Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/04742/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision Promulgated
On 15 June 2016
On 12 August 2016

Before

UPPER TRIBUNAL JUDGE CANAVAN

Between

N M
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr N. Paramjorthy, Counsel instructed by S. Satha & Co.
For the Respondent: Ms Z. Ahmad, Senior Home Office Presenting Officer

DECISION AND REASONS

Background

1. The appellant appealed against the respondent's decision to refuse a protection claim. First-tier Tribunal Judge Ferguson dismissed the appeal in a decision promulgated on 31 July 2015. In a decision dated 17 December 2015 I concluded that the First-tier Tribunal decision involved the making of an error on a point of law (annexed). The appeal was adjourned in order to allow time for the appellant's representative to adduce further evidence regarding his mental health.

2. The appeal now comes before the Upper Tribunal to remake the decision. The First-tier Tribunal judge's positive findings relating to past events are preserved. The main issue for determination is the assessment of risk on return.

3. Both parties made submissions in relation to the current risk, which I noted and is a matter of record.

Decision and reasons

4. A summary of the factual background to the case was set out in the error of law decision [1-3]. The First-tier Tribunal Judge accepted that the appellant was detained briefly and questioned about his father's activities for the LTTE in 2007. He also accepted that it was reasonably likely that the appellant was detained by the Sri Lankan authorities in August 2010 for "screening". The judge's analysis of the risk arising from this set of facts was set aside because he failed to consider some issues that were likely to be material to a full assessment of risk on return.

5. In assessing the risk on return I have taken into account the fact that a person has already been subject to persecution or serious harm is a serious indication of his well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated: see paragraph 339K of the immigration rules. I have also had regard to the most recent country guidance decision in GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 319 and the more up to date evidence produced in support of the appeal.

Past persecution

6. The appellant was detained in August 2010, over a year after the end of the war. A distinction can be made between the mass internment and screening of Tamils at the end of the war with the kind of targeted arrest and detention suffered by the appellant. On his evidence he had already been identified as a person who was required to report to the police station on a monthly basis as a result of familial connections to the LTTE. It appears that he was subject to reporting requirements for a prolonged period of time.

7. The evidence considered by the Tribunal in GJ and Others indicated that those who were screened in large scale 'rehabilitation' camps were unlikely to be subject to serious physical ill-treatment [316-319]. However, the background evidence has for a long time shown that there is a risk of serious ill-treatment sufficient to amount to a breach of Article 3 if detained in other facilities in Sri Lanka. For example, a Human Rights Watch report dated 31 January 2014, cited in the respondent's Country Information and Guidance, Sri Lanka: Tamil Separatism (28 August 2014) ("the CIG report"), stated that torture and other forms of ill-treatment of people in custody has been a widespread problem both during and since the armed conflict [2.2.5]. The tribunal in GJ and Others also recognised that detention by the Sri Lankan security services will give rise to a real risk of ill-treatment. The background evidence supports the appellant's account of serious ill-treatment in detention, which he says included beatings with sticks, pipes and batons as well as attempted sexual abuse. He was arbitrarily arrested and detained without charge for a period of three months. He was released on payment of a bribe but was required to continue reporting on a weekly basis. I am satisfied that the level of ill-treatment described by the appellant is sufficiently severe to amount to persecution for the purpose of the Refugee Convention.

8. The risk factors identified by the tribunal in GJ and Others are well known. While the focus of their assessment was on the level of post-conflict activities within the Tamil diaspora in the UK it is important to note that the underlying reason for it being identified as a risk factor was the perception that a person might pose "a threat to the integrity of Sri Lanka as a single state": see also MP and NT (Sri Lanka) v SSHD [2014] EWCA Civ 829 [50]. The Tribunal concluded that the authorities had an intelligence led approach to identifying those it perceives to pose a threat to the unitary Sri Lankan state. An individual's past history was only relevant to the extent that it might present a current risk to the Sri Lankan state.

9. The tribunal in GJ and Others conducted a comprehensive assessment of the evidence as it stood at the date of the hearing in mid-2013. While country guidance should be followed unless there are good reasons not to do so, it is of course incumbent on a judge to consider the evidence as it stands at the date of the hearing if a protection claim is to be given the anxious scrutiny required. The decision in GJ and Others is now three years old.

