Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/02199/2014

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 1st September 2016
On 2nd September 2016

Before

UPPER TRIBUNAL JUDGE MARTIN

Between

KANTHIRAJ [G]
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Dr Mynott (Broudie Jackson & Canter, Solicitors)
For the Respondent: Mr Chenciner Bates (Senior Home Office Presenting Officer)

DECISION AND REASONS

1. This is an appeal to the Upper Tribunal, with permission, by the Appellant in relation to a Decision and Reasons of the First-tier Tribunal (Judge Herwald) promulgated on 8th May 2015.

2. The Appellant is a citizen of Sri Lanka and his date of birth is 11th February 1985.

3. He arrived in the United Kingdom on 22nd of December 2013 clandestinely. He claimed asylum on 10 January 2014.

4. On 20th March 2014 the Secretary of State made a decision to refuse to grant asylum and on 25th March 2014 to remove him as an illegal entrant.

5. It was the appeal against that decision which came before Judge Herwald on 1st May 2015.

6. It is important to stress at this point that Judge Herwald found the Appellant's claims as to what took place in Sri Lanka to be credible in their entirety. He also found a letter dated 21st January 2014, addressed to the Appellant requiring him to report to an officer in charge at Headquarters on 3rd February 2014 at 08.30 for the purposes of further investigation because he had previously been taken into custody on conviction of suspicious activities to be genuine. Those findings have not been challenged by the Secretary of State.

7. Having made the positive credibility findings the Judge considered, at paragraph 16 (p) of his Decision and Reasons, the country guidance case of GJ and others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) and in particular paragraph 311 thereof which made clear that the government's concern was not with past membership or sympathy with LTTE, but with whether a person is a destabilising threat now. The judge indicated that he had scoured sub paragraph 5 of the head note to GJ and also the full judgement and found that the Appellant could not bring himself within a risk category. He noted that 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. It had been accepted that the Appellant was not on a stop list nor that an arrest warrant had been issued. The Appellant did not claim to have undertaken any diaspora activities against the Sri Lanka government. For those reasons the judge dismissed the appeal.

8. On the Appellant's behalf and in support of his appeal to the Upper Tribunal Dr Mynott argued that the letter of 21st January 2014 bolstered the Appellant's claim. The grounds themselves argue at considerable length and with some force that the list categories in GJ are not an exhaustive list and there may be other persons who can satisfy the Tribunal that they would be at risk based on the facts of their case. That must be right.

9. On the Secretary of State's behalf Mr Bates argued that the letter from the police could simply be part of the monitoring process in relation to people who may be on a "watch list"; monitoring to establish whether the Appellant is of interest. Mr Bates accepted that there were some contradictions in the Judge's finding that while he had not disputed the validity of the letter he did dispute the fact that the Appellant had a conviction and yet the letter referred to one. He argued that given the identification of persons of interest to the authorities is based on intelligence and given that he currently presents no threat and has not acted against the authorities in diaspora activities, he would be unlikely to be detained. He did accept that if he were to be detained that would be amount to persecution. He argued that the Judge's conclusions were properly based on guidance contained in the country guidance case and were not tainted by error of law.

10. The circumstances of this case are quite unusual. It is of note that the country guidance case of GJ was heard in 2013. The Appellant's claims have been accepted as credible and at the time that GJ was being decided the Appellant was actually in custody and being tortured. He was in custody between February 2011 and November 2013. Thus at the time the Upper Tribunal was deciding the risk categories, as a matter of fact this Appellant was of interest to the authorities. That I find dispenses with the argument that he does not fall into a risk category identified by the UT in the country guidance case.

11. Furthermore, two short months after his release from being persecuted in detention the authorities were requiring his attendance once more for questioning. That again indicates that in January 2014 he remained of interest.

12. Of course there is force in Mr Bates argument that that could be part of the monitoring of a person previously involved with LTTE and would not lead to further detention and persecution. However, I bear in mind the very low standard of proof in asylum cases. I need only be satisfied that there is a real risk or a reasonable likelihood that the Appellant will be detained and suffer persecution and on the facts of this case that is an inescapable conclusion which inevitably leads to a result in the Appellant's favour.

13. That being the case I find that judge Herwald did not go far enough in scrutinising the facts of this case and fitting them into the country guidance case, particularly the timeline and the timing of this Appellant's detention and how it fitted with the findings made by the country guidance case. I therefore set aside the First-tier Tribunal's decision, while preserving the unchallenged findings. In remaking the decision, for the reasons given above I allow the Appellant's appeal.

14. The appeal to the Upper Tribunal is allowed.

15. There was no application for an anonymity direction and I see no justification for making one.

Signed
Date 2nd September 2016

Upper Tribunal Judge Martin