Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/02095/2015

THE IMMIGRATION ACTS

Heard at the Royal Courts of Justice
Decision & Reasons Promulgated
On 10 December 2018
On 13 December 2018

Before
UPPER TRIBUNAL JUDGE FINCH

Between
MSMH
Appellant
-and-
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
Appellant: Mrs A. Vatish of counsel, instructed by MBM Solicitors
For the Respondent: Ms S. Cunha, Home Office Presenting Officer

DECISION AND REASONS

BACKGROUND TO THE APPEAL

1. The Respondent is a national of Sri Lanka. He applied for entry clearance as a student on 5 March 2008 but his application was refused. He did not appeal against this decision but made a further application in the same capacity on 17 September 2008. He entered the United Kingdom in October 2008, as a student, and was granted further leave in this capacity until 28 February 2015. However, his visa did not permit him to work and he was encountered, whilst working, on 18 May 2013 and was detained for breaching his conditions of leave.

2. The Appellant applied for asylum on 21 May 2013. His application was refused on 22 January 2015 and he appealed against that decision. First-tier Tribunal Judge Stott dismissed his appeal in a decision promulgated on 27 April 2015. Upper Tribunal Judge Coker granted him permission to appeal on 28 July 2015 and on 6 November 2015 Deputy Upper Tribunal Judge Murray found that there had been an error of law and remitted the appeal to the First-tier Tribunal.

3. First-tier Tribunal Judge Lodge dismissed his appeal in a decision promulgated on 7 October 2016. Upper Tribunal Judge Plimmer granted him permission to appeal on 8 February 2017 and Deputy Upper Tribunal Judge Grimes remitted the appeal to the First-tier Tribunal on 28 April 2017. First-tier Tribunal Judge Broe dismissed his appeal on 15 November 2017. Upper Tribunal Judge Smith remitted the appeal to the First-tier Tribunal on 19 March 2018.

4. First-tier Tribunal Judge James dismissed his appeal in a decision promulgated on 18 September 2018 and the Appellant appealed. First-tier Tribunal Judge Lambert granted him permission to appeal on 15 October 2018.

ERROR OF LAW HEARING

5. At 10.00, counsel for the Appellant explained that she had only been instructed the night before and asked for time to take instructions from the Appellant. As a consequence, I put his appeal to the back of the list. At the start of the hearing I asked Counsel for the Appellant to clarify the Appellant's grounds of appeal, which were arguably generic in nature at many points. She confirmed that, despite paragraph 6 of the grounds, the Appellant had not undertaken any activities within the Sri Lankan diaspora that would render him at risk of persecution on return. In relation to ground three, she also explained that the "expert evidence" referred to was the evidence from the two Sri Lankan lawyers. Counsel and the Home Office Presenting Officer then both made oral submissions and I have referred to these submissions, where relevant, in my findings below.

ERROR OF LAW DECISION

6. In the refusal letter, the Respondent accepted that the Appellant is a national of Sri Lanka. The basis of the Appellant's application for asylum was that he and his father were arrested by the Sri Lankan authorities in the first week of January in 2008. They fell under suspicion when weapons and LTTE propaganda CDs were found in a family property, which had been transferred into the Appellant's name and rented out to a person from the Tamil community. The Appellant was then detained, interrogated and tortured for ten days before his uncle paid a bribe and provided a letter from his school to facilitate his release.

7. He was not charged with any offence at that time and continued to attend school and complete his A levels and remained in Sri Lanka until he came to the United Kingdom, as a student, in October 2008.

8. It is the Appellant's case that he was arrested three days after he returned to Sri Lanka on 25 December 2011 in order to visit his mother. He was detained at Dematuguda Police Station in Colombo for ten days and his uncle managed to obtain his release by bribery. He then left Sri Lanka on 13 or 14 January 2012 after bribing the authorities at the airport. His mother subsequently informed him that a warrant for his arrest had been issued in August 2012.

