Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/05107/2015

THE IMMIGRATION ACTS

Heard at Newport (Columbus House)
Decision & Reasons Promulgated
On 13 December 2016
On 21 December 2016

Before

UPPER TRIBUNAL JUDGE GRUBB

Between

J S
(ANONYMITY DIRECTION MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms J Sane, instructed by Fountain Solicitors
For the Respondent: Mr I Richards, Senior Home Office Presenting Officer

DECISION AND REASONS
1. Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) I make an anonymity order. Unless the Upper Tribunal or Court directs otherwise, no report of these proceedings shall directly or indirectly identify the Appellant. This direction applies to both the appellant and to the respondent and a failure to comply with this direction could lead to Contempt of Court proceedings.
Background
2. The appellant is a citizen of Sri Lanka who was born on 28 November 1988. She arrived in the United Kingdom on 24 October 2009 with entry clearance as a Tier 4 Student valid from 8 October 2009 until 26 February 2013. On arrival, however, her leave was cancelled at port. She appealed against that decision but her appeal was dismissed by Immigration Judge Chohan in a decision promulgated on 22 December 2009. Her application for reconsideration was refused by the High Court on 22 January 2010.
3. Thereafter, the appellant failed to report and absconded.
4. On 29 July 2013, she claimed asylum at the Asylum Unit in Croydon. A substantive asylum interview took place on 2 March 2015.
5. The basis of the appellant's asylum claim was principally that she had been detained and seriously ill-treated, including being raped, whilst detained by the Sri Lankan authorities on 10 August 2009. The basis of her detention was that it was claimed she had helped the LTTE (which she denied) and her connection with the LTTE was said to be through a school friend ("VP") who had been arrested by the Sri Lankan authorities in May 2009 and whose whereabouts were unknown.
6. The appellant claimed that she had been released on 25 August 2009 as a result of a payment to an army officer arranged by her uncle and, having stayed with a friend of her uncles, on 27 August 2009 she met an agent who arranged for her to stay in Colombo. The appellant had previously obtained a passport in June 2009. She obtained entry clearance as a student and left Sri Lanka for the UK on 24 October 2009.
7. In December 2009, her uncle told her that the authorities had come to the house looking for her as she had escaped detention. The appellant claimed that she had not had any contact with her family since that time.
8. Whilst in the United Kingdom, in November 2012 she met "AR" and they have had a daughter together who was born on 13 February 2014. They underwent a religious marriage ceremony on 14 January 2015.
9. In her claim to the Secretary of State, the appellant claimed that she would be at risk on return to Sri Lanka on two bases. First, she feared the Sri Lankan authorities would detain and seriously ill-treat her as she had escaped detention and was considered to be a member or supporter of the LTTE. Secondly, she would not be accepted by the community in Sri Lanka as she would be returning as a woman who had had a child out of wedlock.
10. On 5 March 2015, the Secretary of State rejected her claim for asylum, humanitarian protection and on human rights grounds. The Secretary of State rejected the appellant's account that she had been arrested and detained on 10 August 2009 and had been seriously ill-treated by the Sri Lankan authorities. In addition, the Secretary of State concluded that, in the light of the Country Guidance case of GJ and Others (post-civil war; returnees) [2013] UKUT 00319 (IAC), the appellant had failed to establish that, even taking her claim at its highest, that she was at risk on return to Sri Lanka. Secondly, the Secretary of State rejected the appellant's claim that she would be at risk as a woman returning with a child born out of wedlock. Finally, the Secretary of State rejected the appellant's claim under Arts 3 and 8.
The Appeal to the First-tier Tribunal
11. The appellant appealed to the First-tier Tribunal. In a detailed determination dated 5 May 2016, Judge S Goodrich dismissed the appellant's appeal on all grounds.
12. First, the judge found the appellant's account to have been arrested, detained and seriously ill-treated by the Sri Lankan authorities not to be credible despite supporting medical evidence that the appellant had scarring and marks on her body "typical of the trauma described."
13. Secondly, the judge rejected the appellant's claim that she was at risk as a woman returning with a child out of wedlock because the judge did not accept that others would become aware of her child's status unless the appellant told them which the judge considered to be "most unlikely".
14. Finally, the judge considered a ground raised at the hearing that the appellant as a Tamil woman returning to the North of Sri Lanka was at risk of persecution as a member of a particular social group. The judge accepted that the "conditions in Sri Lanka for women are very far from satisfactory". However, having considered the background evidence and the fact that the appellant would be returning to her family with her husband, the judge was not satisfied that there was a real risk of persecution or serious harm contrary to Art 3 on the basis of, as the judge put it, "gender persecution at the hands of the security services".
The Appeal to the Upper Tribunal
15. The appellant sought permission to appeal to the Upper Tribunal challenging the judge's adverse credibility finding, her finding that the appellant would not be at risk as a returning woman with a child born out of wedlock and, finally, her finding that the appellant would not be at risk of gender-based violence and was not a member of a PSG.
16. Permission to appeal was initially refused by the First-tier Tribunal. However, on 5 July 2016 the Upper Tribunal (UTJ Kamara) granted the appellant permission to appeal on all grounds.