Background evidence

10. The respondent's CIG report outlines a number of pieces of evidence from different sources. I note that, at the date of drafting, there is a new Country Information and Guidance report dated August 2016, but that evidence was not before the Upper Tribunal when this case was decided so I have not taken it into account.

11. The CIG report outlines evidence that postdates the decision in GJ and Others. A report of the Bar Human Rights Committee of England and Wales (BHRC) dated March 2014 stated that the government of Sri Lanka has an extensive intelligence system, which is shared by the security forces and immigration officials. Intelligence is gathered from the Karuna faction and the EPDP as well as from former members of the LTTE recruited as informers through torture, or threats of torture or rape of their loved ones. The focus of intelligence gathering is on the hierarchy of the LTTE as well as their family connections. The report states that the BHRC interviewed witnesses who confirmed that they were forced to name and identify other LTTE members under torture. Since 2009 Sri Lankan security policy has become increasingly sophisticated. It is based on intelligence and the comprehensive surveillance of Tamil citizens as well as monitoring of the Tamil diaspora [2.2.2]. The BHRC report is broadly consistent with information considered by the tribunal in GJ and others.

12. A Swiss Refugee Council report dated 15 November 2012 stated [2.2.3]:

"Although the LTTE may have been defeated and there is not the slightest sign that this organisation has survived, the state machine of Sri Lanka is extremely paranoid and is trying to contain any resurgence of this group, or the germination of tendencies of independence alongside the Tamils. This concern has direct repercussions on all of the Tamils in the North and East because their ethnicity could indicate possible proximity to the LTTE. There are even suspicions directed at Tamils with a low profile, who do not escape surveillance. The authorities check whether these people may be in contact with the diaspora. This is especially the case of those who were recruited, whether or not by force, by the LTTE. The authorities also extend their suspicions to acquaintances and relatives of former members of the LTTE. According to several reports, people who return from abroad are often suspected of maintaining links with the LTTE and are particularly threatened."

13. A security update by the British High Commission (BHC) in Colombo dated 16 April 2014 stated [2.2.8]:

"The increased military presence, arrests and killings have been widely reported in local press, with some coverage also in the international media."

"There have been reports that some of those arrested have been subjected to ill-treatment in detention..."

"In addition to the arrests and claims of ill-treatment, there are reports of widespread cordon and search operations, restrictions on movement in some areas and increased surveillance and harassment of rehabilitated ex-combatants. Two staff members of the British High Commission (BHC) visited Jaffna on 9 April 2014 and saw that little visible sign of an increased military presence in the town itself"

14. The US State Department Report on Human Rights Practices for 2013 (published 27 February 2014 stated:

"In the east and north, military intelligence and other security personnel, sometimes allegedly working with paramilitaries, were responsible for the documented and undocumented detention of civilians suspected of LTTE connections. Detention reportedly was followed by interrogation that sometimes included mistreatment or torture. There were reports that authorities released detainees with a warning not to reveal information about their arrest or detention, under the threat of re-arrest or death...

NGOs and individuals complained that the Armed Forces and their paramilitary allies detain suspected LTTE sympathisers and did not surrender them to police, blurring the line between arrests and abductions." [2.2.16]

"Tamils throughout the country, but especially in the north and east, reported that security forces and paramilitary groups frequently harassed young and middle-aged Tamil men." [2.2.17]

15. The CIG report goes on to state that, in early April 2014, 60 people accused of trying to revive the LTTE were arrested. The BBC reported that the army also shot dead three men it claimed were trying to revive the LTTE and that "there has been a notable increase in arrests and security searches in northern Sri Lanka and some detentions in Colombo" [2.2.28].

TGTE activities

16. In April 2014 it was reported that the Sri Lankan government proscribed at least 15 Tamil diaspora organisations across the world. The list included the Trans-national Government of Tamil Eelam (TGTE) [2.2.32]. Human Rights Watch reported that the decision to label Tamil organisations as financers of terrorism is so broad that it appears to be aimed at restricting peaceful activism by the Tamil minority. Chief military spokesman Brig. Ruwan Wanigasuriya was reported to have said that legal action would be taken against anyone who has links with the listed groups. This would place local activists and alleged group members visiting the country at risk of being detained and held without charge under the Prevention of Terrorism Act [2.2.33].

