Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/02017/2015

THE IMMIGRATION ACTS

Heard at Newport
Decision & Reasons Promulgated
On 6 September 2016
On 23 September 2016

Before

UPPER TRIBUNAL JUDGE GRUBB

Between

S S T
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms C Bayati instructed by Theva Solicitors
For the Respondent: Mr I Richards, Home Office Presenting Officer

DECISION AND REASONS
1. Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) I make an anonymity order. Unless the Upper Tribunal or Court directs otherwise, no report of these proceedings shall directly or indirectly identify the Appellant. This direction applies to both the appellant and to the respondent and a failure to comply with this direction could lead to Contempt of Court proceedings.

Introduction
2. The appellant is a citizen of Sri Lanka who was born on 7 November 1981. He arrived in the United Kingdom on 28 June 2010 with leave as a student valid until 12 June 2012. He claimed asylum on 3 December 2012.
3. The appellant, who is a Tamil, claimed that he had joined the LTTE in Sri Lanka in 2005 and had worked for them monitoring the movements of the Sri Lankan Army in Jaffna. He also delivered parcels and transported LTTE fighters. Following the collapse of the ceasefire in August 2006, he was advised to create a cover in order to carry out his LTTE work and he first studied and then undertook work as an operative in air-conditioning and refrigeration. In 2007, he started work as an air-conditioning operative for a company in Sri Lanka. He continued to work for the LTTE until around June 2008.
4. On 29 November 2009, the appellant claimed that he was abducted by armed men in civilian clothes and taken to an old house where he was tortured and asked about his involvement with the LTTE. During that time, the appellant claims that he was stabbed in the hip and beaten with sticks soaked in a liquid which caused a burning sensation on his back. He subsequently relied upon scarring on his back to substantiate his claim.
5. The appellant was released after his uncle bribed a CID officer and thereafter arrangements were made for him to come to the UK on the student visa he had previously obtained.
6. On 16 January 2015, the Secretary of State refused the appellant's claim for asylum, humanitarian protection and on human rights grounds.
The Appeal
7. The appellant appealed to the First-tier Tribunal. In a determination promulgated on 11 April 2016, Judge Colvin dismissed the appellant's appeal.
8. The judge made an adverse credibility finding and rejected the appellant's account that he had been involved with the LTTE and had been detained and tortured as he claimed.
9. In addition, before the judge the appellant relied upon sur place activities in the UK. In particular, he relied upon his attendance at demonstrations and his involvement with the Transnational Government of Tamil Eelam (TGTE) in the UK and also with the International Centre for Prevention and Prosecution of Genocide (ICPPG) including submitting evidence to the UN in relation to genocide and alleged war crimes by the Sri Lankan government. The judge accepted the appellants sur place activities but concluded that, applying the country guidance case of GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 319 (IAC), the appellant had failed to establish that he fell within a risk category on return to Sri Lanka.
10. The judge also dismissed the appellant's appeal under Article 8.
The Appeal to the Upper Tribunal
11. The appellant sought permission to appeal to the Upper Tribunal on four grounds.
12. Grounds 1 and 2 relate to the judge's decision that the appellant had not established he was at risk as a result of his sur place activities.
13. First, the judge erred in law in considering the risk category set out in para 7(a) of the head note in GJ and Others which, putting it broadly, applied to individuals who are perceived to be a threat to the integrity of Sri Lanka as a single state or are perceived to have a significant role in relation to post-conflict Tamil separatism within the diaspora. The judge had failed properly to take into account the appellant's involvement with the TGTE in the UK which is a proscribed terrorist organisation in Sri Lanka.
14. Secondly, the judge had failed properly to apply the risk category in para 7(c) of the head note in GJ and Others which applied to individuals who had given evidence against the Sri Lankan authorities in relation to war crimes. The judge had failed properly to consider all the evidence concerning the appellant's evidence given via the ICPPG to the UN in this regard.
15. Ground 3 argues that the judge failed properly to give independent assessment to Art 3 of the ECHR having rejected the appellant's asylum claim.
16. In her submissions before me, Ms Bayati placed no reliance upon ground 3 as a stand-alone point independent of the appellant's claim to be at risk on return as a result of his LTTE involvement and sur place activities.
17. Ground 4 argues that the judge failed to provide adequate reason for not relying upon a psychiatric report identifying that the appellant suffered from a number of psychiatric conditions including moderate depression and PTSD consistent with his claimed torture. In particular, it was argued that the judge had failed to give adequate reasons for rejecting the report and had failed to take it into account as part of the "holistic assessment of credibility" as required by Mibanga v SSHD [2005] EWCA Civ 367.
