Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/01976/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 9 September 2016
On 27 September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE RAMSHAW

Between

mr prasath [M]
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms F Allen of Counsel instructed by Jein Solicitors
For the Respondent: Mr E Tufan, a Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. This is an appeal by the appellant against a decision of First-tier Tribunal Judge Heatherington who, in a decision promulgated on 11 May 2015, dismissed the appellant's appeal.

Background facts
2. The appellant is a citizen of Sri Lanka born on 11 July 1986. The appellant applied for a student visa to enter the United Kingdom on 6 January 2010. He applied to extend his visa and was granted leave to remain until 7 February 2014. The appellant claimed asylum on 6 June 2013.
3. On 26 January 2015 the Secretary of State refused the appellant's claim for asylum because she did not accept that he had been arrested, detained and ill-treated as asserted or that he was a Tamil activist in the UK and therefore considered that the appellant would not be at risk of persecution on return to Sri Lanka. The Secretary of State also refused the appellant's claim under Article 8 of the European Convention on Human Rights ('ECHR'). The appellant appealed against the Secretary of State's decision to the First-tier Tribunal.
The appeal to the First-tier Tribunal
4. The First-tier Tribunal found that the appellant was not a credible witness. The Tribunal did not accept that the appellant had ever been a supporter of the LTTE, that he had ever been tortured by the Sri Lankan authorities or that the authorities in Sri Lanka have any continuing interest in him. The First-tier Tribunal found that the appellant is not actively supporting the Tamil diaspora in the United Kingdom and found that there is no reasonable likelihood that the appellant will be detained by the security forces when he returns to Sri Lanka. The First-tier Tribunal also found that the appellant has no family life in the United Kingdom.
The appeal to the Upper Tribunal
5. The appellant applied for permission to appeal to the Upper Tribunal. On 14 July 2015 First-tier Tribunal Judge J M Holmes granted the appellant permission to appeal. Thus the appeal came before me.
The appeal before the Upper Tribunal
Summary of Submissions
6. The grounds of appeal assert that the judge failed to engage with and consider properly the medical evidence. It is submitted that the judge should have attached more weight to the expert medical report than he did. Ms Allen referred to paragraph 42 of the decision where the judge set out that three points in the medical report cause concern. The first concern was that the doctor was unable to rule out the possibility that the appellant's scarring was not caused by a third party at the appellant's request. At page 8 of Professor Lingam's report she submitted this is a general observation not particular to this appellant and it says that no medical expert can say whether or not the injuries might have been caused by a third party at the request of an appellant. She submitted that Professor Lingam had considered alternative causes for the scars but found that there was no reason to dispute the history given by the appellant. She submitted that Professor Lingam had considered the case of KV (scarring) Sri Lanka [2014] UKUT 230 and the Istanbul Protocol. She submitted there was no feature or issue in the evidence to raise self-infliction by proxy.
7. With regard to the second concern, which was that Professor Lingam states that he trusts what the patient says, she submitted that he considered the appellant's account but he was not simply relying on what the appellant told him.
8. With regard to the third concern she submitted that the report by Dr Lingam was a scarring report, not a psychiatric report. Therefore, the judge's concern as recorded in paragraph 42 is misplaced. She further submitted that if the judge had concerns about Professor Lingam's report those ought to have been put to the appellant which gives rise to a procedural fairness point.