17. On 20 July 2016, the Secretary of State filed a rule 24 response seeking to uphold the judge's findings and decision to dismiss the appeal.
18. Thus, the appeal came before me.
The Appellant's Submissions
19. Ms Sane, who represented the appellant, relied upon the three grounds in the appellant's "Grounds of Appeal" which she developed in her oral submissions. Grounds 1 and 2 challenge the judge's adverse credibility finding rejecting the appellant's account (and therefore basis for any future risk) that she had been arrested, detained and seriously ill-treated, including raped by the Sri Lankan authorities in August 2009 and also the judge's adverse finding in relation to the risk to the appellant returning as a woman with a child born out of wedlock. Ground 3 challenges the judge's finding that the appellant had failed to establish a real risk of gender-based violence if she returned to the North of Sri Lanka.
20. The grounds may be summarised as follows.
21. Ground 1:
(1) The appellant relied upon medical evidence which, the judge accepted, demonstrated that the appellant had scarring "typical of the trauma" she had described. In the light of that, the judge had erred in law by failing to give the appellant an opportunity to deal with a number of adverse points relied on by the judge to find the appellant's account not to be credible:
(a) The appellant was not given an opportunity to deal with any allegation that her injuries were caused by a different mechanism from that supported by the medical evidence.
(b) The judge appears to have doubted the credibility of the appellant's claim to have left Sri Lanka at short notice with her student visa on the basis that she must have been able to establish she had the required funds for a prior 28-day period as set out in the respondent's PBS Policy Guidance (in force from 31 March 2009). That policy document had not been in evidence before the judge.
(c) The judge was wrong to disbelieve the appellant's evidence that she re-sat her A levels in 2008 on the basis that the certificates provided were dated 2007 which called into question her claim that she had been studying at the time with her friend VP whom she claimed was a member of the LTTE without giving the appellant an opportunity to deal with the discrepancy.
(d) The judge was wrong to doubt the appellant's account of her arrest and detention in respect of which she said that her hair had been cut short in detention when the photograph on her entry clearance application dated 29 September 2009 (after she had been released) showed that her hair was tied back. The photograph was not shown to the appellant and she was not given an opportunity to comment on it.
22. Ground 2 challenges the judge's credibility findings on the basis of irrationality or that they are inadequately reasoned as follows:
(1) The judge was wrong in law to disbelieve the appellant's detailed account of her rape whilst in detention simply on the basis that her account was "implausible" as it "would be physically very difficult indeed" to rape the appellant in the way she described.
(2) The judge was wrong to conclude, in the light of the background evidence, that it was not credible that the Sri Lankan authorities would have any adverse interest in the appellant in August 2009 based solely on her past attendance at LTTE events as she claimed. Reliance is placed upon the UNHCR "Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka" (2009) which supported the position that Tamils originating from the North and East were frequently associated with the LTTE and of interest, at that time, to the Sri Lankan authorities.
(3) The judge was wrong to count adversely against the appellant that she had no explanation why the Sri Lankan authorities had not sought to arrest her earlier, although VP had been arrested in May 2009 and VP's family had not been detained. The appellant was not in a position to offer an explanation and the judge's doubt failed to have regard to the fact that repressive regimes might not behave reasonably.
(4) The judge had been wrong to doubt the appellant's credibility on the basis that it was implausible that, having applied for a passport, it would take six weeks to reach her by post. Further, the appellant had advanced a reasonable explanation why she had applied for a passport before she was detained, namely that by June 2009 she was in fear for her life following the arrest of her friend VP in May 2009.
(5) In relation to the appellant's claim to be at risk as a woman returning with a child out of wedlock, the judge had been wrong to find that it would only be discovered if the appellant told her family which was unlikely because the appellant's evidence as set out in paras 19-20 of her witness statement was that in order to obtain a passport for her daughter she would need, in effect, to add her daughter to the "family book" which would require her to establish her marriage and, therefore, disclose that her child was born out of wedlock.
23. Ground 3 argues, on the basis of the background evidence, including the UNHCR Eligibility Guidelines that the North and East of Sri Lanka is "highly militarised" and that, as a consequence, there is a risk of gender-based violence for Tamil women in general from the Sri Lankan military and authorities. In her oral submissions, Ms Sane submitted that the judge at para 78 had, in rejecting the appellant's claim, in effect, wrongly identified a number of risk categories into which the appellant did not fall. Ms Sane submitted that the background evidence identified a more general risk to women which included the appellant. Secondly, she submitted that in finding that there was no real risk to the appellant the judge's finding was perverse or irrational in the light of the background evidence.
The Respondent's Submissions
24. As regards Grounds 1 and 2, Mr Richards, on behalf of the Secretary of State, submitted that there had been no procedural unfairness. It was clearly recognised before the judge that the appellant was a vulnerable individual and, therefore, it was only appropriate that the Presenting Officer did not engage in aggressive cross-examination. However, it was clear from the outset that the appellant's account was not accepted. Mr Richards submitted that the Presenting Officer was not required to challenge every specific part of the evidence. The judge correctly was well aware of the appellant's vulnerability. The report of the medical expert (Dr Cohen) was accepted by the judge as providing "strong support" did not mean that the report was determinative. The judge had come to her own conclusions based on the whole of the evidence and had given detailed reason at paras 60-62 for her adverse credibility finding.