18. On 6 May 2016, the First-tier Tribunal (DJ Macdonald) granted the appellant permission to appeal.
19. On 18 May 2016, the respondent filed a rule 24 response opposing the appeal.
20. Thus, the appeal came before me.
An Additional Ground
21. At the hearing, Ms Bayati sought permission to amend the grounds of appeal to add a fifth ground which challenged the judge's assessment of the medical evidence relating to the scarring present on his back. In particular, the new ground sought to challenge the judge's approach to the expert evidence of Dr Martin at para 48 of the determination where the judge discounted his evidence that the scarring was caused by chemical burns consistent with the appellant's account of torture during his detention on the basis that he had done so on the assumption that air-conditioning technicians in Sri Lanka wear clothing when working and had not considered the possibility that the burns had been caused from chemicals which permeated the clothing. The new ground argues that there was evidence before the judge from the appellant that he was wearing clothing and, in effect, the judge had speculated about the working practices of air-conditioning technicians in Sri Lanka and it was unfair that the matter had not been put to the appellant at the hearing.
22. In addition, the new ground also sought to challenge the judge's treatment of the separate medical report prepared by Professor Lingam on the basis that his conclusion was premised on the appellant as an air-conditioning technician working with no chemicals.
23. Ms Bayati accepted that the new ground was raised at a late stage, the application only having been served on the respondent and filed with the Tribunal the day before the hearing. She submitted that the alleged error was clear and obvious and was fundamental to the appeal given the nature of the claim, being an asylum case, and the significance of the decision to the appellant it was proper to allow the amendment.
24. On behalf of the Secretary of State, Mr Richards opposed the application to amend the grounds. He pointed out that the error had not been identified by experienced solicitors and Counsel who had drafted the earlier grounds of appeal. He submitted that it was not appropriate to allow a further ground of appeal so late in the proceedings, in effect on the eve of the hearing. He confirmed, however, that there was no obvious prejudice to the respondent and that he was in a position to deal with the ground if I granted the appellant permission.
25. The conclusion of the submissions, I accepted Ms Bayati's submissions and I granted the appellant's application to amend the grounds so as to include this new, Ground 5. I also granted permission in relation to it.
26. The submissions, thereafter, address the (now) five grounds although, as I have already indicated, Ms Bayati accepted that ground 3 was not a "stand-alone" point and she made no specific submissions in relation to it.
Discussion
27. I deal first with grounds 4 and 5 which relate to the judge's adverse credibility finding in relation to the appellant's account to have been involved with the LTTE and to have been detained and tortured.
28. Ground 4 concerns the psychiatric report of Dr Dhumad. The judge dealt with this, principally at, paras 52 and 62 as follows:
"52. The appellant was interviewed in May 2015 for the Psychiatric Report prepared by Dr Dhumad. This concludes that the appellant presents with a diagnosis of moderate Depressive Episode and he meets the criteria for PTSD which, in his opinion, started after the torture described by the appellant whilst in detention in 2009/2010. Whilst it is perfectly open for Dr Dhumad to accept the appellant's account of the torture as being the trigger for the PTSD, but this does not necessarily determine the credibility of the appellant's account which is a matter that needs to be considered within the context of all the evidence. In other words, whilst I have no reason not to accept the diagnoses set out in the report, whether these mental states were caused by the claim of torture has to be considered in the round particularly in terms of the credibility issues raised. This is a matter that I return to below."
And then at para 62 the judge said this:
"62. In reaching these findings on credibility I have also taken into account the Psychiatric Report and its conclusions that the psychological distress in the form of PTSD suffered by the appellant started after the torture in 2009/2010 - that is, after exceptionally threatening and catastrophic events namely torture. As stated above, whilst I have no reason not to accept the diagnoses in the report as to the appellant's mental state, this conclusion in relation to the cause being torture is based on an acceptance by Dr Dhumad of the appellant's account - which, of course, he was entitled to do. Whilst I accept that such medical evidence which potentially corroborates an account of torture should in principle be given considerable weight, it nevertheless must still be considered within the context of all the evidence. In my view, there is other substantive evidence as detailed above that significantly undermines the appellant's account of being detained and tortured. In these circumstances and for these reasons I am unable to place weight on this aspect of the Psychiatric Report."