17. The same quote was repeated in the BHC letter dated 16 April 2014. The letter went on to say that the statement that individuals belonging to proscribed organisations would face arrest under anti-terrorism laws on return to Sri Lanka "has not yet been tested in practice; to date, there have been no known arrests based on membership of one of the newly proscribed groups" [2.3.6]

18. A letter from the BHC dated 25 July 2014 noted that officials from the Ministry of External Affairs, the Department of Immigration and Emigration, the State Intelligence Service, several foreign embassies and an unnamed international NGO stated that they had not received any reports of returnees who are members of proscribed Tamil groups being arrested. While it is perhaps unsurprising that Sri Lankan state agencies would deny knowledge of arrests and ill-treatment it is notable that the letter states that the embassies consulted had "no awareness of any members of the groups being returned however." [2.2.12]

19. Annex B of the CIG report provides background details about some of the proscribed organisations. At the hearing it was noted that some organisations were subsequently de-proscribed by the Sri Lankan government but it was not disputed that the TGTE is still a proscribed organisation. The first part of the TGTE mission statement is cited as follows [3.2.5]:

"The Transnational Government of Tamil Eelam (TGTE) is a political formation to win the freedom of the Tamil people on the basis of their fundamental political principles of Nationhood, Homeland and Right of self-determination. At present the Tamil people have absolutely no prospect of articulating their political aspirations or of exercising their fundamental rights in their homeland itself. The Sri Lankan government, through legal impediments, military occupation and murder is strangling the Tamil people's aspirations and their political rights."

20. On the face of the mission statement the guiding purpose of the organisation is to work towards the self-determination of the Tamil people through "democratic means". The name of the organisation even goes so far as to purport to be a form of exiled government in waiting. It is difficult to see how these statements could be seen as anything other than a threat to the unitary state of Sri Lanka. Although the organisation has been proscribed under terrorist legislation by the Sri Lankan government there is no evidence to indicate that any other country has proscribed the organisation. There is nothing before me to suggest that the TGTE supports or carries out terrorist activities.

21. The First-tier Tribunal judge considered the evidence put forward by the appellant regarding his activities for the TGTE in the UK [46]. It appears that he accepted the appellant's claim that he attended meetings and carried out other activities, such as leafleting, on the basis of a letter from the TGTE (UK) dated 10 June 2015. It was open to the judge to be sceptical about the motive behind such activities, which only began after he was arrested and claimed asylum. However, he was correct to find that the motivation is irrelevant if the activities nevertheless create a real risk on return: see Danian v SSHD [2000] Imm AR 96. He concluded that the appellant's activities were not of a sufficiently high profile to place him at risk but failed to consider the fact that the TGTE is a proscribed organisation.

Monitoring through family members

22. The appellant told the First-tier Tribunal judge that he contacted his uncle, who sent documents to support his appeal. The judge rejected his claim that he had no contact with his family since early 2011 on the ground that it was not plausible that his uncle would not have made more effort to try to find out where his mother and siblings were [47]. The appellant claimed that he was told that the authorities had been to his family home to search for him on several occasions. His uncle informed him that they had been to his shop asking about him. The last occasion was 25 May 2015.

23. I am conscious of the fact that I have not heard evidence from the appellant in relation to this issue. At the date of the First-tier Tribunal hearing it seems that he was well enough to give evidence. The evidence in his statement is as set out above. All that is recorded of his evidence at the hearing is that he told the judge that he spoke to his uncle often, but his uncle was concerned that the calls were being monitored, so he used new SIM cards each time. The appellant was unable to explain why his uncle thought the calls were being monitored.