9. In respect of ground 2 it is submitted that the judge gave inadequate reasoning in support of his findings with regard to the sur place activities. At paragraph 45 of the First-tier Tribunal's decision the judge accepts that the appellant attended and can be seen at rallies for Remembrance Day and Heroes Day but the judge failed to assess the risk on return in light of his sur place activities. Ms Allen submitted that the judge failed to deal with the evidence, in particular why little weight has been given to the diaspora activities. She submitted that paragraphs 36 to 40 contain what is a very short analysis of the evidence and that even with that analysis there are no conclusions reached. The First-tier Tribunal Judge has failed to state why weight cannot be attached to the letter from the British Tamil Forum. It is asserted that the judge found that the appellant is not actively supporting the Tamil diaspora but no reasons are given for this finding - this is contradictory given the acceptance that the appellant did have some sur place involvement. She submitted in relation to the diaspora activities that as set out in GJ it is known that the authorities have surveillance and intelligence-led information. She submitted that the authorities would be aware of the appellant and that would represent a continuing interest in him that would put him at risk.
10. In relation to ground 3 it is submitted that the judge failed to apply the country guidance and gave inadequate reasoning. Ms Allen submitted that there are no findings or conclusions in the First-tier Tribunal's decision so that it is very difficult for the appellant to know the basis of why his appeal was dismissed. She submitted there was no proper analysis of the witness statements and the letter from the Red Cross or of the continuing interest of the authorities shown in the appellant's family. It is also asserted that the judge has failed to give reasoning as to why the appellant does not come within one of the current risk categories as identified in GJ. It is insufficient for the judge, at paragraph 48 of the determination, to just state no. It is also asserted that the judge has failed to make findings as to whether the appellant's name appears on a stop list at the airport and that the judge has failed to give adequate reasoning, at paragraph 48(i) of the determination, as to why the appellant would not be considered a Tamil activist. The judge states that the details are woolly but does not give any reason for this. It is asserted at paragraph 47 of the decision the judge states that he has substantial doubts about the explanations given by the appellant in his screening interviews and statements but does not give any reasoning for that finding. She submitted that there was no actual conclusion as to whether or not the judge accepted the evidence of the appellant's uncle. There was no consideration of the appellant's own witness statement. She submitted that there was no evidence that the judge put any of his doubts to the appellant during the hearing.
11. Ground 4 asserts that the judge failed to make findings in relation to paragraph 276ADE of the Immigration Rules. It is asserted that the judge accepts that the appellant has an uncle in the United Kingdom but apart from that the judge has not given any reasons as to why there would not be very significant obstacles to the appellant's reintegration into society in Sri Lanka. It is also asserted that the judge has failed to give any reasons as to why the appellant is not considered to have a private life in the United Kingdom.
12. Ms Allen submitted that the judge has failed to engage with the evidence. She submitted that little of the evidence has been set out by the judge. There was a letter from the Red Cross with regards to the appellant's first detention that has not been considered by the judge. She also submitted that the judge has failed to take into account the recent country information.
13. Mr Tufan submitted that the medical report, in essence, says that there are scars present but nobody can conclude whether or not they were inflicted by proxy but that this was all part of the credibility assessment. He referred to the case of RR (challenging evidence) Sri Lanka [2010] ULUT 274. In this case it is suggested that the appellant should be asked questions as to whether or not the scars were self-inflicted. Mr Tufan asserted that this clearly would not take matters any further as it is unlikely that an appellant would ever admit to self-infliction by proxy. He submitted that what is required is for the evidence to be considered in the round.
14. With regard to the appellant's uncle's evidence he submitted that it is clear at paragraph 43 that all of the evidence that the uncle gave has been derived from the appellant's account. The judge concluded that the uncle could not be treated as an independent witness- this finding was open to the judge. He submitted that with regard to the diaspora activities it is clear from the case of GJ that in order to give rise to a risk on return mere attendance at demonstrations is insufficient. The appellant would have to be a leader or play a significant role. He submitted the evidence of the appellant does not go anywhere near this level of involvement. He submitted that there was no evidence of any outstanding arrest warrant and that the appellant simply does not come under any of the risk categories identified.
Discussion
15. The First-tier Tribunal set out in some detail the background to the appellant's claim - from paragraphs 14 to 24. The judge then set out the evidence from the appellant's uncle in paragraphs 26 to 30. The judge also sets out at paragraphs 36 to 40 various aspects of the evidence given during the course of the hearing and brief details from the appellant's witness statement.
16. With regard to the first ground of appeal the judge set out at paragraph 42:
'First I address the medical evidence relating to the appellant's scaring. This informs my assessment of the appellant...Professor Lingam said that, other than torture, the appellant had denied any cause for the scarring. He assessed the scars. He states that the burn was inflicted in March 2013 and concluded that the scars and other injuries he saw were consistent with the history provided by the appellant. Three points cause me concerns.
1. The first is that Professor Lingam's clinical opinion is that it is not possible to differentiate between deliberately inflicted wounds (at a third party's request) and trauma inflicted wounds. Professor Lingam was unable to rule out the possibility that the appellant's scarring was not wounds from a third party's request.
2. Secondly Professor Lingam states that he trusts what the patient says and interprets this scientifically. He states that he accepted the appellant's explanation that the scarring was two years old.
3. Thirdly, the appellant was not found, as might have been expected, to be severely depressed. Almost as an afterthought, at the close of his report Professor Lingam adds, 'I remain concerned that the patient may have mental health issues as a result of his injuries and ill-treatments'. In other words there is only a possibility of mental health issues. This put s the possibility of the appellant having a mental health condition at a low level.'
17. At paragraphs 50 and 51 the judge set out:
'I find that the appellant's claims are not plausible claims. I am not persuaded that the appellant was tortured and acquired the scars as he has claimed. Professor Lingam explains how he arrived at his conclusions. He relies on the history given to him by the appellant. He goes on to state that he cannot differentiate between wounds deliberately inflicted at a third party's request. As I find the appellant's account that he was tortured in the manner claimed in 2013 is not true it follows that I am not prepared to accept and rely on the opinion of Professor Lingam.
Furthermore, as I cannot rely on the appellant's evidence to be credible or trustworthy considering the evidence as a whole, including the background country evidence, the evidence of the appellant and his witnesses and the medical evidence, I am not satisfied, even on the lower standard, that the appellant has made out his claim.'
18. I accept Ms Allen's submissions that with regard to the first 'concern' raised by the judge - the inability of Professor Lingam to rule out the possibility that the appellant's scarring was not from wounds caused at a third party request - Professor Lingam gave no indication that he considered that this was a realistic probability. This was a generic statement, as is clear from the medical report. It will be likely, in most cases, that it will not be possible to differentiate between wounds inflicted at the request of an appellant and trauma inflicted wounds. Weight to place on an expert report is a matter for the judge. Looking at paragraph 50, one reading is that the judge as part of his overall assessment placed little weight on the medical report and one factor he took into account when doing so was the fact that, despite the presence of scarring that may have been consistent with the appellant's account, he Professor Lingam could not rule out the cause of the scarring as being a result of wounds caused deliberately by a third party at the request of the appellant. This is not an unknown phenomenon. I cannot be sure, however, that that is the approach taken by the judge in this case. My reading of the approach of the judge, as set out in paragraph 42, is that he expressly considered that the mere fact that Professor Lingam was unable to rule out third party infliction at the appellant's request, of itself, caused him concern. As I set out above the statement was a generic one and not specific to the appellant and appears in most scarring reports. It is not clear why the judge found this concerning rather than being a factor he took into account when considering what weight to attach to the report.
19. I also accept, with respect to the second 'concern', that it is not clear why it should concern the judge that Professor Lingam states that he trusts what the appellant had said and interpreted it scientifically. The comments I make above in respect of the concern the judge had regarding the cause of the scars apply equally to this concern. Experts clearly rely on an appellant's account but do not simply rely on the account without exercising some judgement when providing their expert evidence on the scarring. The judge is entitled to take into account the fact that an expert places reliance on an appellant's account and that it is not the role of an expert to determine if the appellant is telling the truth. That is a matter for the judge. It is not clear why the judge had 'concerns' with this point rather than taking it into account when deciding what weight to place on the medical report.
20. I also accept Ms Allen's submissions in relation to the third concern expressed by the judge. The judge's conclusion, derived from the fact that Professor Lingam mentions towards the close of the report that the appellant may have mental health issues, that this puts the possibility of the appellant having a mental health condition at a low level does not necessarily follow. This was a scarring report. Professor Lingam was not providing a psychiatric report. Further, the judge has entered into speculation as to what 'might have been expected', namely, that the appellant would have been severely depressed.