29. Ms Bayati submitted that the judge had accepted the diagnosis of PTSD and that the expert's opinion was that it was consistent with the appellant's claim to have been tortured in 2009/2010. Ms Bayati drew my attention to para 10 of Dr Dhumad's report at page 29 of the appellant's main bundle. She further submitted that the judge had been wrong to discount the report when at para 62 he noted that the report was based upon an acceptance by Dr Dhumad of the appellant's account. That, she submitted, was not correct. Further, in the written ground it is submitted that the judge failed to holistically deal with credibility taking into account the psychiatric report and thereby erred in law as identified in the case of Mibanga.
30. In my judgment, it is clear that the judge did not fall into the Mibanga pitfall. She clearly directed herself that she must consider all the evidence "in the round" at para 52 and then again at para 62 identified by reference back to paras 56-61 a number of matters which undermined, in her view, the appellant's credibility. This was not a case, therefore, where the judge determined the appellant's credibility and then, having done so, discounted the psychiatric evidence said to be consistent with his claim simply because it was inconsistent with the already made adverse credibility finding.
31. Further, it is also clear that the judge took into account the expert's view and accepted that the appellant suffered from PTSD. Even if it was, as the expert noted, consistent with the appellant's claim to be tortured in 2009/2010 the holistic approach which the judge took was entirely proper. The judge had to determine looking at all the evidence whether the appellant's account of being tortured was in fact established. The psychiatric evidence was some evidence supporting that but it was entirely open to the judge, having identified a number of features of the evidence that led her to doubt the appellant's credibility, even in the light of the psychiatric evidence to find that the causal connection between the appellant's PTSD and the actual claimed torture as a result of being detained was not established. The expert had the appellant's account and was entitled to his opinion that the PTSD was consistent with that account. However, the assessment of the appellant's credibility and whether that account was to be accepted was a matter for the judge looking, as she did, at all the evidence including the psychiatric evidence. Leaving aside the issue of scarring raised in ground 5, I see nothing legally improper in the judge's treatment of the psychiatric evidence in the light of all the evidence concerning the credibility of the appellant's account.
32. For these reasons, I reject ground 4.
33. I now turn to ground 5, the new ground concerned with the expert evidence of scarring. The judge dealt with Professor Lingam's evidence at paras 45-47 as follows:
"45. The appellant claims that he was tortured whilst in detention. At his asylum interview he said 'They stabbed me with a knife. They heated plastic pipes and hit me with them. They beat me with sticks. They beat me on the head' (AIR Q145). The respondent points out in the refusal letter that by the time the appellant was describing this ill-treatment to Professor Lingam, the wooden sticks have changed to wooden poles and that he made no mention of these weapons being soaked in - or in any other way - used in conjunction with some oil or liquid at the time of the asylum interview but only made this claim for the medical report. These matters are considered to be significant inconsistencies to undermine the appellant's credibility. It is also noted in this context that the appellant worked for over 3 years in the air conditioning industry as a technician with background information showing that a significant range of chemicals are used in this industry.
46. Professor Lingam has produced two medical reports: in September 2013 and an addendum in March 2016. He has set out his credentials (see above) that include writing more than 600 medico-legal reports on victims of torture. In the first medical report, he found the appellant to have very serious burn scars which are referred to as 'blobs' on the full length and both sides of his back together with two or more on the front of each thigh. His conclusion is that they have been caused by chemical burning and rules out that they could have been self-inflicted injuries because of their location. He found no reason to dispute the account given by the appellant that they were caused by wooden poles soaked in an oil or liquid that caused the burns.
47. The refusal letter refers to aspects of Professor Lingam's first medical report which are said to be unsatisfactory including his stated credentials. Whilst I have noted these and would just make the comment that it is not the most detailed or well-written report, I consider that the major significant issue which seriously undermines the value of the report is the omission of no reference or consideration being given to the fact that the appellant worked in the air-conditioning industry for a number of years. The addendum report in March 2016 picks up this latter point but merely states: 'I took note today that the patient was an air condition technician. He confirms that there is no chemical involved in his work.' In my opinion, this does not alter the fact that Professor Lingam has failed to consider in any depth the significance of the appellant having worked in an industry where it is routine to handle chemicals. I therefore am unable to place any weight on this aspect of either of his reports in terms of causal factors for these burn 'blobs'. I will consider the scar on the thigh/hip area below."