25. That said, Mr Richards accepted that the judge's reliance in paras 45-46 on the fact that the appellant's entry clearance application had been supported by documentation which the judge must have taken to be inconsistent with the appellant's claim to have left Sri Lanka unexpectedly was confusing.
26. Further, whilst Mr Richards did not accept that the photograph of the appellant on her entry clearance application had not been shown to the appellant at the hearing, he expressed the view that there might be difficulties with the judge's reasoning which assumed that the entry clearance application made on 25 September 2009 included a photograph taken at that time rather than an earlier point in time prior to her detention.
27. With those caveats, Mr Richards submitted that there had been no procedural error and the judge's reasoning was sufficient to sustain her adverse credibility finding.
28. Mr Richards accepted that if the adverse credibility finding could not stand, although there might be an argument as to whether the appellant would be at risk applying GJ and Others taking, in effect, her case at its highest, the judge had not dealt with that point in her determination.
29. As regards ground 3, Mr Richards submitted that the judge had considered in detail the background evidence in relation to gender-based violence at paras 70-79 of her determination. He submitted that the judge accepted that there was a high degree of militarisation in the North and East of Sri Lanka and had recognised that the situation for women was "very difficult". Nevertheless, the judge found that the evidence did not establish a real risk of sexual violence. Her reasons for doing so were adequate and her finding was not irrational.
Discussion
30. I deal first with Grounds 1 and 2 which challenge the judge's adverse credibility finding and reject the appellant's claimed past persecution and, therefore, her claimed risk on return as a member or supporter of the LTTE.
31. I have reached the conclusion that Ms Sane has made good sufficient of the points raised in Grounds 1 and 2 to establish a material error of law such that the judge's adverse finding cannot stand.
32. First, the judge failed, in my judgment, to give sufficient regard to the expert report of Dr Cohen in the absence of any cross-examination alleging that the scarring and injuries of the appellant were not caused by the events she described as having occurred during her detention by the Sri Lankan authorities in August 2009.
33. The starting point is the judge's findings in relation to Dr Cohen's report which she accepted. Those findings are set out at para 35 as follows:
"35. Dr Cohen saw and examined the appellant on 11th January 2016. Within the history she noted the appellant's account. In summary in her report:
a) She found that the appellant has 19 lesions to her body including her breast area and thighs which are typical of cigarette burns and which are a strong indicator of sexual abuse. The appellant also has unusual pigmentation change to the skin of her neck which she finds typical of petrol bag asphyxia.
b) She considered but rejected the possibility of fabrication of the physical evidence in line with paragraph 105 f of the Istanbul Protocol. There was no evidence of exaggeration and embellishment. The psychological evidence supports the account of the torture described.
c) When considered self infliction as a possible cause she noted that the commonest site for self-infliction is the inside of the non-dominant forearm but only one of the lesions is situated there and the pattern of the appellants' burns is not usually found in self-inflicted injury.
d) The appellant has intrusive recall of her traumatic experiences, difficulty sleeping and nightmares reliving her experiences and low mood. She demonstrates triggers to her re-experiencing symptoms such as having to talk about her experiences and avoids doing so as far as possible. She has not disclosed her experience of sexual violation to her husband for fear that he or his family may reject her. She has coped with these symptoms since 2009 and has only recently had any treatment (Fluoxetine).
e) She considers that the appellant fulfils the criteria for PTSD. She bases her diagnosis not only on the history related to her but on her observations throughout the examination, the responses made to specific questions and her objective findings as to the appellant's mental state. She considered other causes but PTSD requires an experience of overwhelming fear or threat to life such as the experience of torture described.
f) She notes from the medical records that the appellant had had fluctuating symptoms over the last several years: a similar symptom profile has at times been identified and at others she has not been recorded as suffering from significant mental health problems. She considers that it is usual for the severity and predominance of symptoms to vary other time (see para 58).
g) She considers that the experiences and specifically the sexual violence the appellant describes, would have affected her ability to recount her experiences to claim asylum earlier than she did so. The difficulty in making disclosure is well recognised in the asylum context and more generally. She noted that the appellant has said that she had not even told her husband of the sexual violence for fear that he or his family may reject her.
h) Dr Cohen considered that the appellant is in need of continued treatment with the anti-depressant and would benefit from psychological therapy.
i) If returned to Sri Lanka, where she would be without her current supports, there are many more triggers to intrusive recall of her traumatic experiences and she is in fear of further detention and torture, her current mental state is likely to be seriously exacerbated. If she were returned without the support of her husband she would be less likely to be able to access mental health care and less able to care for her child.
j) Her ability to give evidence may be affected by her wish to keep the experience of sexual violation confidential. She may, even in a closed and all female court, have difficulty in describing what occurred as she found it difficult and distressing even in the relative privacy of the examination room."