9. First-tier Tribunal Judge Lambert gave permission to appeal on all five grounds of appeal but, as stated above, ground three is no longer relied upon and grounds five and six were not relied upon at the error of law hearing. The first and second grounds broadly relate to the failure by First-tier Tribunal Judge James to apply the country guidance contained in GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] 00319 (IAC). The failure to set out the country guidance was not determinative of the sustainability of the decision of itself but it did indicate that the manner in which the First-tier Tribunal Judge James approached the appeal was not sufficiently structured. The headnote of GJ and Others states that:
"(2) The focus of the Sri Lankan government's concern has changed since the civil war ended in May 2009. The LTTE in Sri Lanka itself is a spent force and there have been no terrorist incidents since the end of the civil war.
(3) 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 Lankan Constitution in 1983, which prohibits the 'violation of territorial integrity' of Sri Lanka. Its focus is on preventing both (a) the resurgence of the LTTE or any similar Tamil separatist organisation and (b) the revival of the civil war within Sri Lanka.
(4) If a person is detained by the Sri Lankan security services there remains a real risk of ill-treatment or harm requiring international protection.
(5) Internal relocation is not an option within Sri Lanka for a person at real risk from the Sri Lankan authorities, since the government now controls the whole of Sri Lanka and Tamils are required to return to a named address after passing through the airport.
(6) There are no detention facilities at the airport. Only those whose names appear on a "stop" list will be detained from the airport. Any risk for those in whom the Sri Lankan authorities are or become interested exists not at the airport, but after arrival in their home area, where their arrival will be verified by the CID or police within a few days.
(7) The current categories of persons at real risk of persecution or serious harm on return to Sri Lanka, whether in detention or otherwise, are:
(a) 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.
?
(d) A person whose name appears on a computerised "stop" list accessible at the airport, comprising a list of those against whom there is an extant court order or arrest warrant. Individuals whose name appears on a "stop" list will be stopped at the airport and handed over to the appropriate Sri Lankan authorities, in pursuance of such order or warrant.
(8) The Sri Lankan authorities' approach is based on sophisticated intelligence, both as to activities within Sri Lanka and in the diaspora. The Sri Lankan authorities know that many Sri Lankan Tamils travelled abroad as economic migrants and also that everyone in the Northern Province had some level of involvement with the LTTE during the civil war. In post-conflict Sri Lanka, an individual's past history will be relevant only to the extent that it is perceived by the Sri Lankan authorities as indicating a present risk to the unitary Sri Lankan state or the Sri Lankan Government.
(9) The authorities maintain a computerised intelligence-led "watch" list. A person whose name appears on a "watch" list is not reasonably likely to be detained at the airport but will be monitored by the security services after his or her return. If that monitoring does not indicate that such a person is a Tamil activist working to destabilise the unitary Sri Lankan state or revive the internal armed conflict, the individual in question is not, in general, reasonably likely to be detained by the security forces. That will be a question of fact in each case, dependent on any diaspora activities carried out by such an individual".
10. It the Appellant were to be able to establish that an arrest warrant had been issued in relation to him, it is likely that his name would be on the "watch list". Therefore, he would be detained at the airport and the treatment he would suffer in such detention would amount to persecution. Therefore, as counsel for the Appellant submitted, the findings made by First-tier Tribunal Judge James in relation to the arrest warrant were of central importance.

11. First-tier Tribunal Judge James did state in paragraph 22 of his decision that he had looked at the evidence in the round and in paragraph 23 he added that "at the heart of this appeal is the Appellant's credibility and whether he remains a person of interest to the Sri Lankan authorities". However, he did not remind himself of the findings in GJ and Others which are more complex than the self-directions given by the First-tier Tribunal Judge in paragraph 23".

12. In Guidance Note 2011 No. 2 on Reporting Decisions of the Upper Tribunal Immigration and Asylum Chamber confirmed that Practice Direction 12.2 stated that:
"A reported determination of the Tribunal, the AIT or the IAT bearing the letters CG shall be treated as authoritative finding on the country guidance issue identified in the determination, based on the evidence before the members of Tribunal ? that determine the appeal. As a result, unless it has been expressly superseded or replaced by any later CG determination, or is inconsistent with other authority that is binding on the Tribunal, such a country guidance case is authoritative in any subsequent appeal, so far as that appeal:-
a) relates to the country guidance issue in question; and
b) depends upon the same or similar evidence".
13. Furthermore, the manner in which First-tier Tribunal Judge James considered the existence of an arrest warrant, which was of central importance in the light of GJ and Others, was arguably flawed for a number of different reasons.

14. In paragraph 24 of his decision, the First-tier Tribunal Judge James appeared to accept that "the Appellant had contradicted himself when he stated that no charges had been brought when he was detained yet had subsequently stated that the charges were brought later". The fact that this was the view formed by First-tier Tribunal Judge James is confirmed by his finding in paragraph 30 of his decision that there was some inconsistency in the Appellant's answers in the asylum interview as to whether he faced charges in Sri Lanka and, if so, when they were brought.

