Tribunal decisions

The decision

IAC-FH-LW-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: aa/04077/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7 December 2016
On 17 January 2017

Before

UPPER TRIBUNAL JUDGE ALLEN

Between

V S
(anonymity direction made)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr D O'Callaghan instructed by Birnberg Peirce & Partners
For the Respondent: Mr C Avery, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a national of Sri Lanka. He appeals against the Secretary of State's decision of 13 June 2014 to make removal directions under section 10 of the Immigration and Asylum Act 1999, his human rights and asylum-based claims having been rejected. His appeal to a First-tier Judge was dismissed, and an argument to the Upper Tribunal that the First-tier Judge's decision contained an error or errors of law was also dismissed. Subsequently the appellant appealed to the Court of Appeal, and by consent it was ordered that the appeal was allowed and the matter was remitted back to the Upper Tribunal for reconsideration.

2. Mr O'Callaghan observed at the outset that the judge had found the appellant to be credible except that the judge had doubts about the credibility of letters sent by the appellant's mother to him in the United Kingdom on the basis that they might he self-serving, but considered that in any event taken at their highest they showed that he was of some interest to the authorities and might be monitored on return and did not suggest he was on a stop list. Otherwise the judge had accepted the appellant's claim to have been detained and ill-treated and to have made a confession. In that regard Mr O'Callaghan drew attention particularly to the answer to question 154 at interview which concerned the confession signed by the appellant. From that it was said that he was a member of the LTTE and that he and Appan, who is said to have been a senior LTTE intelligence official, and who died in 2014, had joined forces to re-establish the LTTE. Mr O'Callaghan argued that in light of the country guidance in GJ [2013] UKUT 00319 (IAC) there was a clear relevance in showing that he fell within a risk factor as set out in that decision. Subsequently there were questions after the appellant had signed the confession about money from the bank and gold and jewellery and as to where these were hidden, and the appellant had denied knowing anything about these things.

3. The judge had asked himself the right question at question 29 with regard to the perception there would be of the appellant, but had not factored that into the evaluation at paragraph 30. The appellant was therefore on record as helping a very high level LTTE operative in re-establishing the LTTE and also was suspected of being aware of the whereabouts of money which would assist the LTTE.

4. As to whether this level of interest was inconsistent with the judge's comments that the authorities had no doubt satisfied themselves that the appellant was not himself a risk, reference was made to paragraph 170, 262 and 275 in GJ and also it had been accepted by the Upper Tribunal that it is possible for detainees or their families to use bribery as a method of release from detention or to leave the country and that that had no bearing on whether or not they remained of interest to the authorities. It was reasonably likely on the facts of the case that in this instance it would be recorded as an escape and with the appellant's accepted history of being in London for several years and returning with that record he would face a real risk on return in line with the guidance in GJ. It was important therefore as to what the confession had been for. The judge had not taken the perception into account as he should and this was an error and on a proper consideration of the facts the appeal should be allowed.

5. In his submissions Mr Avery argued that the judge's reasoning was sound and there had never been any significant interest in the appellant in his own right. There had been no confession about the money and jewellery and gold. The findings of the judge at paragraph 30 were sound and should be followed with regard to the lack of ongoing interest in the appellant. He would be unlikely to be seen as posing a threat. It was clear from GJ that the Sri Lankan authorities had a sophisticated intelligence system and there was no evidence of attempts to undermine the State. The authorities would be aware of the circumstances in which confessions were signed and there was no evidence that the appellant knew anything about the money.

6. By way of reply Mr O'Callaghan argued that the terms of the confession were important and that was the confession the authorities would have. It was clear from GJ at paragraph 89 that there was climate of impunity and it was the case that if a confession had been made it would have to be made again if it was wished to use it before the courts. The case fell firmly within the country guidance. The judge's failure to deal with the point of how the appellant would be perceived was significant. It was not enough to say that the appellant had not confessed to knowing the whereabouts of the money and jewellery and gold. Those were questions after the confession had been made. The authorities remained interested in that point. The interest would continue.

7. I reserved my determination.

8. This is the remaking of the decision in this appeal in light of the order of the Court of Appeal. It is proper to take the findings of the First-tier Judge as undisturbed, and as a consequence to bear in mind that he accepted that the appellant had been detained and ill-treated and signed a confession on the terms set out above. In addition he was questioned about money, gold and jewellery at the bank which the authorities suspected was being used to finance the LTTE. In the country guidance case of GJ it was noted inter alia with regard to persons at real risk of persecution or serious harm on return to Sri Lanka that this includes individuals who are, or who 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. It was noted for example at paragraph 275 when considering evidence of a Sri Lankan practitioner, whose evidence was considered to be useful and reliable, that the seriousness of any charges against an individual will not be determinative of whether a bribe could be paid and that it was possible to leave through the airport even when a person is being actively sought. There was also expert evidence from Dr Smith whose view was that a person who had previously been released from custody through bribery might be included on the stop list.

9. It was noted by the Court of Appeal in MP and NT [2014] EWCA Civ 829 at paragraph 50, commenting on the country guidance in GJ, that it was clear that the Tribunal believed that "diaspora activism", actual or perceived, was the principal basis on which the government of Sri Lanka was likely to treat returning Tamils as posing a current or future threat and that that was a conclusion to which the Tribunal was entitled to come.
10. In this regard the wording of the confession that I have set about above was clearly, as Mr O'Callaghan has argued, of significance. It is, as Mr O'Callaghan argued, a matter of perception. The terms of the signed confession are such as to indicate that there is a real risk that the appellant would be perceived as a diaspora activist bearing in mind the association he said he had in Sri Lanka with a significant LTTE activist, albeit one who had been shot. The ongoing interest in the money and the gold and jewellery were not without relevance to that also, although it is right of course to note that Mr Avery pointed out that no confession was signed in relation to that. But bearing in mind the guidance in GJ, the acceptance by the judge of the credibility of the appellant's claim to have been detained and ill-treated in the manner in which he was and the terms of the confession which he signed, and the fact that his release on payment of a bribe is not inconsistent with an ongoing interest in him, I consider that his claim for international protection is made out and accordingly his appeal under the Refugee Convention is allowed.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date

Upper Tribunal Judge Allen