34. At para 36, the judge noted that she must consider all the evidence, including the "medical/psychiatric and country evidence" in the round. At para 38, the judge set out her conclusion in respect of Dr Cohen's evidence as follows:
"38. The overall effect of the evidence of Dr Cohen is that viewed as a whole, and in the context of the appellant's PTSD, the cigarette burns and changes in pigmentation at the neck seen are typical of the trauma described (meaning that this is an appearance usually found with this type of trauma but there are few other possible causes). I note that Dr Cohen did not consider the possibility of self infliction by proxy despite the guidance in KV (scarring - medical evidence) Sri Lanka [2014] UKUT 00231 as to best practice (in terms of assisting the Tribunal) in this regard (see para 294)."
35. The judge there noted that the injuries to the appellant, including the cigarette burns and the rather particular injuries to her neck said to have occurred as a result of an act of "petrol bag asphyxia", were "typical of the trauma described", noting in accordance with the Istanbul Protocol that this meant that there was "an appearance that is usually found with this type of trauma, but there are other possible causes" (see page 23 of Dr Cohen's report). Dr Cohen's report was, therefore, highly supportive of the detailed events which the appellant had described in her evidence. The "typical of" category under the Istanbul Protocol lies above a description of "consistent" and "highly consistent" but below that of "diagnostic of" - the latter meaning that the appearance "could not have been caused other than in the way described". Nevertheless, the "typical of" descriptor which the judge did not seek to dispute provided, despite comments made by the judge set out in para 38 and then in para 39, evidence which the judge found provided "strong support for the appellant's case" (see para 39).
36. Whilst I accept, indeed it was conceded by Ms Sane, that Dr Cohen's report was not determinative of the appellant's credibility, it nevertheless stood, so to speak, presumptively as supporting the appellant's case. In the light of this, I accept Ms Sane's submission, based upon the decision of the Upper Tribunal in RR (Challenging evidence) Sri Lanka [2010] UKUT 000274 (IAC), that it was incumbent upon the Presenting Officer to cross-examine the appellant on any alternative "possible causes" but that that did not happen. In RR, the Upper Tribunal said this at [154]-[156]:
"154. Once it is apparent that the appellant is scarred we have to ask ourselves how he came to be scarred. He says that he was tortured. The other possibilities are that the scars were the result of some innocent but unimaginable mechanism, or that they are the result of torture in very different circumstances to those advanced by the appellant. One might speculate that they were self-inflicted, presumably to promote the appellant's case. None of these explanations is beyond belief but they do not appear to us to be likely.
155. Ms Kiss was not able in her cross-examination to lay a foundation to support any suggestion that the scars were self-inflicted or otherwise the result of bad faith on the part of the appellant. As we have already mentioned it was not put to the appellant that the scars were self inflicted or otherwise caused in a way inconsistent with the appellant's case. That implies no criticism of Ms Kiss. On the contrary, it seems to us to reflect the reality of the case.
156. In the absence of any evidence tending to suggest a different mechanism we do not see how we can fairly reject the appellant's evidence about their cause when no alternative mechanism was put to him and he was not cross-examined on the basis that he was making up his entire case."
37. That was, in effect, the position in this appeal as regards the medical evidence and the absence of any cross-examination or suggestion of alternative causes which were put to the appellant.
38. In my judgment, in the absence of cross-examination which gave the appellant an opportunity to deal with any suggested alternative causes of her specific injuries, the judge failed to give adequate reasons for not accepting the import of Dr Cohen's evidence and also, as [156] of RR points out, acted unfairly in rejecting the appellant's evidence about the cause of her injuries.
39. In itself, given the strength and indeed the judge's own view of the importance of Dr Cohen's evidence, the judge's failure properly to deal with this evidence in itself is, in my judgment, a material error of law.
40. However, I also accept a number of other criticisms made by Ms Sane, some of which are accepted by Mr Richards.
41. Mr Richards accepts that the judge's reasoning at paras 45-46 was confusing where she doubted the appellant's claim to have left Sri Lanka "wholly unexpectedly" on a student visa following her release from detention based upon the fact that she must (as the PBS Policy Guidance requires) have been able to produce bank statements from her father (as her sponsor) showing substantial funds were held in that account from 28 August 2009 which was three days after her claimed release on 25 August 2009. The judge said this at para 46:
"46. ?On the appellant's case her departure on a student visa was wholly unexpected and only came about following her release from detention. It follows on her case that (unless her father had already the substantial funds shown in his account) funds would have to have been found, deposited, cleared and the necessary letter provided very quickly indeed given that, on the appellant's account, she was released on 25th August and the agent's plan that she would leave for the UK was made on about 27th August 2009."
42. Why the judge considered that it was in some way sinister that the appellant was able to produce bank statements from her father showing that he had the required funds within three days of her being released from detention is wholly unclear. It is pure speculation why this was the case. It could have simply been that her father always had the money in the account and, in any event, even if he obtained it at short notice, there is nothing inherently implausible in him doing so in a few days or that the bank statements could be obtained in short notice. The judge's adverse inference was pure speculation and not based upon any evidence. That was, in my judgment, also an error in the judge's reasoning.