15. In my view there was no such contradiction as the Appellant had clearly said in answer to question 46 in his substantive interview that he had not been charged when he was detained in 2008. Hiss other answers also indicate that subsequent to this time a legal process had been initiated on the basis that his name had been recorded as the owner of the property in which weapons and LTTE propaganda had been found. For example, in answer to paragraph 49 of the interview at page C15 of the interview record, he stated that prior to his return in 2011 his lawyer had guaranteed that the charges that had been brought against him would be dropped and that this was more than likely because the LTTE had been wiped out.

16. In answer to questions 45 and 46 at pages C14 and C15 of the interview record, he explained that he had not applied for asylum when his student visa was due to expire in October 2011, because he wished to continue his studies in the United Kingdom and also he had received information from his lawyer in Sri Lanka the on-going legal process which had been initiated against him in relation to renting out a room in which weapons and LTTE CDs were found was about to come to an end and that he would need to appear at the court.

17. In answer to question 55 at page C19 of the interview record, he also stated that he had trusted his lawyer and thought that he would not have a problem in Sri Lanka. (He added that when his lawyer was contacted after the Appellant had been arrested he had said that he could not help him as he himself was in difficulties).

18. Furthermore, the Appellant's account of his involvement in legal processes in Sri Lanka was potentially supported by a letter from his Sri Lankan lawyer, Mr. Marsook. This statement appeared to have been dated 26 June 2012 but at paragraph 31 of his decision, First-tier Tribunal Judge James stated that "bearing in mind the letter refers to an attendance and a search for documents made on 2 June 2013 and 18 June 2013 respectively it is possible that the letter has been misdated". Taking into account the low standard of proof to be applied in asylum appeals and the use of the word "possible", I find that First-tier Tribunal Judge James accepted that the date on the letter was a typo and should be disregarded.

19. When considering the weight to be attached to this evidence in paragraph 43 of his decision, First-tier Tribunal Judge James took into account the fact that he had not found the Appellant's account of his arrests and detention credible. This does not follow the approach adopted in Karanakaran v Secretary of State for the Home Department [2000] EWCA Civ 11. The First-tier Tribunal Judge should have taken into account all of the evidence, including the letters from Mr. Marsook and Mr. Seneviratne, before reaching a holistic decision as to the credibility of the Appellant's account.

20. Even if this was not the case and the wording of this paragraph is somewhat opaque, the First-tier Tribunal Judge relied on a submission by the Respondent that such letters are frequently falsified in Sri Lanka but did not provide any reasons for finding that these letters and the receipt on arrest or warrant of arrest had been falsified. He did not find that the identities of the authors of the letters were in doubt. They had given their professional addresses and their enrolment numbers as attorneys at law. The letters were also cogent and well written and explained in detail how the attorneys had checked the validity of the arrest warrant. Similarly, no reasons were given in paragraph 34 of the decision for not giving weight to the content of the Appellant's mother's letter. It correlated with other evidence and there was nothing in it to suggest that it was not a true account of the events in her knowledge. At most, the Judge is critical of the fact that a second letter from his mother had not been obtained.

21. The Home Office Presenting Officer also relied on the fact that the Appellant had not been arrested and charged with terrorism offences in 2008. However, she did not refer to any objective or country evidence to make good her submission.

22. In addition, she relied on section 8 and the delay in applying for asylum. However, this factor alone could not render the First-tier Tribunal Judge's decision sustainable in the light of his failure to give proper weight and consideration to the letters from the two attorneys at law and the arrest warrant they referred to.

23. For these reasons the decision reached by First-tier Tribunal Judge James contained errors of law and must be set aside. Both parties submitted that, even though the appeal had been remitted to the First-tier Tribunal on a number of previous occasions, it was appropriate to remit it again. In particular, I took into account the view of the Respondent which was the confused nature of the grounds of appeal in the current appeal and the fact that the Appellant was not currently in receipt of legal aid would not assist the Upper Tribunal if it was asked to remake the appeal itself.

Decision
(1) The appeal is allowed.

(2) The decision of First-tier Tribunal Judge Mailer is set aside.

(3) The appeal is remitted to Taylor House to be heard by a First-tier Tribunal Judge other than Mailer, Broe, Grimes, Hodgkinson, James, Keane, Lambert, Lodge or Murray.

Nadine Finch

Signed Date 10 December 2018

Upper Tribunal Judge Finch