Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA049092015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 20 April 2016
On 10 June 2016

Before

UPPER TRIBUNAL JUDGE ALLEN

Between

[S A]
(anonymity direction NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr C Mannan, instructed by March & Partners
For the Respondent: Mr S Walker, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a national of Sri Lanka. She appealed to a Judge of the First-tier Tribunal against the respondent's decision of 13 March 2015 refusing to grant asylum and giving directions for her removal from the United Kingdom.

2. The appellant arrived in the United Kingdom in June 2009 with entry clearance as a Tier 4 (General) Student Migrant. She was granted further leave to remain in the same category on 23 February 2011, valid until 30 April 2014. She returned to Sri Lanka three times, between March and April 2011, between June and August 2011 and between 6 September and 6 October 2013. On 26 October 2013 she contacted the respondent in order to request an appointment with the Asylum Screening Unit and attended an appointment on 26 November 2013 at which she claimed asylum.

3. The claim for asylum arose from the fact that the appellant and her cousin were both arrested and detained separately in Colombo in September 2013. She claimed to have been interrogated on suspicion of funding the resurgence of the LTTE and was ill-treated. Her cousin was previously a member of the LTTE and had been arrested and subjected to retraining before being rehabilitated within the community. She had been arrested when she had left her family home to visit him and assist in his charitable work. While in the United Kingdom she had been remitting funds to Sri Lanka to assist displaced and needy people in Sri Lanka and her cousin had been the person who dealt with the funds for that purpose. In the past she had been arrested in 2009 and questioned in connection with air tickets issued to members of the LTTE who had been intercepted in possession of those tickets and seeking to leave Sri Lanka. When detained in 2013, she had been held for a day and then released and thereafter obtained the student visa and came to the United Kingdom.

4. Her two earlier visits to Sri Lanka were uneventful. In February 2011 the college at which she was studying was suspended and she had not studied since that date. At the first interview she said she attended a second college but it was closed in 2012 and she had been working in the United Kingdom subsequently.

5. The appellant was released after the intervention of a solicitor and with her uncle's help. The release was on conditions of reporting and her Sri Lankan national ID was retained by the police who demanded the surrender of her passport in order to prevent her leaving the country as a condition of the return of the ID. In fact she did not surrender her passport and made no attempt to recover her ID. She did not report as required but left Sri Lanka two days later and returned to the United Kingdom with the assistance through departure formalities of an agent who made the necessary arrangements.

6. She claimed that on return to the United Kingdom she said she wished to claim asylum but was told that since she had valid leave to enter she could enter and claim asylum in due course and no claim was recorded at the airport and she was allowed to proceed. She subsequently made the appointment to claim asylum at the Asylum Screening Unit to which I have referred above. Through her solicitor her uncle had obtained copies of summonses and an arrest warrant which were provided to the Tribunal.

7. The judge did not accept that she had made an asylum claim on return as, had she disclosed that she wished to claim asylum it was not probable, as he put it, that she would have been permitted entry on a student visa without at least an investigation as to whether she was engaged in studies. He thought it was likely that curtailment action would have been taken in respect of the visa and she would perhaps have been admitted with temporary admission for the purposes of making her claim or even that the claim might have been recorded and initiated at the port. He considered that this adverse finding gave rise to considerable cause for caution. He noted documentation, and the absence of any challenge to the documentation on the part of the respondent, relating to the appellant's former employment in Sri Lanka and that she had worked for the NGO World Vision and then for a travel organisation, and also accepted what she said about her cousin's history with the LTTE and his retraining and rehabilitation. He also accepted that she had been interrogated in 2009.