21. However, whether or not this is a material errors of law have to be considered when looking at the conclusions of the judge overall.
22. With regard to ground 2, the inadequate reasoning for sur place activities, the judge sets out at paragraph 45:
"I attach little weight to the photographs at rallies for Remembrance Day and Heroes Day. I do not doubt that the appellant attended and can be seen. However, I am satisfied that any involvement on these occasions was at a low level and that the main purpose was for the self-serving embroidering of his claims that he is politically active. The appellant's uncle's oral evidence confirms this. The motive in participating in these protests 'to be photographed' was to lay the ground for an attempt to support for his asylum claim."
23. The judge also records in paragraph 48
'?In my judgment the appellant's uncle makes clear that when he told me that the appellant's purpose in attending events such as Tamil National Heroes Day and Remembrance Day in the United Kingdom was 'to be photographed'."
24. Further, at paragraph 49 the judge made a finding that "I am satisfied that the appellant is not actively supporting the Tamil diaspora". The judge has considered the likelihood of the appellant's being at risk as a result of his sur place activities when the judge considers at paragraph 48(i) whether or not the appellant is a Tamil activist. The judge considered:
(i) Is the appellant a Tamil activist? On the evidence, I find as a fact that the appellant is not a Tamil activist. He claims to have passed some parcels and helped Tamils exist Sri Lanka. The details are woolly and in my judgment the appellant makes the claim to embroider an attempt to remain in the United Kingdom and with a vain hope that they might support a weak asylum application. In my judgment the appellant's uncle makes that clear when he told me that the appellant's purpose in attending events such as Tamil National Heroes Day and Reembrace day in the United Kingdom was 'to be photographed'.'

