Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/03773/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 3 March 2016
On 7 April 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE RAMSHAW

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant
And

ms b b b
(ANONYMITY DIRECTION made)

Respondent

Representation:

For the Appellant: Mr C Avery, a Home Office Presenting Officer
For the Respondent: Ms B E Jones of Counsel

DECISION AND REASONS

Introduction
1. Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make 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.
2. This is an appeal by the Secretary of State against the decision of the First-tier Tribunal allowing the appeal of Ms B B B ("the claimant"). The claimant had appealed against the decision taken on 27 February 2015 refusing her claim for asylum.
Background Facts
3. The claimant is a citizen of Sri Lanka who was born on 22 August 1983. The claimant came to the UK on 6 March 2011 on her own passport with a student visa valid until 12 December 2012. On 12 December 2012 she applied for further leave to remain as a student and this was refused on 5 July 2013 with a right of appeal. She then lodged an appeal which was later withdrawn in February 2014. She claimed asylum on 13 January 2014. That application was refused by the Secretary of State because she did not accept that the claimant's husband was killed by the Sri Lankan authorities or that the claimant was detained because the authorities wanted to ask questions about her husband following his death. The Secretary of State did not accept that there was an extant court summons or that the claimant had received injuries from her time in detention. The respondent did not accept that the claimant would be at risk on return to Sri Lanka considering that her claim to be involved in disapora activities were very low level and that she had only been a member of the British Tamils for one year.
The Appeal to the First-tier Tribunal
1. The claimant appealed to the First-tier Tribunal. In a determination promulgated on 10 September 2015 First-tier Tribunal Judge S L Farmer allowed the claimant's appeal. The First-tier Tribunal found that the claimant would be at risk on return to Sri Lanka on the basis of the current circumstances in her home area, the level of militarisation, the female headed household, her previous history of detention and arrest, the summons and the fact that she would be of interest to the authorities on her return all of which provided additional risk factors. The First-tier Tribunal found that the claimant's activities in the British Tamil Forum ('BTF') in the UK is recent and she plays no active role in the BTF which would raise her profile. The judge therefore found that the claimant would not fall within paragraph 7(a) of GJ and Others (Post civil war: returnees) Sri Lanka CG [2013] UKUT 319 (IAC) ('GJ'). The judge concluded that the claimant fell within paragraph 7(d) of GJ.
The Appeal to the Upper Tribunal