43. Further, although it is unclear whether the appellant was shown the photograph of her on her entry clearance application made on 25 September 2009, Mr Richards accepted that it was problematic that the judge had assumed that photograph had been taken after her release from detention. Only if it had would there be an apparent inconsistency between her account that her hair had been cut very short during detention and a photograph which apparently showed that she had hair tied back behind her head. Mr Richards acknowledged that there was no basis for the judge's assumption that this was a photograph taken after her detention rather than a photograph which had been taken at an earlier point in time.
44. Having consulted the judge's Record of Proceedings it is unclear to me whether the appellant was, in fact, shown the photograph although what the judge says in para 60(e) of her determination strongly suggests that she was shown the photograph. Ms Sane indicated that that was not her recollection of the hearing. In the event, it is not necessary for me to resolve that issue because it is plain to me that the judge was not entitled to identify the inconsistency in the appellant's account by reference to this photograph unless it was the case that the evidence established the photograph was taken after the appellant's release from detention. I am unable to detect any evidence on that specific issue and that it was a point put to the appellant in her oral evidence. In the light of that, the judge's reasoning is inadequate and amounts, in itself, to an error of law.
45. I am, therefore, to that extent satisfied that the appellant has established the points raised in Ground 1 (a), (b) and (d).
46. Ms Sane accepted the point raised under Ground 1(c) (above) in relation to the failure to put to the appellant the discrepancy between her claim to have re-sat her A levels in 2008 whilst her A level certificates are dated 2007, was not her strongest point. I agree. The matter was raised in cross-examination and Ms Sane had a full opportunity to deal with it in re-examination but did not do so. There was nothing unfair, therefore, in the judge relying on this discrepancy.
47. There is, also, a further error in the judge's reasoning raised under Ground 2(1) (above) which adds to the unsustainability of the judge's adverse credibility finding.
48. In her evidence the appellant gave a detailed description of how she had been raped by three men while she was in detention. That description is set out at paras 20-21 of the judge's determination as follows:
"20. I explained to Ms Sane that I needed clarification of the appellant's description of the rape as set out at para 24 of the statement dated 26th February 2015 (RB/B9) and I invited her to deal with that. In answer to Ms Sane the appellant said that on the fourth day she was sitting in the room tied to a chair. The men tied both her legs. Her legs were stretched and they put her legs on the window. Her legs were tied at the ankle. What happened next was that one man was sitting on her legs below her knees. The person behind her was hugging her from the back. The man seated on her legs tried to divide her legs. The window sill was level with the chair. Her legs were stretched out, resting on the sill. The man sat below her knees and divided her thighs with his hands. Her ankles were still tied. Whilst one man was sitting on her legs beneath the knees another was holding her from the back and another one came and raped her. When the first person raped her she was unconscious. She had a blackout because it was hurting badly. Asked by Ms Sane if all three raped her she said that she wanted to explain that that when they came in to the room they tied her legs. One man was seated on her legs facing her. He opened her legs and the third man penetrated her. When the first person was raping her she felt faint. When the second person tried to rape her she lost consciousness. After that she did not know what happened. Although she was unconscious she felt the pain. When she regained consciousness there was no one there. She was still seated on the chair. She saw that her legs were untied. She saw that her clothes were torn. Wire had been used to tie her legs.
21. In answer to my request for clarification the appellant pointed to her shins to describe where the man was sitting on her legs which had been tied at the ankle and were resting on the window sill. I asked her to describe his position: she said that he was sitting with his legs either side of hers on the floor and was facing her. Both his hands were close to her "thing" and he opened it wide. He was sitting in the same position at this time. The third man then positioned himself in between and he was facing her. The man sitting on her shins continued sitting on her shins whilst the other man was raping her."
49. Having set out that evidence, at para 60(d) the judge rejected the appellant's account, in effect, on the basis that it was implausible as follows:
"d. The appellant has maintained broad consistency in her account that she was raped and what happened to her. I do not attach any weight to differences in her account about how many officers were present when she left the camp or the fact that she said in evidence that the asphyxiation incident(s) happened before the rape whereas she told Dr Cohen that it was after. I recognise that the difficulty in maintaining consistency when speaking of traumatic events is well known. I refer to her evidence set out at paragraphs 20 and 21 above. On her evidence her ankles were tied after the men entered the room and remained tied until after the event. I consider that it would be physically very difficult indeed to rape someone sitting in a chair with her legs in the position described, with her ankles tied and with another man sitting on her shins."
50. Whilst it is not necessarily wrong for a judge to rely in her reasoning on an aspect of an appellant's account as being implausible, there are clear dangers in doing so as was recognised by the Court of Appeal in HK v SSHD [2006] EWCA Civ 1037. Of course, a judge must be aware that what might appear to be implausible viewed from the cultural standpoint with which the judge is familiar may, in fact, be entirely plausible when viewed from a different cultural standpoint. That, of course, is not the issue in this appeal.
51. However, when a judge has recourse to reasoning which, expressly or implicitly, doubts the plausibility or possibility of the events occurring as an individual claims, in the absence of other evidence such as documents to substantiate that reasoning, the judge runs the risk that his or her conclusion is simply speculation or a purported commonsense conclusion which does not stand up to objective scrutiny. That, in my judgment, is the error into which the judge in this appeal fell. There is nothing inherently implausible in the appellant's claim that she was raped in the circumstances that she describes.