8. As regards the summonses and the arrest warrant the judge did not find these credible on the basis that there was no reason for summonses to be issued for her to attend court as the authorities would have been aware by that time that she had left Sri Lanka and it was not credible that there could have been attempts by court process to secure her attendance at court. She must have been known to be a fugitive outside Sri Lanka. As regards the alleged arrest warrant it was a document addressed to a police officer requiring him to arrest a person and there was no possibility of such a document being served on any person other than the arrested person on the occasion of the arrest. He considered that a good explanation was required to show how such documents could have come into the possession of the appellant or her representatives in Sri Lanka and he found that explanation lacking in credibility, largely because the solicitor said in his letter that he was told in December 2013 by the appellant's uncle of the issue of a warrant of arrest but on the face of it the warrant was allegedly issued only in November 2014. The other documents including a letter from a second attorney and an alleged Justice of the Peace were not regarded as adding anything of assistance.

9. The judge also did not accept that the authorities would have released the appellant without the surrender of her passport if it had indeed been required. A newspaper clipping purporting to report on her arrest, release and flight dated 24 June 2015 was thought to lack credibility since there was no good reason why it should be published nearly two years after the event and it was a relatively insignificant story. The judge also found lacking in credibility the claim to be involved in sur place activities since the document from the British Tamils Forum welcoming her as a member from 4 August 2015 was clearly the welcome of a new member with information as to the activities of the organisation in contrast to her claim to have been a supporter for years and to have been active. Accordingly the central core of the claim was rejected and the appellant was found to lack credibility and her appeal was as a consequence dismissed.

10. The appellant sought permission to appeal to the Upper Tribunal which was initially refused by a First-tier Judge but subsequently permission was granted by an Upper Tribunal Judge.

11. In his submissions Mr Mannan made the point at the outset that the appellant was not present today as she was experiencing problems with her pregnancy and was unable therefore to attend and there were therefore no clear instructions as to the directions made by the Upper Tribunal Judge that she should be prepared for the decision being remade if an error of law was found. He argued that in any event it was an appropriate case for remittal if the Tribunal were in agreement with his submissions.

12. Otherwise Mr Mannan relied on and developed points made in the grounds. He argued with regard to the supposedly fatal error of the date in the solicitor's letter that it was clearly a typographical error since there were references thereafter to the summons being issued in July and August 2014. A further problem with the determination was that with regard to paragraph 16 of the documentation there was no Home Office challenge to the documents and they were accepted as reliable. The judge had then failed to take those documents into account and they were part of the central core of the appellant's claim. With regard to the summonses and arrest warrant referred to at paragraph 18, these had never been challenged by the Home Office and if they had been, the burden would have been on the Home Office. The judge said it was not possible that the summons would have been issued but it had been and it was followed by an arrest warrant and this was perfectly plausible. Also with regard to the newspaper clipping there was no Home Office challenge to that either. The judge had not accepted the document from the British Tamils Forum. This was problematic as the judge had failed to take into account the appellant's active involvement since entry into the United Kingdom and that was her evidence which had not been factored in. It was unfair not to accept that she had made a claim for asylum on her return. She had sought to book an appointment and that was the system and that had not been factored in at all and it was wrong also to say that it was connected with the expiry of her visa as in fact that was not due to take place for another six or seven months. It was incorrect that the visa would not be renewed as the Home Office had suspended the college and knew she was seeking another place and her leave had never been curtailed. The determination was therefore unsafe.

13. In his submissions Mr Walker argued that the judge came to clear conclusions which were open to him about the documents. The newspaper article had only been submitted before the hearing date and the Secretary of State could not have considered it. The main point was that the judge had made clear findings which were open to him on the documents and the challenge was a matter of disagreement only.

14. By way of reply Mr Mannan argued that it was more than disagreement. Paragraph 20 of the refusal letter set out the evidence before the Secretary of State and this was not referred to by the judge or given any weight. If the Home Office had doubts about the newspaper at the hearing then they could have sought an adjournment. The main point was that after her return to the United Kingdom the respondent was told of the summons and the arrest warrant and they were produced to her and they were not challenged as being dishonestly obtained. The judge had taken it onto himself to come to a decision about them. There was an error in the date by the judge and by the solicitor at paragraph 20 and therefore the basis for the conclusions at paragraph 25 was wrong. The core of the claim remained sustainable and there was required to be a proper consideration and clear findings with regard to the documents including the newspapers. The assertions by the judge for example about remittances were clearly wrong and there was a need for clear findings on both core and peripheral matters.