34. I would interpolate here that the judge accepted that the scar on the appellant's thigh/hip area was consistent with an injury caused by a sharp instrument (see para 50). Nothing in relation to this evidence was raised in the grounds or before me and I need say no more about it.
35. As regards the evidence of Dr Martin the judge set that out at paras 48-49 as follows:
"48. For the hearing the appellant submitted a further medical report prepared by Mr Andres Izquierdo-Martin who examined the appellant a few days before the hearing. He agrees that the appellant's scars on the back and thighs are likely to have been caused by a chemical agent. He does consider the appellant's previous employment where some of the products handled could cause chemical burns. In his opinion, the appearance of the scars from such a chemical burn with these products would be very similar to those shown on the appellant but he considers this explanation less likely as the possible cause in view of their distribution on areas of the back usually covered with clothing. The difficulty with this conclusion is that it is based on an assumption that all air-conditioning technicians in Sri Lanka wear clothing when working. The report does not say, for example, whether this needs to be special protective clothing or just any clothing and, if it is the latter, whether it is possible to have burns from chemicals that have permeated the clothing. At the same time, there is no reference in the report as to whether the appellant was questioned about this and whether, for example, he or anyone else he knew had had an accidental injury whilst working in this industry.
49. I consider that these matters necessarily lessen the value of this report in terms of the weight that can be attached to the opinion as regards causation of the chemical burns. At the same time I have not been provided any background information regarding chemical accidents in this industry resulting in burns in which to contextualise the appellant's claim. And, perhaps even more importantly, there is no evidence from the appellant's employer, Fujo Air-Conditioning Ltd known as 'Fuji Cool' as regards working practices and the appellant's own injury record if any."
36. Then, in the course of reaching her adverse credibility finding the judge returned to the expert evidence at para 59 and, in effect, declined to give it any or any significant weight:
"59. As regards the claimed 'white van' kidnap and detention in November 2009 there are two main matters: first, I am not satisfied on the medical evidence before me that the chemical burns suffered by the appellant do not have an alternative cause related to his work as a technician in the air-conditioning industry. For the reasons stated above, I do not find any probative value in the reports of Professor Lingam on this question and I find that the report of Mr Izquierdo-Martin lacks sufficient consideration of this alternative possible cause for the burns so as to be able to place any or any significant weight on his findings. In addition, there is the inconsistency in the appellant's account that he did not refer to the sticks/poles being soaked in oil or liquid at the asylum interview. In short, on the evidence before me I am not satisfied even to the low standard of proof that the appellant has shown that his injuries were caused by torture at the hands of the Sri Lankan authorities."
37. Both expert reports were supportive of the appellant's account. Professor Lingam's supplementary report (at page 3 of the additional extra supplementary bundle) confirm that the scar was "diagnostic of corrosive burn". However, Professor Lingam also states, as the judge pointed out, that the appellant confirmed to him that there were "no chemicals involved in his work". To that extent, therefore, Professor Lingam did not consider the possibility that the appellant's injuries could have been caused through his work rather than his claimed torture. Standing alone, I would not conclude that the judge was not entitled, seeing the evidence in the round, to take the view that she did of Professor Lingam's report. Not every judge would necessarily have rejected its supportive value on this basis, but that in itself does not identify an error of law.
38. However, in my view, the judge did err in her consideration of Dr Martin's report. Even if Dr Martin's report was based on the "assumption that all air-conditioning technicians in Sri Lanka wear clothing when working", it was the appellant's own evidence that he was wearing clothing, in fact protective clothing at all times. At para 47 of his witness statement (at page 18 of the supplementary bundle) the appellant said this:
"While I was working for Fuji Cool as a technician, I never let my body to be exposed to dangerous chemicals. I always took safety measures and wore special protective clothes and boots, while I was working there."