24. While the evidence on this issue is fairly limited I find that, in the context of the background evidence, there is nothing inherently implausible about the appellant's account. Given that it is accepted that he was detained on two occasions in 2007 and in 2010 and was required to report on a regular basis it is perhaps unsurprising that the authorities might make periodic enquiries. The Swiss Refugee Council report cited above suggests that Tamils are under surveillance and that the authorities check whether people in Sri Lanka are in contact with the diaspora. The US State Department report cited in the CIG also mentioned that security forces conduct searches of property and engage in wiretapping and surveillance with little judicial oversight. The letter from the BHC also quoted the intelligence service (SIS), which stated that "family members of wanted individuals are never arrested, but they may be monitored and questioned about the individual" [2.2.14]. In light of the accepted facts, and the background evidence relating to surveillance, I find that there is in fact no good reason to doubt the appellant's claim that the authorities have made some enquiries as to his whereabouts since he has been in the UK.

Medical evidence

25. At the date of the first hearing before the Upper Tribunal I was told that the appellant was sectioned under the Mental Health Act 1985. At the date of the second hearing, which was adjourned, he attended with a carer from the hospital. He attended the resumed hearing with a friend but I was told that he continues to require high levels of care.

26. The most recent evidence is from Dr David Oyewole of the relevant NHS mental health team. His letter is dated 12 May 2016. Dr Oyewole confirmed that the appellant has been diagnosed with schizophrenia. He had recently been discharged from an inpatient mental health unit, having spent several months there. He was transferred to a mental health rehabilitation ward because he was homeless and had "reduced ability to organise his own affairs due to the apathetic and negative features of his mental illness". The appellant continued to be treated on the ward with antipsychotic medication. The doctor was asked to comment on the likely impact on the appellant's mental health if returned to Sri Lanka. He did not seek to overstate his knowledge of the circumstances. He said that he was unclear about what the impact would be. However, if suitable inpatient treatment was available then "clearly there would be a more favourable outcome." Dr Oyewole said that he was aware that the appellant was unwilling to return and "reports terrible memories during his time in Sri Lanka".

27. Finally, he was asked to comment on the risk of suicide if returned to Sri Lanka. In response he stated: "I think it is likely if he were to be compelled to return to Sri Lanka, without him wanting to return there, there would be a much higher risk of deliberate self-harm and possible suicide attempts." It is fair to say that his comment regarding suicide risk is fairly limited and does not explain fully his reasons for coming to that conclusion. However, I take into account the fact that Dr Oyewole was the appellant's treating physician and would have access to his notes and other information about his medical history.

28. Other more recent evidence includes a report by Dr Raj Persaud, a consultant psychiatrist. Dr Persaud is not his treating physician but assessed the appellant on a private basis. He records that he had access to various documents including asylum interview records, the asylum decision, various NHS medical records, a medical report from Dr Oyewole and a psychiatric report from Dr Saleh Dhumad.

29. Dr Persaud did not purport to make any findings about the truthfulness of the appellant's account but assessed his mental health in light of what he said happened in Sri Lanka. Dr Persaud stated that extreme traumatic events such as detention and torture can produce psychiatric disorder. He noted that the appellant was sectioned at the time. He considered this was particularly significant because it indicated that the NHS regarded him to be an acute risk to himself and that he required urgent medical treatment. The fact that he had been an inpatient for some months was a measure of the severity of his illness. He noted that the medical records showed that the appellant was admitted to hospital following a serious suicide attempt, which involved him attempting to cut himself and also taking an overdose. He noted that the appellant had made other suicide attempts in the past involving knives.

30. Dr Persaud diagnosed the appellant as suffering from PTSD and depressive illness. On the day of his assessment he concluded that the dominant symptomatology was one of psychosis. The appellant was hearing voices among other psychotic symptoms. He said that this was confirmed in the extensive medical notes that the appellant brought with him to the appointment and observed that this "also means that he would be regarded as extremely unpredictable." He observed that, on the appellant's account, it seemed that he may have been suffering from psychosis for some years. Dr Persaud commented that his mental illness may not have been diagnosed for many years, worsening his prognosis.

31. Dr Persaud's conclusions were as follows:

"The client is currently detained under section 3 of the mental health act on an inpatient psychiatric unit, and is being diagnosed and treated for psychosis - this renders him unpredictable and clearly a danger to himself. He would be placed in the category of the most severely unwell [psychiatric] patients as a result. He is still clearly actively psychotic and suffering from auditory hallucinations which render him distracted and confused.