52. Rape is recognised in the background evidence (and that was not in dispute before me) as a possibility when an individual is detained by the Sri Lankan authorities with a suspected LTTE connection. The judge in this appeal considered that it was "physically very difficult indeed" for someone to rape the appellant when she was sitting in a chair with her ankles tied, her legs raised up and resting on the window sill with one man sitting on her shins. Her evidence was that her legs were opened by the man sitting on her shins and, whilst she was held behind by a second man, a third man raped her. I do not accept that that description makes it implausible that the appellant was raped in the way that she describes. It does not offend any commonsense notion of what is possible physically or otherwise. In my judgment, the judge was not entitled to reject the appellant's account of her claimed rape on the implied basis that it was implausible because it was "physically very difficult indeed" for her to be raped in the way that she described. The judge's reasoning was inadequate and amounted to an error of law.
53. It is not necessary for me to address the remaining points made on the appellant's behalf under Ground 2 which challenge the judge's adverse credibility finding in respect of the appellant's claimed past persecution. Although the judge gave a number of additional reasons for doubting the appellant's credibility, the errors which I have identified above were material to her adverse credibility finding. I am unable to conclude that, had the judge not fallen into these errors, she would nevertheless have reached the same conclusion in respect of the appellant's credibility.
54. Consequently, for these reasons, the judge's adverse credibility finding cannot stand.
55. In relation to ground 2, that leaves one matter raised under Ground 2(5) set out above in respect of the judge's finding that the appellant had not established she was at risk as a returning woman with a child born out of wedlock.
56. The judge dealt with this briefly in para 63 where she concluded that no risk arose because the appellant's position would only be known if she told her family which was unlikely. There was evidence in paras 19 and 20 of the appellant's witness statement set out in full at para 21 of the appellant's Grounds of Appeal which state a factual basis upon which it is said that the appellant, in order to obtain a passport for her daughter, would, in effect, have to disclose the documents concerning her marriage which would show that her daughter was born out of wedlock.
57. In reaching her finding in para 63, the judge did not take into account the appellant's evidence which, if accepted, might have justified a finding that the status of the appellant's child could become known on return to Sri Lanka. The judge's failure to consider the appellant's evidence was an error and her factual finding cannot stand. I did not hear any argument in relation to how, even if this were established, it was contended that the appellant was at real risk of persecution or serious ill-treatment contrary to Art 3 either from the community at large or from her family. But, equally, it was not contended by the respondent that the appellant could not establish a real risk to her if the judge had made a factual finding in the appellant's favour. It seems to me that this basis of the appellant's claim is probably the weaker one. As this appeal will inevitably require a rehearing on the basis of the appellant's claimed risk on return as someone perceived to have LTTE connections, proper findings need to be made in relation to this basis of the appellant's claim also and whether, on the basis of those findings, the appellant has established a real risk on return.
58. For these reasons, therefore, I set aside the judge's findings and decision in respect of the appellant's asylum claim based upon her claim to be at risk as a result of an LTTE supporter and her arrest, detention and ill-treatment in August 2009 as well as her claim to be at risk as a returning woman with an illegitimate child.
59. I now turn to consider Ground 3 which challenges the judge's finding at para 79, that the appellant has failed to establish a real risk of persecution or serious harm contrary to Art 3 by reason of gender-based violence.
60. At paras 70-77, the judge set out in detail the gist of the background evidence including the UNHCR Eligibility Guidelines of 2012 as follows:
"70. This had not been advanced previously but I gave leave to the appellant to add this ground. Ms Sane submits that the appellant is at real risk of gender persecution at the hands of the security services by reason of her membership of a particular social group on return to Jaffna. The innate characteristic in which she relies is that of gender and ethnicity. The case advanced is that the militarisation in the north has led to an increased risk of rape and sexual violence. She submits that the extent of violations is likely to have been obscured by chronic under-reporting. She relies in particular on background evidence at AB2/122 and 134 and refers also to the UNHCR's Eligibility Guidelines for assessing the International Needs of Asylum seekers in Sri Lanka dated 21st December 2012.
71. I have considered all of the background evidence on which the appellant relies but will focus on that to which Ms Sane made specific reference. I have read the report of the International Crisis Group 'Sri Lanka: Women's Insecurity in the North and East Crisis Group 20th December 2011' (AB2/115 to 128). The document, as a whole, analyses the complex situation of vulnerability of Tamil women and girls in the North and East in view of the events since 2008. It examines a number of strands in a complex picture: death, displacement and detention; militarised and centralised control; poverty trauma and fragility; continuity and change in post LTTE society. It considers under the heading 'Alarming Consequences: Gender Based Violence' accounts of rape and sexual assaults by the security forces in homes (and has a specific section concerning homes and villages post war); sex work, trafficking and exploitation; sexual violence within the Tamil community and the collapse of previous norms; the 'grease devil' saga: danger, rumour and distrust of law enforcement and the military.