25. It is clear that the judge applied the guidance in GJ & Others when considering whether there was a real risk to the appellant of ill-treatment or harm on return to Sri Lanka. As set out in GJ at paragraphs 336, 351 and 352 in order to give rise to a risk the appellant would have play a significant role:
'336. The former Tamil areas and the diaspora are heavily penetrated by the security forces. Photographs are taken of public demonstrations and the GOSL may be using face recognition technology: it is sponsoring a face recognition technology project at the University of Colombo. However, the question which concerns the GOSL is the identification of Tamil activists working for Tamil separatism and to destabilise the unitary Sri Lankan state. We do not consider that attendance at demonstrations in the diaspora alone is sufficient to create a real risk or a reasonable degree of likelihood that a person will attract adverse attention on return to Sri Lanka.
351 Our overall conclusion regarding diaspora activities is that the GOSL has sophisticated intelligence enabling it to distinguish those who are actively involved in seeking to revive and re-fund the separatist movement within the diaspora, with a view to destabilising the unitary Sri Lankan state. Attendance at one, or even several demonstrations in the diaspora is not of itself evidence that a person is a committed Tamil activist seeking to promote Tamil separatism within Sri Lanka. That will be a question of fact in each case, dependent on any diaspora activities carried out by such an individual.
352. The evidence before us indicates that any Tamil who seeks a travel document from the SLHC in London or another diaspora hotspot will have a file created in Colombo and will be interviewed in London before a decision is made to issue a TTD. By the time the DIE in Colombo emails a TTD to London to be issued to such an individual, the Sri Lankan authorities will know all they need to know about what activities an individual has undertaken outside Sri Lanka and, in particular, whether the returnee poses a real risk to the unitary Sri Lankan state or the GOSL on return.'
26. There was no error of law in respect of the judge's findings in respect of the appellant's involvement in diaspora activities in the UK or his conclusion that as a result of that very limited involvement the appellant would not be at risk on return
27. I accept Mr Allen's submissions that the judge has not made clear findings with regard to the appellant's first detention in late 2008 and the letter from the Red Cross confirming that they had visited the appellant whilst in detention on 20/1/2009. The judge found:
'It is difficult to understand why the authorities might have put in so much effort with the appellant as he has claimed. He was a full time student. He has little or no information on the LTTE or its members. He is not a LTTE member and there must have come a point when this was realised. I have substantial doubts about the explanations given by the appellant in his screening interview and statements. I do not accept that the appellant has ever been a supporter of the LTTE in the ways the appellant has suggested or at all, or that he has ever been tortured by the Sri Lankan authorities Immigration Rules that the authorities have any continuing interest in him.'
28. Whilst the findings of the judge were ones that were open to him it is not clear what elements of the explanations given by the appellant in his screening interview and statements gave rise to doubts or why they did so other than the judge considered that it was unlikely that the authorities would have any interest in him given he was not an LTTE member. The judge has not referred to the letter from the Red Cross which on the face of it appears to confirm at least a short detention in 2009. It is also not clear that the judge was referring to both claimed detentions.
29. In relation to ground 4 this was not pressed by Ms Allen at the appeal. However, the grounds do set out that the judge has failed to give any reasons as to why there would not be very significant obstacles to the appellant's reintegration into society in Sri Lanka. The judge sets out in paragraph 52:
"As I have indicated, the appellant's parents and family live in Sri Lanka. I accept that the appellant has an uncle - his father's brother - in the United Kingdom, an uncle whom he sees only infrequently. I conclude that the appellant has no family life in the United Kingdom."

30. Although the judge has erroneously considered family life and has not considered private life in accordance with paragraph 276ADE of the Immigration Rules or given any reasoning as to why there would not be very significant obstacles to the appellant's reintegration into society, no specific details as to why there would be any significant obstacles have been given by the appellant either. In the absence of any specific details as to why the appellant, a Sri Lankan National who has family in Sri Lanka and spent most of his life there, could not reintegrate into Sri Lanka this aspect of the appeal is bound to fail. Given the evidence of the appellant's uncle and the very limited activities that the appellant was said to be involved in, in the UK, the finding of the judge was one that was open to him.

31. Given the requirement to assess asylum claims with the most anxious scrutiny I cannot be certain that the judge assessed the medical evidence appropriately. I find that the judge has erred in concluding that factors set out in Professor Lingam's report referred to above are matters that, of themselves, cause concern. The judge failed to give adequate reasons and/or clear findings with regard to the appellant's claimed detention in 2008/2009. Although it is possible that the judge may have nevertheless arrived at the same conclusion it is not clear that he would have done so if the evidence was considered appropriately.

32. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.

Notice of Decision

33. I considered the Practice Statement concerning transfer of proceedings. I am satisfied that the nature and extent of judicial fact finding that is necessary in order for the decision in the appeal to be re-made is such, having regard to the overriding objective, that it is appropriate to remit the matter to the First-tier Tribunal.
34. The decision of the First-tier Tribunal involved the making of a material error of law. I set aside that decision pursuant to section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 ('TCEA').
35. I remit the case to the First-tier Tribunal (Birmingham) for the case to be heard before a judge other than Judge Heatherington pursuant to section 12(2)(b) and 12(3)(a) of the TCEA. The case is to be listed at Taylor House on the next available date.

Signed P M Ramshaw Date 26 September 2016

Deputy Upper Tribunal Judge Ramshaw