2. The Secretary of State sought permission to appeal to the Upper Tribunal. On 6 October 2015 First-tier Tribunal Judge Ford refused permission to appeal. The Secretary of State renewed her application for permission to appeal to the Upper Tribunal and on 2 November 2015 Upper Tribunal Judge Smith granted the Secretary of State permission to appeal. The grounds set out that the judge has arguably erred in finding that the claimant's name would appear on a stop list on the basis of a court summons that the judge assumed was still in force against the claimant when there is no evidence to that effect. The grant of permission sets out that there is arguably a conflict between the judge's findings at paragraph 35 and at paragraph 38 taking into account the findings in GJ that the current interest by the Sri Lankan authorities tends to be a military threat and to destabilise the current regime. Thus, the appeal came before me.
Summary of the Submissions
The Secretary of State's Submissions
3. The grounds of appeal assert that the First-tier Tribunal Judge has misdirected himself in allowing the claimant's appeal on the basis that the claimant falls within the criteria set out in paragraph 7(d) of GJ. It is asserted that it was incumbent upon the judge to consider whether the claimant's account fits the category of person that is the current focus of the Sri Lankan Government's concerns. Reliance is placed on the summary of findings at paragraphs 2 and 3 of the GJ case which set out:
(2) The focus of the Sri Lankan Government 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 disapora 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 the territorial integrity of Sri Lanka. Its focus is on preventing both (a) the resurgence of the LTTE or any similar Tamil separatist organisations and (b) the revival of the civil war in Sri Lanka.
4. It is asserted that the judge failed to identify why the claimant would be of any interest post 2009 given her profile.
5. It is also submitted that the judge failed to consider the evidence presented to him. It is asserted that the judge considered all the evidence produced in support of the claimant and concludes on her credibility prior to any consideration of the points raised by the respondent in the Reasons for Refusal Letter. Specifically, it is asserted that the judge failed completely to consider the alternative reasons given for the claimant's husband's death and her injuries as highlighted at paragraph 23 of the Reasons for Refusal Letter.
6. It is also submitted that the judge erred in his conclusion, at paragraph 31 in that he wrongly places the burden of disproving the claimant's case on the Secretary of State. It is submitted that any assertion that the newspaper report relied upon by the respondent to demonstrate that the claimant's account was fabricated or was inaccurate could and should have been disputed by the claimant in the form of further evidence. All the evidence should have been looked at in the round and given the weight it deserved in light of the objective evidence.
7. Mr Avery submitted that the claimant had had very limited involvement in the LTTE and the focus of her claim was on the basis of the involvement of her husband and the authority's interest arising from his activities. He asserted that the Secretary of State considers that the judge did not take the context into account when considering risk on return as the thrust of the authority's interest in Sri Lanka is on people who are trying to destabilise the state. With regard to the first ground of appeal he submitted that the claimant's profile does not sit with the findings of the panel in GJ and the judge has not set out how the claimant would be at risk as a result of her limited involvement which was some time ago and the fact that her husband has also been dead for some time now. With regard to the second ground of appeal he asserted that the judge had formed the view on the claimant's credibility before taking into account the considerations of the Secretary of State as set out in the Reasons for Refusal Letter. Mr Avery referred me to paragraph 30 of the decision and pointed out that the judge had already made the finding regarding the claimant's credibility previously. He asserted that the judge had not really considered the alternative set out by the Secretary of State with regard to the background leading to the death of the claimant's husband. In relation to ground 3 Mr Avery submitted that the way the evidence was dealt with by the judge appears to have placed responsibility on the respondent to back up the evidence regarding the background about the death of the claimant's husband. He asserted that there was no reason to question the information provided as it accorded with what the claimant said about the death of her husband. He asserted that the judge followed the submissions made by the claimant's representative which were that the Secretary of State should have followed the pathways identified by the representative. Mr Avery asserted that that was not necessary; the evidence was available from the internet and in effect the judge was placing the burden of proof on the respondent whereas it was for the claimant to prove her case. Mr Avery referred to the grant of permission wherein it was recorded that the judge relied on the fact that there was a previous summons and had assumed that there would be one in existence now. Mr Avery submitted that the First-tier Tribunal Judge erred as there was no evidence that there was an extant summons issued. He asserted that on the basis of where the interest of the authorities now lies there is no reason to assume that they would have pursued a summons against the claimant. He asserted that the conclusions of the judge at paragraph 35 were in error. In accordance with GJ there is no particular risk as a result of militarisation in the claimant's own area but in any event the claimant could relocate to Colombo. This was not addressed by the judge.
8. Ms Jones submitted that the judge did not ignore the Secretary of State's evidence but declined to accord it weight. She asserted this was the only possible decision the judge could have taken and that it was highly inappropriate of the Secretary of State to seek to rely on the evidence. This was an anonymous comment by an unidentified person on a website. There was no way that the judge could test the veracity of that person. She submitted that the evidence was inherently unreliable. With regard to the assertion that the judge assessed credibility before considering the evidence of the Secretary of State she submitted that if the judge had merely set out that paragraph earlier in the decision there would be no basis to this ground. She submitted that this was merely descending into too great a level of detail. Ms Jones submitted that the judge found that the summons was not a forgery and that the claimant was found not to have exaggerated her claim, that there was significant expert evidence produced in support of her claim and therefore there was a number of reasons taken into consideration by the judge who took the evidence in the round. It was a matter for the judge to place the relevant weight on the evidence. She submitted that the first ground of appeal was in essence a complaint that the judge should have found the claimant was not at risk on return because