Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: aa/04993/2015

THE IMMIGRATION ACTS

Heard at City Centre Tower, Birmingham
Decision & Reasons Promulgated
On 5th August 2016
On 31st August 2016

Before

DEPUTY upper tribunal JUDGE RENTON

Between

TS
(ANONYMITY DIRECTION made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr J Holt, Counsel instructed by the Coventry Law Centre
For the Respondent: Mrs H Aboni, Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction
1. The Appellant is a female citizen of Sri Lanka born on [ ] 1995. The Appellant first arrived in the UK on 9th January 2013 in possession of a valid visa and was given leave to enter as a student until 13th February 2014. She applied for asylum on 25th January 2013. That application was refused for the reasons given in a Notice of Decision dated 10th March 2015. The Appellant appealed, and her appeal was heard by First-tier Tribunal Judge Andrew (the Judge) sitting at Birmingham on 17th June 2015. She decided to dismiss the appeal for the reasons given in her Decision dated 19th June 2015. The Appellant sought leave to appeal that decision, and on 1st September 2015 such permission was granted.
Error of Law
2. I must first decide if the decision of the Judge contained an error on a point of law so that it should be set aside.
3. The Appellant's case before the Judge was that she was at risk on return to Sri Lanka because her brother had been detained twice in 2008 and 2010 as a suspected member of the LTTE. The Appellant herself was detained along with other members of her family in March 2012 concerning the activities of her brother. On this occasion the Appellant was detained only for one day. The Appellant was detained again on 13th April 2012 concerning a school friend whose family was involved with the LTTE. Following her kidnap, the Appellant was detained, threatened, and tortured. The Appellant was released on payment of a bribe.
4. The Judge dismissed the appeal because although she was satisfied that the Appellant was detained as claimed, she did not accept that the Appellant was released upon a payment of a bribe, and found that the authorities in Sri Lanka had no continuing interest in the Appellant. This was partly because the Appellant delayed for eight months following her detention in leaving Sri Lanka. The Judge was also not satisfied that since her detention the Appellant had not been in touch with her father, and that the authorities had made enquiries about the Appellant including the use of photographs of her following her departure. This was because this part of the Appellant's case was not corroborated and was made with a view to enhancing her claim. However, the Judge did accept the Appellant's evidence of her sur place activities in the UK, but the Judge found these activities as not sufficient to put the Appellant at risk on return according to the risk categories identified in GJ and others (post civil war: returnees) Sri Lanka CG [2012] UKUT 00319 (IAC). In reaching these conclusions, the Judge took account of the medical evidence that the Appellant suffered from moderate depression with features of traumatic stress.
5. At the hearing before me, Mr Holt submitted that the Judge had erred in law in coming to these decisions. The Judge erred in law in finding that it was not credible that the authorities had made enquiries about the Appellant following her departure. It was apparent from what the Judge wrote at paragraph 32 of the Decision that she had required this part of the Appellant's account to be corroborated. The Judge had not believed the evidence of the Appellant's brother in this respect without explaining why. The Appellant's brother had been granted refugee status, and at paragraph 16 of the Decision the Judge accepted his credibility. This error was material because if the authorities had tried to locate the Appellant following her departure from Sri Lanka, she would have come within the risk categories identified in GJ and others.
6. In response, Mrs Aboni referred to the Rule 24 response and argued that the Judge had not erred in law. She considered all the relevant evidence and came to a conclusion open to her on the evidence before her. She had made clear findings that the Appellant was not at risk on return despite her detention. The Judge had made satisfactory findings as to the credibility of the Appellant's account.
7. I do find an error of law in the decision of the Judge which I therefore set aside. Although the Judge accepted the credibility of much of the Appellant's evidence, crucially she did not believe that the authorities had taken an interest in the Appellant by searching for her after her departure from Sri Lanka. At paragraph 33 of the Decision, the Judge stated that she did not find credible the claims of the Appellant and her brother in this respect without explaining why except to note that there was some delay in the Appellant leaving Sri Lanka (which the Appellant explained by claiming she spent this period in hiding), and to refer to a lack of corroboration. This finding is contradictory to what the Judge wrote at paragraph 16 of the Decision. There the Judge accepted that the Appellant's brother had given a credible account of his own experiences in Sri Lanka. This apparent change in the treatment of the evidence of the Appellant's brother is not sufficiently explained and amounts to an error of law. It is a material error of law for the reason given in his submission by Mr Holt.
8. I did not proceed to remake the decision of the Judge. Instead, I decided that that decision should be remade in the First-tier Tribunal in accordance with paragraph 7.2(b) of the Practice Statements. None of the findings of the Judge as to credibility and of fact will be preserved at that hearing.

Decision

The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.

I set aside that decision.

The decision in the appeal will be remade by the First-tier Tribunal.

Anonymity

The First-tier Tribunal made an order for anonymity which I continue for the reasons originally given by the First-tier Tribunal.

Signed Date 31st August 2016

Deputy Upper Tribunal Judge Renton