My conclusions are that this client continues to suffer from serious psychiatric disorder, including Psychosis, Major Depression and PTSD most probably secondary to the past traumas the client claims. I don't think that they would survive in Sri Lanka because of the mental health problems and their health would deteriorate dramatically. I don't think that the client is liable to receive the correct medical treatment that the client is likely to require in Sri Lanka and this includes proper PTSD counselling and therapy and antidepressant medication prescription and monitoring.

All these factors (and more) would lead most independent experts to evaluate that in this case the risk of suicide is already elevated and would be more elevated should the client find themselves being deported.

I have based my opinion on what the client has told me, without access to any corroborating information from key informants, and my report has to be interpreted in that light. Having said that I was impressed with the vividness of descriptions of past traumas and the intensity of emotional reactions rendering me to believe it is highly unlikely the core parts of these accounts are fabricated or exaggerated, despite the fact that it had taken a considerable amount of time and specific techniques used, in order to extract information from [him] sensitively.

The impact on the client's mental health would be severe and adverse if the client was moved back to [his] country of origin because the client would be returned to the location of trauma which is well known to cause a lot of stress to people suffering from PTSD and depression. Much of the symptomatology of PTSD is around avoiding the trauma, it's memory or location, or even thinking about it."

32. Dr Persaud concluded by responding to a number of questions posed by the appellant's solicitor. He confirmed that the appellant was diagnosed with schizophrenia, but in his opinion, this was secondary to events in Sri Lanka. When asked to comment on the likely impact on the appellant's mental state if he was forcibly removed to Sri Lanka Dr Persaud found that he was likely to be "very adversely affected" particularly if this was in the middle of an inpatient stay or before he has been properly rehabilitated in the community. He considered that removal could precipitate a suicide attempt given how unwell the appellant is. Dr Persaud considered that the appellant was likely to require inpatient treatment for the foreseeable future. He made clear that he has some knowledge of the situation on return because he made a documentary for the BBC about psychiatry in Sri Lanka. While there are psychiatric hospitals they are very difficult to access and are often expensive.

33. I recognise that Dr Persaud only saw the appellant on one occasion on 21 April 2016 but it appears that he was relatively well informed as to the appellant's history in Sri Lanka and his medical history in the UK. I find that I can give weight to his opinion even if his assessment was limited to one consultation.

Conclusions

34. It is accepted that the appellant has been detained on two occasions in the past. For the reasons given above I find that it is at least reasonably likely that he was ill-treated in the way he described. The psychiatric evidence appears to draw a link between the ill-treatment and his current psychiatric illness. I am satisfied that the treatment the appellant suffered was sufficient to amount to past persecution. I turn to consider whether there are good reasons to consider that such persecution or serious harm will not be repeated.

35. Having considered all the evidence in the round I am satisfied that there are a number of factors, which cumulatively give rise to a real risk on return.

(i) Past persecution
The appellant was detained on two occasions in 2007 and 2010. It is at least reasonably likely that the authorities will continue to have a record of those detentions. The second detention took place a year after the end of the war. The circumstances of that detention were different to the wider internment of LTTE suspects in 'rehabilitation' camps. The appellant was already subject to reporting conditions and was questioned about the links that he and his father had to the LTTE. The appellant's past history is relevant to the assessment of whether the Sri Lankan authorities are likely to perceive him as a threat to the unitary state.

(ii) Breach of reporting conditions
The appellant was released on payment of a bribe. Nevertheless, he was required to report on a weekly basis. Having left Sri Lanka he is in breach of those conditions. This factor may heighten the interest that the authorities are likely to have in the appellant on return.

(iii) Diaspora activities in the UK
The fact that the appellant has carried out some diaspora activities in the UK, however cynically, is also a matter that is relevant to risk on return. While the tribunal in GJ and Others made clear that such activity needed to be at a relatively high level to attract the adverse attention of the Sri Lankan authorities those findings were made before the Sri Lankan government decided to proscribe a number of organisations. It is clear that the stated nationalist aims of the TGTE would pose a threat to the unitary state of Sri Lanka. The organisation continues to be on the proscribed list despite the fact that other organisations have been removed.