39. There was, therefore, before the Judge a basis on which Dr Martin's report relevantly addressed the aetiology of the chemical burns on the back of the appellant on the basis, if the Judge accepted the appellant's evidence, that the appellant was wearing clothing. The judge, in my view, speculated in para 48 of her determination about the effect of clothing, including protective clothing, in protecting the appellant from burns by any chemicals as a result of permeating his clothing. There was no evidence concerning this before the judge and she was not, as the grounds point out, an expert. Further, if the judge considered that the issue of whether the appellant was wearing protective clothing was relevant to assessing Dr Martin's report and the appellant's credibility, that should have been raised with the appellant (and his representative) at the hearing given the appellant's unchallenged evidence that he was wearing protective clothing at all times. Ms Bayati told me, and Mr Richards did not seek to suggest otherwise, that no questions were asked at the hearing about the appellant's clothing which he wore whilst working. In my judgment, the judge's criticism of Dr Martin's report that he failed to deal with any "alternative cause" relating to the work of the appellant as a technician in the air-conditioning industry (at para 59 of the determination), was not, in the circumstances, an adequate reason for placing, in effect, no weight on the supportive evidence of Dr Martin.
40. For these reasons, I accept ground 5 and that the judge erred in law in reaching her adverse credibility finding in her treatment of Dr Martin's report.
41. Whilst I accept that the judge gave a number of reasons for her adverse credibility finding, I am satisfied that the error is a material one in the sense that I cannot be satisfied that her finding would necessarily have been the same. Indeed, at para 59, the judge refers to the medical evidence scarring and its implication as one of the "two main matters" relevant to her assessment of the veracity of the appellant's claim to have been kidnapped and detained in November 2009.
42. For these reasons, therefore, the judge's adverse credibility finding is materially flawed and cannot stand.
43. I now turn to the two grounds (Grounds 1 and 2) concerned with the challenge to the judge's finding in respect of the appellant's sur place activities.
44. The judge dealt with the evidence at paras 53-55 as follows:
"53. The appellant says that he first took part in a demonstration in November 2010 and that since then he has annually participated in the Great Heroes Day event held in ExCel Hall and in the Mullivaikkal Genocide Day event. In the latter part of 2013 he took part in two rallies held in London and in February 2014 he attended an international conference on the issue of Tamil land grabs. He submitted evidence to the UN appointed team looking at allegations of mass killings and human rights violations and assisted the International Centre for Prevention and Prosecution of Genocide (ICPPG) in collecting evidence from war victims. In 2015 he took part in two demonstrations outside Downing Street and in Westminster. He is currently helping the Transnational Government of Tamil Eelam (TGTE) in its million signature campaign. He says that he participated at these events but did not organise or speak at them.
54. The appellant has submitted a letter from the National Liberal Party dated May 2015 confirming that the appellant is a member who has attended meetings and taken part in activities on behalf of the NLP. A letter from the British Tamils Forum dated January 2015 to the appellant confirms his life membership with the organisation. A letter from the TGTE dated February 2016 states that the appellant has volunteered in public events in the UK in support of creating a free Tamil Eelam in Sri Lanka by attending meetings, events and public demonstrations. A letter from the ICPPG dated February 2016 says that the appellant has participated in meetings/events and has provided written evidence to be submitted to the UN. The appellant has also submitted two photographs showing his attendance at a TGTE meeting in January 2016. He has also submitted six other photographs which he identified as having been taken in 2015 at the Downing Street demonstration and when distributing leaflets for the NLP.
55. This evidence shows that the appellant has taken part in sur place activities as part of the Tamil diaspora. However, as Mr Clarke submitted for the respondent, there are only a few photographs and there is nothing to show that he has a profile either at the demonstrations or within the various organisations. He has not submitted a copy of his claimed evidence to the UN appointed investigation team."
45. At para 65, the judge then reached a conclusion in relation to the appellant's sur place activities applying the risk category identified in para 7(a) of GJ and Others as follows:
"65. A matter that might place the appellant at risk is his involvement in diaspora activities in the UK. I do not find that the appellant's claim that these activities have come to the attention of the authorities in Sri Lanka as shown by family members being interrogated, arrested and required to weekly report to the police. This is because the appellant has not attempted to obtain any independent corroboration of this, such as, the requirement on his uncle and brother to report to the police. The appellant has submitted letters from several Tamil diaspora organisations including the British Tamil Forum which was proscribed as a terrorist organisation but this was recently lifted as announced in the Colombo Gazette (November 2015). Whilst he sets out the demonstrations that he has attended - approximately five since 2010 - the six photographs submitted appear to relate only to one in 2015 outside Downing Street. And, as stated above, the appellant accepts that he has not organised any of these events or spoken at them. At the same time, the appellant has not corroborated his claim that he has given written evidence to the UN investigating team. On this evidence I find that there is nothing to show that it is likely that he has a profile that would place him at risk under category (a) of GJ: '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'."