72. I consider that the report provides a potent description of the broad impact of very many factors impacting adversely upon the lives of Tamil women in the North and East in 2011 in the context of aftermath of a civil war that lasted for 25 years. The civil war has left tens of thousands of widows and female headed households. Single women are heavily over represented. Another factor that places women at risk is the search for missing family members which imposes tremendous financial and emotional toils.
73. The section on which reliance is placed AB2/122 refers to domestic abuse and domestic violence in general but states that explicit allegations of sexual abuse by security forces are more readily picked up by Tamil media outlets. Dealing with gender based violence on a generic basis it comments that many incidents are not reported at all while others are exaggerated. This leaves the Tamil community, the government and the rest of the country with an incomplete picture of the experiences of women in the north and east. It states, with reference to rape and sexual assault by security forces, that the information deficit is perhaps greatest. It notes that 'in the final months of the war and in the initial stages of screening and internment in the Vanni, there were various acts of sexual violence by the military, including rape of civilians and suspected cadres. But as life in these crowed camps continued, sexual violence within the Tamil community increased. Now, for women in the resettled villages across the north and east, domestic violence within the community (including sexual violence) as well as sex work and coercive relationships more broadly are serious problems. The fear and potential for more widespread sexual violence by the security forces also remain.' Other sources quoted refer to the substantial challenge for human rights activists and others in documenting incidents reliably. The authors consider that this is partly due to fear and stigma, which both perpetuate rumours and deter real victims from reporting incidents. It is noted that there is also a sense now among the many who live and work in the north that women 'are not scared of the army like before and the army is not seen openly to engage in violence against women.'
74. My view of the report is that it deals with a wide range of issues affecting Tamil women. Indeed, the authors note that publicising information available about this population, and the collecting and sharing more should be a priority for the government and international partners. In effect the authors themselves question the extent to which reliance can be placed on the differing views. Additionally, written as it was in 2012 and reflecting on largely anecdotal sources in 2009 and 2011 I am not persuaded that this paper necessarily reflects the current situation regarding the impact of high militarisation.
75. I have considered the article 'What Women Say Elusive Peace, Pervasive Violence: Sri Lankan's Women's Struggle for Society and Justice' published in Spring 2013 by the International Civil Society Action Network. This too emphasises the high proportion of single women households. While the majority of the 280,000 to 300,000 IDPs have returned to their areas of origin, the population and the region remain fragile. The vulnerability is most evident in women - especially the widowed, wives of the disappeared and those heading households. The government claims to be addressing their needs yet much of the assistance is not targeted adequately. A 2011 study of by the Sri Lankan Medical Association of Colombo shed light on the extent of SGBV (sexual gender based violence) among the displaced populations. The study took place in 12 localities including Jaffna with findings drawn together from police reports, hospital records and welfare centres revealed that most victims were between 20-44 years old: most perpetrators were men and related to victims; violations mostly took place in domestic environments; the authorities did not have the capacity or resources to collect and maintain SGBV data and were unable to recognise SGBV as a specific type of offence.
76. The Operation Guidance Note provides further background material. I have paid particular attention to section 3, 13 et seq which concerns the treatment of women. At section 3.13.5 the OGN states:
UNHCR in their 2012 'Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka state:
Reports have documented high levels of sexual and gender-based violence against women and girls in the final phase of the armed conflict, as well as in the post-conflict phase, including in parts of the country not directly affected by the conflict. However, this type of violence remains under-reported and, if reported, inadequately investigated according to several sources.
Rape, assault with the intention to commit rape and 'grave sexual abuse not amounting to rape' are prohibited under Sri Lankan penal law. Other sex-based crimes such as trafficking and sexual harassment are also prohibited according to the Penal Code. Marital rape is not a crime in Sri Lanka unless a judge has ordered a spousal separation. Sri Lanka is described as a sources country for women and girls (as well as men and boys) subjected to forced labour and sex trafficking abroad. Domestically, women are also reportedly subjected to sex trafficking into brothels. While Sri Lanka prohibits all forms of trafficking through an April 2006 amendment to its penal code, legal protection may not always be effective, including as a result of reported complicity on the part of police and other government officials. Internally displaced persons, war widows, and unregistered female migrants are reported to remain particularly vulnerable to human trafficking.
A number of factors have been cited in various reports as contributing to increased insecurity and vulnerability of women in the north and east of Sri Lanka. The most relevant include the following: a) large numbers of female headed households in the areas most affected by the armed conflict; b) women's weak economic position; c) high militarization, including dependency on security forces for access to detained family members; d) impunity and weak administration of justice; e) prostitution and vulnerability to trafficking in displacement or post-relocation; and f) the vulnerable position of former female LTTE cadres and war widows.
Information from different sources on the situation of women, including the CEDAW [Convention to Eliminate All Forms of Discrimination Against Women] concluding observations, indicate that state protection, both in law and in practice, is not necessarily available or accessible to all women throughout the country.
The US State Department HR Practices report (19.04.13) also states 'Human rights groups in northern districts alleged that widows of men killed in the conflict often became victims of prostitution because of their economic vulnerability.'