she did not have a high enough profile. She referred to the case of GJ and submitted that the claimant was arrested and interrogated after the end of the civil war. It was not part of a general roundup of people. She asserted that the summons was only part of the overall picture and that the judge was correct to find that it was relevant. She submitted that courts do not just stop pursuing somebody and that it was very likely that having found that the claimant was credible in her account of being detained and tortured that the authorities would have continued to pursue the issue of a summons and an arrest warrant after she had left the country. It was not an irrational conclusion for the judge to have arrived at that an arrest warrant would have been issued. The judge made a finding that there was a real risk that the arrest warrant would have been served and that the claimant would have been on a stop list. However, it was not just on the basis of the summons that the judge considered the claimant would be at risk. Ms Jones referred to the case of PP (Sri Lanka) v SSHD [2014] EWCA Civ 1828. She asserted that the judge has given sufficiently detailed reasons as to why the claimant would be at risk on return namely that a warrant would have been issued and that there is a risk to Tamil women in female households. The claimant's mother has subsequently passed away so she would be the head of the household. She would not be able to relocate as she would have to return to a named address therefore she would have to return to her home area and would be expected to stay there.
9. In reply Mr Avery submitted that the way the judge dealt with the summons was not adequate, that the finding at paragraph 29 was simply that the judge accepted that there had been a summons but there was no finding that an arrest warrant had been issued. He submitted that in this case the position in Sri Lanka has shifted considerably. The claimant was arrested in 2010 which was not long after the end of the civil war. He asserted that even if the claimant has to go back to her home area she does not have to stay there. He submitted that the claimant is a well-educated woman and that the judge should have addressed the issue that the claimant could go to Colombo.
Discussion
10. Ground 1 - misdirection in allowing the appeal on the basis that the claimant falls within paragraph 7(d) of GJ. The judge found that the claimant's activities in the British Tamil Forum (BTF) did not give rise to a risk on return to Sri Lanka because the claimant's membership is recent and that she plays no active role in the BTF which would raise her profile. The focus of the authorities is on preventing the resurgence of the LTTE or the revival of the civil war in Sri Lanka. The Secretary of State asserts, therefore, that the First-tier Tribunal failed to identify why the claimant would be of any interest post the 2009 ending of the civil war given her profile. At paragraph 35 of the decision the judge found that the claimant would be at risk on return for a number of reasons. The judge set out:
"I find that the appellant would be at risk on return, on the basis of the current circumstances in her home area, the level of militarisation, the female-headed household, her previous history of detention and arrest, the summons and the fact that she would be of interest to the authorities on her return all of which provides additional risk factors.
For the reasons given above I find that the appellant does fall within the criteria set out in paragraph 7(d) of GJ".
11. The judge had considered earlier in the decision the applicability of GJ to women as considered in the case of PP (Sri Lanka) [2014] EWCA Civ 1828. The judge referred to paragraph 32 onwards of the decision in PP. The Court of Appeal in PP found:
"32. I agree that paragraph 10 can literally be so read. However, it is clear in the context that the section had a wider function in the reasoning of the Upper Tribunal because the Upper Tribunal makes no further evaluation of the risk attaching to the fact that the appellant had been raped in detention significantly after the conflict had ended. The Upper Tribunal, as I read it, was saying that there was no evidence to suggest that Tamil women might form an additional category of risk in addition to the risk categories actually identified in GJ.
33. On that basis, as I see it, there was an error of law because we know that the conclusion was in conflict with the UNHCR eligibility guidelines in the passage that I have quoted already.
34. Moreover, that interpretation is confirmed by the subsequent material that we have been shown concerning the vulnerable position of Tamil women. I am not saying that the evidence that we have seen establishes that they are entitled to be treated as a separate category but there is certainly, as I see it, sufficient material to give rise to more in depth reasoning and enquiry on the Tribunal's part than is to be found at paragraph 10.
35. There is a further point in paragraph 11 the Upper Tribunal has assumed that the change in circumstances identified in GJ, namely the defeat of the LTTE and subsequent realignment of the political situation would have a similar effect on the ground in the Tamil territories in the north and the east of Sri Lanka. In terms of intelligence capacity, we know from the GJ decision that the government of Sri Lanka's method identifying LTTE sympathisers is now much more sophisticated and technically based than it used to be. For example, it monitors the internet and mobile telephone calls and so on. But it does not follow that similar changes would have occurred in the Tamil areas, which, as we understand it, remain militarised zones with high proportions of soldiers to civilians. For the position on the ground that purpose has not significantly changed. The high level of militarisation may be such as to put vulnerable individuals such as members of households headed by women at risk."
12. The judge (at paragraph 17) also referred to the UNHCR guidelines which set out some cases that may be in need of international protection and identified factors contributing to increased insecurity and vulnerability of women in the north and east of Sri Lanka. Those factors included large numbers of female headed households, women's weak economic position and high militarisation. The judge also referred to the US State Department's Report 2014 which sets out that sexual violence and discrimination against women were common. The judge (at paragraph 19) referred to the Home Office Country Information Report which at paragraph 1.3.8 sets out that Tamil women especially widows have disappeared and that surrenderees are vulnerable to sexual harassment, exploitation or assault by army personnel and other militias. The judge took that background evidence into consideration in addition to the findings with regard to women in the case of PP. At paragraph 35 of PP the Court of Appeal held:
"? So the position on the ground for that purpose has not significantly changed. The high level of militarisation may be such as to put vulnerable individuals such as members of households headed by women at risk.
I would therefore hold that the failure of the Upper Tribunal to perceive this distinction and to evaluate its implications constitutes a material error of law in the assessment of risk on return."