46. Dealing first with ground 1, it is said that the judge failed to take into account that the TGTE is a proscribed organisation. Whilst the judge refers to the fact that the British Tamil Forum has ceased to be proscribed since November 2015, she erred by failing to consider that the TGTE remained proscribed. Ms Bayati pointed out that the appellant's involvement was supported by a letter from the National Liberal Party and from the TGTE itself (at page 27 of the supplementary bundle and page 37 of the additional supplementary bundle respectively). Ms Bayati submitted that applying the risk category in para 7(a) of GJ and Others the appellant's involvement with the TGTE was capable of being perceived by the Sri Lankan authorities on return as giving the appellant a "significant role" in the "post-conflict Tamil separatism within the diaspora". Ms Bayati submitted that on return to Sri Lanka the appellant was likely to be questioned and following HJ (Iran) v SSHD [2010] UKSC 31 the appellant could not be required to lie about his involvement and he was, therefore, at risk of detention and subsequent ill-treatment.
47. Mr Richards submitted that the judge had found that the appellant did not have a profile at the demonstrations or in organisations including the TGTE which would place him at risk on return to Sri Lanka and he relied upon the judge's findings in paras 53-55.
48. I accept Ms Bayati's submission that the judge did not consider the implications to the appellant based upon the fact that the TGTE is a proscribed terrorist organisation in Sri Lanka. It is well-recognised that the Sri Lankan authorities have a sophisticated intelligence monitoring those who pose a risk to the Sri Lankan state in their activities in the diaspora including in the UK (see, for example, GJ and Others at para 8 of the head note). The significance to the Sri Lankan authorities of the appellant's involvement in sur place activities in the UK cannot be divorced from the nature of the organisation to which those activities relate. Whilst the judge made a finding that the appellant did not have a significant profile to attract the attention of the Sri Lankan authorities, she did so without considering the fact that the TGTE is a proscribed terrorist organisation. It is not clear from the judge's reasoning what view she would have taken about the significance of his TGTE activities if she had had that factor in mind. In assessing, therefore, the risk to the appellant on return as a result of his activity with the TGTE the judge erred in law by failing to take into account the fact that the TGTE is a proscribed terrorist organisation and whether that gave rise to a heightened significance for the Sri Lankan authorities on return and, if so, what if any risk he was likely to face on return.
49. As regards ground 2, the evidence before the judge was that the appellant had submitted through the ICPPG written evidence to the UN concerned with genocide and war crimes. A letter from the ICPPG dated 29 February 2016 (at page 39 of the additional supplementary bundle) corroborated this fact. The judge was, therefore, in error to state in para 65 of her determination that there was no corroboration for the appellant's claim that he had given written evidence to the UN. Whilst the risk category in para 7(c) of the head note of GJ and Others relates to individuals who have given evidence to the "Lessons Learned and Reconciliation Commission" implicating the Sri Lankan authorities in alleged war crimes, subsequent to that the UNHCHR appointed experts and called for evidence in such matters. The potential expansion of the risk category set out in para 7(c) of the head note in GJ and Others was recognised by the Court of Appeal in MP (Sri Lanka) and Another v SSHD [2014] EWCA Civ 829 in respect of witnesses at future similar enquiries into Sri Lankan war crimes. The UN enquiry is just such "future enquiry".
50. In my judgment, the judge erred in law in failing to take into account the evidence that the appellant had provided the very kind of evidence against the Sri Lankan government which could, by analogy, fall within the risk category in para 7(c) of the head note in GJ and Others. I do not accept Mr Richards submission that the appellant's evidence was submitted in confidence and that there was no risk of the appellant coming to the attention of the Sri Lankan authorities. As is clear from the letter dated 29 February 2016 from the ICPPG, the appellant has consented to his evidence being used in future criminal or civil prosecutions against Sri Lankan government and military officials. Whilst the evidence may not, therefore, at present be in the public domain, that letter raises the real risk that it will fall into the public domain in the future.
51. In my judgment, therefore, grounds 1 and 2 are made out and that the judge erred in law in assessing the risk to the appellant on return based upon his sur place activities.
Decision and Disposal
52. Consequently, for the reasons I have given, the judge materially erred in law in dismissing the appeal.
53. Thus, the judge's decision is set aside and the appeal must be reheard de novo. Both representatives accepted that if this was my conclusion then it was appropriate to remit the appeal to the First-tier Tribunal to be reheard.
54. Thus, the appeal is remitted to the First-tier Tribunal for a de novo rehearing before a judge other than Judge Colvin.

Signed

A Grubb
Judge of the Upper Tribunal

Date: