Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/02966/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 8 December 2016
On 10 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN

Between

SANJEEVARAJAH [P]
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms. S. Jegarajah, counsel instructed by Greater London solicitors
For the Respondent: Mr L. Tarlow, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is a national of Sri Lanka and a Tamil, born on 30 December 1984 in Kayts, Jaffna. He entered the United Kingdom on 28 November 2010 in possession of a Tier 4 student visa, which was subsequently extended to 4 November 2015 but curtailed on 5 September 2013. He made an asylum claim and was given a screening interview on 1 November 2013; interviewed substantively on 4 February 2014 and again on 24 December 2014 and his asylum claim was refused on 4 February 2015.

2. The basis of his claim is that he worked for the LTTE in Colombo and in Trincomalee, gathering intelligence. He was arrested in April 2008 during a round-up, detained for 1 night but not questioned and was then released. He was told by the LTTE that he could leave the organisation in January 2009 and he then went to Malaysia for 1 year, returning to Sri Lanka in June 2010. He was questioned upon his return but allowed to leave the airport. The Appellant was arrested three days later from home, interrogated, tortured and escaped on 28 June 2010 by payment of a bribe.

3. His appeal came before First tier Tribunal Judge Plumptre for hearing on 13 September 2016, having previously been heard in the First tier Tribunal and then successfully appealed to the Upper Tribunal and remitted back to the First tier Tribunal on the basis of inter alia insufficient consideration of the medical evidence.

4. The Appellant did not give evidence before First tier Tribunal Judge Plumptre on the basis that he was unfit to do so.

5. In a decision promulgated on 29 September 2016, the First tier Tribunal Judge rejected the credibility of the asylum claim. She found that the Appellant suffers from paranoid delusions and auditory hallucinations [53]; that he did not fall into any of the risk categories set out in the CG decision of GJ [2013] UKUT 319 (IAC) and that any risk of suicide had not been made out [62] and suitable medical treatment for his mental ill health is available in Sri Lanka [63].

6. An application for permission to appeal to the Upper Tribunal was made in time on 13 October 2016. The grounds in support of the application asserted that the Judge had erred materially in law:

(i) in that she placed weight on a letter from a lawyer commissioned by the Appellant's family, which was not relied upon before her, rather than place weight upon the evidence of Mr Kalupahana, an independent lawyer commissioned by the Appellant's solicitors who had obtained a complete set of court records, including the court proceedings to establish the provenance of the arrest warrant and it was erroneous for the Judge to seek to undermine the totality of the clearly reliable independent documents due to an inconsistency with a one page letter from Mr de Silva, the lawyer instructed by the Appellant's family;

(ii) in the manner in which she considered the medical evidence, in that it was perverse to give some weight to medical evidence from 2014 indicating a possible diagnosis of schizophrenia and ignore more recent evidence which consistently diagnosed the Appellant with PTSD.

7. Permission to appeal to the Upper Tribunal was granted on 11 November 2016 on the following basis:

"3. The court documents were obtained from Sri Lanka following the remittal by the Upper Tribunal. It is arguable that the Judge of the First-tier Tribunal erred by not according them an appropriate level of scrutiny and by not giving more thorough reasons for finding them unreliable than were expressed at paras 45-47. This was an appeal with extensive medical evidence relating to the appellant's mental health. It is arguable that the judge erred by accepting parts of the medical evidence and rejecting more recent medical evidence without giving adequate and sustainable reasons for so doing."

Hearing

8. At the hearing before me, I heard submissions from both parties. Mr Tarlow also sought to rely upon the Respondent's rule 24 response.

Decision

9. I find that First tier Tribunal Judge Plumptre erred materially in law, for the reasons given in the grounds of appeal and identified in the grant of permission to appeal to the Upper Tribunal. The evidence provided by Mr Kalupahana was clearly material to a fair and proper assessment of the risk to the Appellant on return to Sri Lanka, yet nowhere in her decision does the Judge address the contents of this evidence, which comprised certified copies of the Appellant's Sri Lankan court file [3-14 of the Appellant's main bundle refer] and which included an open arrest warrant. The documents appear to emanate from a reliable source and provide prima facie evidence that goes to the issue of risk on return to Sri Lanka in light of [7](d) of the head note in GJ & others [2013] UKUT 319 (IAC) which provides inter alia:

"(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:

?(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."

10. In light of my finding regarding Ground 1, I indicated to Ms Jegarajah at the hearing that I had no need to hear from her with regard to Ground 2 of the grounds of appeal. For the avoidance of doubt, I find that this ground of appeal is also made out, in that it is apparent that the Judge at [50] - [52] gave greater weight to the diagnosis of Dr Jarvis set out in a letter of 6 January 2014 of "First episode psychosis, most likely Schizophrenia" than the subsequent medical evidence that the Appellant is suffering from PTSD, which the Judge found, for no particular reason other than a failure to refer to Dr Jarvis' diagnosis, should be treated with a measure of caution and otherwise failed to engage with.

11. For the reasons set out above, I find that First tier Tribunal Judge Plumptre erred materially in law. I remit the appeal for a hearing de novo before the First tier Tribunal.

Rebecca Chapman

Deputy Upper Tribunal Judge Chapman

6 February 2017