While there is some evidence from the BHC to suggest that there are no reported arrests of members of proscribed organisations (as of July 2014) I find that little weight can be placed on denials provided by the very state organisations that might carry out such arrests. Although it is possible that international embassies might have heard of any notable arrests, it seems clear that those who reported to the BHC had "no awareness" of any members of proscribed groups being returned.

In contrast, there is evidence of a clear statement made by a senior military official to say that individuals belonging to those organisations would face arrest under anti-terrorism laws on return to Sri Lanka. Indeed the whole purpose of proscribing such organisations would be to criminalise membership. The tribunal in GJ & Others found that the Sri Lankan authorities had an extensive intelligence network, which was likely to identify people of interest in the diaspora. I find that this is likely to include those who are members of, and have been active in, proscribed groups such as the TGTE. In contrast to other Tamil organisations active in the diaspora, the fact that the appellant's activities were at a low level would not preclude adverse interest if the organisation is on a proscribed list.

Comments from Human Rights Watch indicate that the Sri Lankan government may be using the proscription of diaspora organisations as a means of attempting to tie them to the LTTE [2.2.23]. There is no evidence before me to show that the TGTE supports or carries out activities that would amount to terrorism. Nor is there any suggestion that the appellant's activities are such that he might be excluded as a result of his low level activities for the TGTE.

(iv) Mental health
Finally, the evidence shows that the appellant is likely to be suffering from severe mental illness, which requires a high level of supervised treatment. Currently he is not well enough to look after himself and continues to be treated in a specialist mental health unit. The nature of his condition means that he is likely to present to the authorities on return as someone who is distracted, confused and unpredictable. His psychotic symptoms may, in themselves, attract initial attention from the authorities.

The fact that the appellant is suffering from such serious psychiatric illness as a result of his past traumatic experiences in detention is also likely to cause him acute distress and give rise to a risk of self-harm or suicide if he is questioned at the airport, whether or not he is also subject to physical ill-treatment. In Ireland v UK (1978) 2 EHRR 25 the European Court made clear that the minimum level of severity of ill-treatment required to breach Article 3 must be assessed in the light of all the circumstances of the individual including the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim. The particular vulnerability of this appellant is likely to mean that the threshold for Article 3 and persecutory ill-treatment will be reached more readily.

36. While none of these factors, taken alone, might be sufficient to conclude that the appellant would be at real risk on return I am satisfied that the cumulative effect is that the appellant is likely to be viewed as a person who poses a threat to the unitary state of Sri Lanka. As such he would be at real risk of persecution for reasons of his actual or attributed political opinion if returned to Sri Lanka at the present time.

37. Because I have made detailed findings in relation to the protection claim I find that it is not necessary to go into detail in relation to the human rights medical claim save to note that the tribunal in GJ and Others accepted, in the case of MP, that his serious mental health problems, similar to those suffered by this appellant, would give rise to a breach of Article 3. The tribunal noted, consistent with Dr Persaud's evidence, that there were limited psychiatric facilities available. The mere fact of return would have such an adverse effect on the appellant's health that it would amount to a breach of his human rights. I see no marked difference with the facts in this case and would, in any event, allow the appeal on human rights grounds for similar reasons.

38. I conclude that removal in consequence of the decision would amount to a breach of the United Kingdom's obligations under the Refugee Convention and would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant's human rights.

DECISION

I re-make the decision and ALLOW the appeal

Signed Date 11 August 2016

Upper Tribunal Judge Canavan

ANNEX

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/04742/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision Promulgated
On 16 December 2015

?????????????

Before

UPPER TRIBUNAL JUDGE CANAVAN

Between

N M
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr N. Paramjorthy, Counsel instructed by Vasuki Solicitors
For the Respondent: Mr N. Bramble, Home Office Presenting Officer

DECISION AND REASONS

Background

1. The appellant says that he entered the UK on 20 January 2011 in the false identity of N M. The passport he entered on was endorsed with entry clearance as a Tier 4 (General) Student Migrant that purported to be valid until 27 August 2012. He applied for further leave to remain in the same false identity, which was granted until 31 December 2014. His leave to remain as a student was curtailed on 09 May 2013. The appellant remained in the UK without leave until he was encountered working illegally. He claimed asylum on 07 November 2013.

