carefully whether or not some of the findings on credibility can be preserved. I find that it would be very difficult to isolate specific findings. As substantial evidence will need to be considered I remit this matter to the First-tier Tribunal to be heard at Taylor House on the next available date before any judge other than Judge Abebrese.

Notice of Decision

The appeal is allowed. The matter is remitted to the First-tier Tribunal at Taylor house to be heard de-novo before any judge other than Judge Abebrese.

No request for an anonymity order was made. No anonymity direction is made.

Signed P M Ramshaw Date 5 February 2017

Deputy Upper Tribunal Judge Ramshaw