15. I reserved my determination.

16. I will deal with the points that Mr Mannan raised in the order in which he raised them. I address first the point about the solicitor's letter and the alleged discrepancy about dates. In his letter the attorney Mr Selvarasa refers to having been instructed by the appellant's uncle to represent and secure her release after she was detained by the authorities on 14 September 2013. He goes on to say that in the month of December 2013 her uncle had contacted him and said that police officers had visited her home and informed that they wanted to arrest her and the court had issued an arrest warrant against her. The arrest warrant is however dated 11 November 2014. I have found no reference in that letter to the summons being issued in July and August 2014. In any event a summons is different from an arrest warrant. I consider the judge was perfectly entitled to attach significance to the discrepancy in that letter, in that it is clear that the attorney was saying that the arrest warrant had been issued at a time some eleven months prior to the issue of the warrant. The reference to December 2013 in the letter cannot be regarded as simply a mistake, and the judge was entitled to treat it as he did.

17. The matters in respect of which the judge found the appellant to be credible at paragraph 16 relate to her former employment in Sri Lanka and her claim that she had a cousin who was in the LTTE and had undergone retraining and rehabilitation and that she was interrogated by the Sri Lankan authorities in 2009. I consider it was open to the judge to find that these matters, although they were in the appellant's favour, did not add weight to the central core of her account. The summonses and the warrant are not referred to in the decision letter and I can only assume that they were not before the decision-maker since they seem to have appeared first under cover of a letter of 13 August 2015, a week before the hearing before the judge. There cannot therefore be said to have been a failure by the respondent not to address these points in the decision letter. The judge does not note in his decision the points made by the Presenting Officer at the hearing, but I consider that it was properly open to him to consider the credibility of the summonses and the arrest warrant and to express the doubts that he did at paragraph 18 of the determination in particular. It was open to him to consider that bearing in mind that the Sri Lankan intelligence sources are said to be sophisticated, they would not have been unaware of the fact of her flight and therefore to conclude as he did as to the futility of the issuing of the summonses and the fact that the arrest warrant would not be served on any person other than the person who the judge was entitled to find they must have realised would have left Sri Lanka by then. Of greater significance is the point at paragraph 22 about the passport. It was in my view perfectly open to the judge to consider that it was inconceivable that the appellant would have been released without her passport first being surrendered if it had in fact been required. The authorities must have been aware that the appellant might do what in fact she actually did and get hold of her passport and leave the country rather than reporting. It was therefore open to the judge to find this was a matter adverse to the appellant's credibility.

18. Again the concerns about the newspaper clippings were open to the judge. It was open to him to find no good reason why an independent newspaper would publish such a matter nearly two years after the event, bearing in mind that it was a relatively insignificant story. The letter from the British Tamils Forum dated 4 August 2015 is as the judge said, written as the welcoming of a new member with information as to the activities of the organisation which does not sit well with the appellant's claim to have been a supporter for years and to have been active, and accordingly it was again open to the judge to take this into account in assessing credibility. As regards the point at paragraph 20 of the refusal letter concerning the appellant's claim that when questioned she was asked about her tattoo and beaten, together with the photographs she provided showing images of her arms and legs showing signs of multiple scarring, the judge referred at paragraph 26 to the fact that the appellant might have scars on her lower limbs but it was false to say that these had ever aroused the suspicion of the authorities and it seems that she was asked about the tattoo rather than the scars.

19. Bringing these matters together, I considered that it was open to the judge to entertain the doubts that he did about the appellant's credibility. There is no indication that the appellant was taken by surprise or disadvantaged in any way by the judge taking these points as they were matters that were before him at the hearing rather than points that had been raised to the Secretary of State which she could have addressed in the decision letter. The adverse credibility findings were fully open to the judge, and as a consequence his decision dismissing this appeal is endorsed. The appeal is dismissed.

Notice of Decision

The appeal is dismissed.

No anonymity direction is made.

Signed Date 10 June 2016

Upper Tribunal Judge Allen