2. The appellant claims that his father assisted the LTTE but was arrested in 2002 and then disappeared. The appellant claims that he was questioned and released at around the same time. In 2004 he began to help the LTTE as a driver. He also helped to arrange accommodation and supplies for LTTE members. In 2007 he was arrested by the police in Colombo. He was accompanied to his home where the police found photographs of him and his father. He says that he was detained at the police station for 14 days and questioned about his father's activities for the LTTE as well as his own activities. He was held in poor conditions. Eventually he was released on payment of a bribe and was required to report to the police station on a monthly basis.

3. The appellant says that he continued to report until August 2010. He was arrested and detained when he went to report at the police station. On this occasion he says that he was detained for a period of three months during which time he was beaten with sticks, pipes and batons. He says that they tried to sexually abuse him. He was fingerprinted. He told the authorities that he provided SIM cards and found lodgings for LTTE members. He also told them the names of some LTTE members. He says that he was released through irregular means on payment of a bribe. The reporting requirements were increased to once a week. Thereafter he paid an agent to assist him to leave the country and travel to the UK. The appellant says that since early 2014 he has supported the Transnational Government of Tamil Eelam (TGTE) and carried out voluntary work for the group.

4. The respondent refused the asylum claim in a decision dated 03 March 2015. First-tier Tribunal Judge Ferguson ("the judge") dismissed the appeal in a decision promulgated on 31 July 2015. He made various findings of fact in a detailed and carefully written decision. Although he had some concerns about the appellant's overall credibility he gave him the benefit of the doubt with regard to his account of past events. He appeared to accept that it was reasonably likely that the appellant was detained and questioned about his father's activities in 2007 [32]. He also accepted that the appellant was detained and questioned again in August 2010 [44]. In doing so he took into account the appellant's own evidence that "after the war they started arresting people, supporters and members who had contacts with LTTE". He found that this was consistent with the background evidence considered by the tribunal in GJ & Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 319 that "tens of thousands of Tamils were detained by the Sri Lankan authorities to identify which of the 300,000 Tamils had sufficient involvement with the LTTE to require what was termed by the government to be 'rehabilitation'". The judge concluded: "In common with many other people, the appellant was detained by the authorities in 2010 and then released" [33].

5. The judge found that the appellant was detained for "screening" in 2010 and then released. He concluded that the appellant did not come within any of the risk categories identified in GJ & Others. He would not be perceived as a threat to the integrity of a unitary Sri Lankan state, he did not have a significant role in relation to post-conflict separatism and was not on a "stop list" [44]. He found that the appellant might be asked questions about his involvement in the LTTE. The Sri Lankan authorities' had "sophisticated intelligence" that would identify that he had some involvement with the LTTE many years ago and that he would be seen as someone who was in the UK as an economic migrant [45].

6. It is only after making that finding that the judge went on to consider the activities that the appellant said he has undertaken in support of the TGTE in the UK. He appeared to accept the fact that the appellant had carried out such activities. The appellant supported his claim with a letter from the organisation. The judge concluded that is was likely that the appellant undertook these activities in a cynical way in order to bolster his claim for asylum but correctly stated that this would be irrelevant if the sur place activities nevertheless created a real risk on return: see Danian v SSHD [2000] Imm AR 96. He went on to find that the activities the appellant carried out in the UK for the TGTE did not elevate his risk profile [46]. For similar reasons, the judge went on to reject the appellant's claim that he had lost contact with his family, and that the authorities were still looking for him, because his evidence was likely to have been fabricated in order to bolster the claim [47]. He concluded that the appellant's level of activism in the diaspora was "nowhere near" a level where he would be of interest to the Sri Lankan authorities [50].

7. The appellant seeks to appeal the decision on the following grounds:

(i) The First-tier Tribunal mischaracterised the nature of the appellant's arrest in 2010 as one of "screening" when the circumstances of his arrest were quite different to the large numbers that were screened in the north at the end of the war. The appellant was arrested and detained in Colombo while reporting to the police station and was released with an increased level of reporting, which he subsequently breached. This was material to a proper assessment of risk on return.