13. Whilst I accept the Secretary of State's assertion that the interest of the Sri Lankan authorities is now focused on those seeking to destabilise the Sri Lankan state and are working for Tamil separatism, it is clear from the case of PP that the court considered that there is a need for an in depth reasoning and enquiry into the particular facts of the case to identify whether the particular circumstances of an claimant in a position such as the claimant in the instant case might be at risk on return. As the Court of Appeal held in PP the Upper Tribunal in that case had erred in concluding that there was no evidence to suggest that Tamil women might form an additional category of risk in addition to the risk categories actually identified in GJ. The Court of Appeal specifically set out that there was no entitlement to be treated as a separate category but that there certainly is sufficient material to give rise to a more in depth reasoning and enquiry.
14. The judge in this case found the claimant's account to be credible. The claimant was arrested in August 2010 (after the end of the civil war) and was detained, assaulted and raped. She was questioned about her husband and also her own involvement in the LTTE. The claimant did not believe that her husband had committed suicide. Having accepted the claimant's account as credible the finding of the judge that the claimant would be at risk on return to Sri Lanka on the basis of the current circumstances in her home area, the level of militarisation, as a female headed household together with her previous history of detention and arrest was a finding that was open to the judge in light of the case of PP. This would be the case whether or not the judge had found that the claimant fell within paragraph 7(d) of GJ (i.e. on the basis of being on a stop list.
15. It does not appear to have been argued before the First-tier Tribunal that the claimant could re-locate to Colombo and this was not raised as a ground in the grounds of appeal. The claimant would be required to return to a named address and internal re-location is not an option within Sri Lanka for a person at real risk from the Sri Lankan authorities (headnote 5 of GJ). In the absence of arguments before the First-tier Tribunal I do not consider, in the circumstances, that it was incumbent upon the judge to consider re-location as an option.
16. I accept the respondent's submissions that the judge did not make a finding that there was an arrest warrant or an extant court order. The judge considered the copy of the summons issued in Sri Lanka in 2010. The judge found that the claimant was of sufficient interest to the authorities for them to want to prosecute her. She found that the document established that the claimant was summoned as stated but did not consider whether that summons remained extant. The judge has not given reasons as to why a summons issued in 2010 would result in the claimant's name appearing on a computerised stop list which is the category of persons identified as at risk in paragraph 7(d) of GJ. However, as set out above, there were sufficient reasons that it was open to the judge to conclude that the claimant was at risk on return. I do not consider that an error on this issue would, on the facts of this case, be material to the outcome.
17. Ground 2 - the judge did not take into consideration the evidence presented to her by the Secretary of State before concluding on the claimant's credibility. At paragraph 31 the judge set out:
"? however, I accept Ms Easty's submission that the respondent has not undertaken the most basic research to verify the information or identify or the truth of the contents, or prepare a statement from the individual concerned. Ms Easty provided links on how this could be done. Whilst I have not carried out the searches and Ms Easty cannot herself give evidence on this, I accept in principle her submissions on this point."
18. The judge clearly did take into account the points raised by the Secretary of State in the Reasons for Refusal Letter. At paragraph 31 the judge set out that she had considered in particular paragraph 23 of the Reasons for Refusal Letter. Merely because the judge sets out that she has considered this evidence and that the paragraph in which she sets it out follows from an overall assessment of credibility of the claimant does not lead inexorably to a conclusion that the judge only took this into consideration after having considered all the evidence and reached a finding on credibility. There must be some structure to a written decision. I do not consider, therefore, that it necessarily follows that the judge had reached her overall conclusion on credibility prior to considering the points raised by the Secretary of State with regard to the evidence of the claimant's husband's death.
19. Ground 3 - the judge wrongly placed the burden of proving the claimant's case on the Secretary of State. It is clear that the judge accepted that the Secretary of State had not undertaken the most basic research to verify the information, identity, truth of the contents or prepare a statement in relation to the comments dated 25 August 2010 from "Kadz 1993" which was posted in relation to an article from a website of Sri Lankan newspapers. Whilst I accept that the judge's comments could be interpreted as shifting the burden of proof to the Secretary of State, the judge was clearly referring to the reliance on the 'comments' posted on the website. The Secretary of State bore no burden in respect of disproving the claimant's account. However, the Secretary of State in this case is relying on comments from an unknown person; giving the Tribunal no opportunity to test the veracity of the comments made. So whilst there was no obligation on the part of the Secretary of State to undertake any research or to verify the information or identify the individual concerned, in the absence of any such evidence the judge was entitled to place little or no weight on that evidence. As set out in paragraph 32 the judge gave little or no weight without being able to verify who posted the information that the Secretary of State relied on. I note that the grounds refer to the newspaper report relied upon by the Secretary of State. In paragraphs 31 and 32 the judge is clearly referring to the 'comment' posted on the website not the newspaper report. The evidence of the newspaper report itself was not in conflict with the claimant's evidence. The claimant indicated that the death certificate records that her husband's death was by hanging by a nylon rope but that she did not believe that it was suicide. As Mr Avery submitted the information in the newspaper report accorded with what the claimant said about the death of her husband. I find that there was no material error of law and that the judge has not shifted the burden of proof to the Secretary of State.
20. For the above reasons I find that there was no material error of law in the First-tier Tribunal decision.
Notice of Decision

I find that the Secretary of State has not displaced the burden upon her of satisfying me that there was a material error of law in the First-tier Tribunal's decision without which the decision cannot be set aside. The appeal is dismissed. The decision of the First-tier Tribunal stands.

Signed P M Ramshaw Date 29 March 2016

Deputy Upper Tribunal Judge Ramshaw