3.13.6 The Organisation for Economic Cooperation and Development (OECD) social institutions and gender index (SIGI) profile adds that 'The war in Sri Lanka has resulted in a rise in the number of female-headed households, particularly in the northern and eastern provinces. This has meant that an increasing number of women have become breadwinners, thus challenging the social institution of the male breadwinner in the family. However, there are a number of legal and administrative barriers facing women as heads of the household --- the legal superiority of male headed households suggests that negative attitudes towards female headed households persist. Tamil women and girls have historically been the targets of various forms of sexual assault following their arrest or detention at checkpoints. Such assaults were justified on the grounds that they or their family members were suspected members of the Tamil insurgency. Widespread sexual violence and crime has also been a serious issue in internment camps during the conflict. A major challenge to ensuring women's physical integrity in Sri Lanka is the lack of enforcement of laws, gender insensitivity within the police and judiciary and the reluctance of women to report violence. The Asian Development Bank reports that sexual harassment is trivialised and there is a culture of acceptance around violence against women.'
77. I reminded myself also of the guidance in the OGN cited earlier (3.13.7)."
61. Having done so at para 78 the judge analysed the evidence as follows:
"78. I have considered the factors outlined in the UNHCR Eligibility Guidelines in 2012 in the context of my findings concerning this appellant. She is not a former LTTE cadre or a war widow. She will not be head of a female household or a lone female but will return to her family which is headed by her father and with three brothers aged between 18 and 25. The current economic circumstances of the family are unknown but I find that this is because the appellant has not revealed her family circumstances in order to advance her claim. The past evidence suggests this was a family with financial resources judged by the entry clearance application. I accept that Jaffna, like other areas in the North and East is highly militarised. There is no suggestion that the appellant's family are, or have been, detained or displaced."
62. Ms Sane submitted that the judge had failed properly to have regard to the background evidence and, in particular, the high level of militarisation in the North and East of Sri Lanka which led to an increased risk of rape and sexual violence for Tamil women by the army. Ms Sane submitted that the judge had failed properly to apply the UNHCR Eligibility Guidelines for 2012 by setting out categories of individuals at risk in para 78 of her determination into which the appellant did not fall. However, Ms Sane submitted these were not categories at all and that the risk was broader and included the appellant. Alternatively, Ms Sane submitted that the judge's finding was irrational or perverse in the light of the background evidence.
63. In my judgment, the judge did not fall into error in concluding that there was no "real risk" of persecution or serious harm falling within Art 3 of the ECHR to the appellant by reason of gender-based violence.
64. First, in para 78, the judge did not delimit the risk to Tamil women based upon a number of risk categories, for example as a war widow or the head of a female household or a lone female. The judge correctly identified these as risk factors which had to be taken into account in assessing whether there was a "real risk" to an individual. Those factors contributed to the risk to any individual Tamil woman.
65. Secondly, as I pointed out to Ms Sane in her submissions, if she were correct as to how the judge should have understood the background evidence there would be a real risk to every Tamil woman returning to the North or East of Sri Lanka. In my judgment, the background evidence did not establish such a "real risk" to Tamil woman returning to those areas. As the judge noted, there was a generalised risk and increased risk factors existed where, for example, the individual returned as the head of a female household or as a lone female. In this appeal, the judge was entitled to take into account that the appellant would be returning with her husband to a place where she previously had family whom it had not been shown had been detained or displaced. The precise circumstances of her family were unknown but that was simply because the appellant had chosen not to reveal them. In these circumstances, it was properly open to the judge to find that this appellant had failed to establish a "real risk" of persecution or serious harm by reason of gender-based violence. On the basis of the evidence, I am unable to conclude that that finding was perverse or irrational.
66. Consequently, for these reasons, the judge did not err in law in reaching her adverse finding on the appellant's claim to be at real risk of gender-based violence as a member of a particular social group. I reject Ground 3. As a consequence, her finding on that basis of the appellant's claim stands.
Decision
67. For the reasons I have given above, the judge's decision to dismiss the appellant's appeal on asylum and humanitarian protection grounds involved the making of an error of law. That decision is set aside.
68. It was common ground between the parties that if this was my decision, the proper course was to remit the appeal to the First-tier Tribunal to remake the decision.
69. In my judgment, given the nature and extent of the fact finding required and having regard to para 7.2 of the Senior President's Practice Statement, the correct disposal of this appeal is to remit it to the First-tier Tribunal for the decision to be remade but limited to the issues of whether the appellant has established that she is at risk because of her perceived LTTE connections or as a returning woman with an illegitimate child. Fresh factual findings will have to be made on all relevant issues, including the appellant's credibility
70. The judge's decision to dismiss the appeal in respect of her claim to be at risk of gender-based persecution as a member of a particular social group stands. The Judge's findings in that regard are preserved.
71. There has been no challenge to the judge's decisions to dismiss the appellant's appeal under Arts 2, 3 and 8 of the ECHR. As a consequence, those decisions also stand.
72. The appeal is, therefore, remitted to the First-tier Tribunal for a hearing before a judge other than Judge Goodrich limited to the basis set out above.

Signed

A Grubb
Judge of the Upper Tribunal

Date 21/12/2016