(ii) In assessing the appellant's profile the First-tier Tribunal failed to give any consideration to the fact that the TGTE is a proscribed organisation, which was material to a proper assessment of risk on return.

(iii) The First-tier Tribunal only partially quoted the guidance given by the Court of Appeal in MP & NT v SSHD [2014] EWCA Civ 829 [49] and in doing so failed to take into account the suggestion that in some cases a real risk might arise in the absence of diaspora activity:

"But I do not read para.356(7)(a) [of GJ & Others]? as prescribing that diaspora activism is the only basis on which a returning Tamil might be regarded as posing such a threat and thus of being at risk on return. Even apart from cases falling under heads (b)-(d) in para.356(7), there may, though untypically, be other cases (of which NT may be an example) where the evidence shows particular grounds for concluding that the government might regard the applicant as posing a current threat to the integrity of Sri Lanka as a single state even in the absence of evidence that he or she has been involved in diaspora activism."

Decision and reasons

8. After having considered the grounds of appeal and oral arguments I am satisfied that the First-tier Tribunal decision involved the making of an error on a point of law.

9. It is trite law that, given potentially serious nature of the consequences of return, an asylum application requires most anxious scrutiny. While the experienced judge wrote a careful, clear and detailed decision I conclude that there were several issues that he failed to address that were material to a proper assessment of risk on return.

10. Firstly, the circumstances surrounding the appellant's arrest in 2010 were somewhat different to the mass internment of Tamils in Vavuniya district at the end of the war albeit that the purpose of the questioning was similar in terms of ascertaining the level of his family's involvement with the LTTE. Although the Tribunal in GJ & Others found that there was little evidence of ill-treatment in the IDP camps in the north, in contrast, the appellant gave an account of ill-treatment in detention, which was accepted by the First-tier Tribunal [41]. The judge made no finding as to whether the ill-treatment amounted to persecution and did not make any assessment of how past persecution that took place post-conflict might impact on the current risk on return: see paragraph 339K of the immigration rules.

11. Secondly, the Tribunal in GJ & Others noted that there was evidence to show that some of the Tamils released from rehabilitation were subject to reporting restrictions [300], but the fact that the appellant breached those conditions was a material fact that should have been considered in assessing the appellant's profile on return.

12. Thirdly, the judge accepted that the appellant carried out activities for the TGTE in the UK. While it was plainly open to him to find that the late application for asylum and the timing of those activities raised questions about the appellant's motives, the judge failed to consider the particular nature of the organisation in assessing whether those activities were likely to place the appellant at real risk on return. GJ & Others was decided in 2013 but by the date of the hearing in this case there was evidence before the Tribunal to show that the Sri Lankan government proscribed a number of Tamil organisations in April 2014. Even on the face of the name, the Transnational Government of Tamil Eelam, the group puts itself forward as a Tamil government in exile that quite clearly rejects the legitimacy of the unitary state of Sri Lanka. The fact that it is now proscribed by the Sri Lankan government as a terrorist group is a matter that is likely to be relevant to the appellant's profile. These developments post-dated the decision in GJ & Others but were material to the proper assessment of risk on return. The First-tier Tribunal's failure to make findings regarding the import of these developments is capable of amounting to an error of law.

13. For the reasons given above I conclude that the First-tier Tribunal decision involved the making of an error on a point of law and the decision is set aside. The appellant's representative informed the Tribunal that he had recently been sectioned under the Mental Health Act 1983 and that it would be necessary to adduce further evidence of the current situation before the decision could be remade. As such the matter will be relisted for a resumed hearing with directions.

DIRECTIONS

14. The appellant's representatives are to notify the Tribunal at least 14 days before the resumed hearing whether there is any application for the appellant or any other witness to give evidence and whether an interpreter is required.

15. Subject to any written representations to be made at least 14 days before the resumed hearing the Tribunal considers that the First-tier Tribunal's findings of fact relating to past events can be preserved but those relating to risk on return are set aside for the reasons given above.

16. Any up to date evidence relied on by both parties should be served at least 14 days before the resumed hearing.

DECISION

The First-tier Tribunal decision involved the making of an error on a point of law

I set aside the decision, which will be relisted for a resumed hearing

Signed Date 17 December 2015

Upper Tribunal Judge Canavan