Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/03315/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision sent to parties on:
On 4 August 2016
On 6 October 2016

Before

UPPER TRIBUNAL JUDGE GLEESON

Between

K J

[ANONYMITY ORDER MADE]

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

DECISION AND REASONS
Anonymity order
Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I continue an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original Appellant. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.
Decision and reasons
1. The appellant appeals with permission against the decision of the First-tier Tribunal dismissing his appeal against the respondent's decision to set removal directions to Sri Lanka after refusing international protection under the Refugee Convention or humanitarian protection grounds, or leave to remain on human rights grounds.
2. The appellant is a citizen of Sri Lanka. At a hearing on 26 May 2016, it was agreed that the appellant is a Tamil from Kavali in the Vanni who was tortured by the Sri Lankan authorities within 6 months before 22 August 2014, and that he has scarring which is diagnostic of that treatment; PTSD and depression.
3. He is a person to whom paragraph 339K of the Immigration Rules HC395 (as amended) applies. He has been the subject of persecution and/or serious harm before coming to the United Kingdom and the Rules require that to be regarded as a serious indication of a well-founded fear of persecution for a Refugee Convention reason or real risk of suffering serious harm engaging the Qualification Directive 2004/83/EC, unless there are good reasons to consider that such persecution or serious harm will not be repeated.
4. I set aside the First-tier Tribunal decision and ordered that it be remade on a date to be fixed, but that a further oral hearing might not be necessary, depending on the submissions received from the parties, according to the directions set out at paragraph 9 of my decision. So far as relevant to this decision, the directions were as follows:
"(a) Within 21 days of the sending out of this decision, the appellant shall file and serve written submissions (limited to 10 A4 pages) in both electronic and hard copy format, setting out concisely all issues and arguments in relation to the remaking of the decision in this appeal on which the appellant relies, in particular those arising out of the Upper Tribunal's decisions in KV (scarring - medical evidence) [2014] UKUT 230 (IAC) and GJ (post-civil war: returnees) Sri Lanka CG (Rev 1) [2013] UKUT 319 (IAC).
(b) If the appellant considers that an oral hearing is required, he should explain why in his submissions and provide a time estimate, indicating whether any witness will be called (attaching a witness statement for each such witness) and whether an interpreter will be required.
(c) Within 21 days from receipt of the appellant's written submissions, and in any event, within 42 days from the sending out of this decision, the respondent shall file and serve written submissions (limited to 10 A4 pages) in both electronic and hard copy format, setting out concisely her response to any submission by the appellant, and all issues and arguments in relation to the remaking of the decision in this appeal on which the appellant relies, in particular those arising out of the Upper Tribunal's decisions in KV (scarring - medical evidence) [2014] UKUT 230 (IAC) and GJ (post-civil war: returnees) Sri Lanka CG (Rev 1) [2013] UKUT 319 (IAC).
(d) If the respondent considers that an oral hearing is required, she should explain why in her submissions and provide a time estimate, indicating whether any witness will be called (attaching a witness statement for each such witness) and whether an interpreter will be required. ?
(h) Liberty to apply."
My decision was sent out on 4 June 2016. On 27 June 2016, slightly out of time, submissions were received from the appellant. No submissions in reply have been received from the respondent and no application has been made for an extension of time under the liberty to apply given in my directions.
5. I therefore proceed to determine this appeal on the basis of the agreed facts and the submissions of the appellant.
Appellant's submissions
6. Mr Lewis for the appellant submits that the respondent cannot be said to have identified any good reason to conclude that the serious harm which this appellant suffered in Sri Lanka would not be repeated. He relies on the concession made by the respondent in GJ and others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) that 'individuals in custody in Sri Lanka continue to be at risk of physical abuse, including sexual violence, and that such risk is persecutory'.
7. The appellant emphasises that during his detention in June 2014 he was accused of having a continuing involvement with the LTTE, and asked (as set out in his statement) to give away the identities, locations and plans of the LTTE. His explanation, that he had only a very minor role in the LTTE, for just a few months, dealing with small jobs relating to logistics, was not accepted. He had been tortured to obtain information about the current whereabouts of senior members of the LTTE, and its arms caches, neither of which he possessed. The appellant's statement stated that he was released on payment of a bribe but had signed what he thought was a confession document, written in Sinhala. The appellant relies on the Secretary of State's concession in GJ that given the prevalence of bribery and corruption in Sri Lanka, leaving through the airport without difficulty was not probative of a lack of adverse interest in an individual.
8. The appellant relies on country evidence, including that of the respondent's Country of Origin report, that the risk to those thought to have ongoing LTTE links remained, again as set out by the Upper Tribunal in its country guidance in GJ. He notes that his interrogation was as recent as 2014 and contends that he remains at risk.
Secretary of State's case
9. As already stated, the Secretary of State has chosen not to respond to those submissions. Her Country of Origin Unit has published a document entitled Tamil Separatism, Sri Lanka, August 2016, approved on 13 July 2016. At section 6 of that document it indicates some improvement but that Tamils continue to be monitored, and human rights abuses still occur, including torture. Tamil returnees from overseas continue to be arrested at the airport, interrogated and detained.
10. I have regard to the severity of the appellant's scarring and his PTSD and depression. Absent any submissions from the respondent, I am not satisfied that in his case, there are good reasons to consider that the persecution and serious harm he has suffered will not be repeated.

DECISION

11. For the foregoing reasons, my decision is as follows:

The making of the previous decision involved the making of an error on a point of law and has been set aside. I remake the decision by allowing the appeal on asylum and human rights grounds.

Date: 4 August 2016 Signed Judith AJC Gleeson
Upper Tribunal Judge Gleeson