Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/05108/2012

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 1 August 2016
On 8 August 2016

Before

UPPER TRIBUNAL JUDGE FINCH

Between

s T
(AN anonymity direction IS MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr A Slatter, Counsel instructed by S Satha & Co
For the Respondent: Mr N Bramble, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant, who was born on [ ] 1973, is a national of Sri Lanka. She previously visited the United Kingdom between 20 July 2003 and 28 August 2003 and between 28 August 2005 and 19 February 2006. She last entered the United Kingdom on 3 March 2010 and applied for asylum on 19 March 2010. Her application was refused on 25 June 2010. She appealed on 9 July 2010 but Immigration Judge Wyman dismissed her appeal in a determination promulgated on 24 August 2010. She became appeal rights exhausted on 21 October 2010.

2. Further submissions were made on her behalf of 6 January 2011 but the Respondent decided they did not amount to a fresh claim on 16 January 2012. The Appellant's representatives sent a pre-action protocol letter to the Respondent on 9 March 2012 and on 26 March she agreed to reconsider her decision. The Respondent then refused her application for asylum for a second time on 9 May 2012.

3. The Appellant appealed but her appeal was dismissed by First-tier Tribunal Judge Black in a determination dated 2 September 2012. The Appellant applied for permission to appeal to the Upper Tribunal but permission was initially refused by First-tier Tribunal Judge Frankish on 21 September 2012. However, Upper Tribunal Judge Goldstein granted her permission to appeal on 20 November 2012. On 8 February 2013 Upper Tribunal Judge Storey found that First-tier Tribunal Judge Black had materially erred in law in her treatment of the additional documentary evidence which she had submitted after her initial appeal had been dismissed. On 14 August 2013 Upper Tribunal Judge Gleeson gave detailed directions in light of the country guidance case of GJ. There were further directions and then the case was set down.

4. The appeal came before me on 18 July 2016 but the 334 page consolidated bundle supplied to the Upper Tribunal only contained every other page and no bundle had been served on the respondents. Therefore, I had no option but to adjourn.

5. Counsel for the Appellant provided me with a complete bundle later that day. Counsel for the Appellant informed the Tribunal that in light of the report by Dr Persaud, dated 20 January 2016, she did not intend to call the Appellant. She referred to the last page of this report where Dr Persaud said that "in my opinion the client is not fit to give evidence as she appears to be suffering from two serious sets of symptoms which leads her to be distracted and confused". Therefore the hearing today proceeded on the basis of submissions from both parties. I was also informed that the Respondent did not wish to cross-examine the only other witness.

6. The Appellant submits that she would be at risk of persecution by the Sri Lankan authorities if she were removed there. I have reminded myself of the need to use the findings of any previous judge as my starting point. In this case there have been two previous hearings but the decision of First-tier Tribunal Judge Black was set aside by Upper Tribunal Judge Storey. Therefore I have considered the findings reached by Immigration Judge Wyman. She accepted the Appellant was employed as a sports officer in Sri Lanka from August 2000 and there is a copy of her contract of employment in the consolidated bundle. She also accepts the Appellant was sponsored by the Tamil Schools Sports Association to visit the United Kingdom on two occasions. In addition she accepted that when the team returned to Sri Lanka in 2003 she and other team members were invited to meet the LTTE leader, Mr. Prabakaran, and that photographs were taken of him with the team and that these photographs were used to accompany newspaper articles about the team. The Respondent's bundle also included colour photographs showing the team with the leader of the LTTE and him also presenting the Appellant with a certificate and also posing with her on their own. The bundle also contained a photograph of the Appellant receiving an award from the second in command in the female brigade of the LTTE.

7. First-tier Tribunal Judge Wyman also made a number of adverse credibility findings in relation to the Appellant. It is a crucial part of the Appellant's account that on 5 November 2008 the Magistrates' Court issued a warrant for her arrest because she had failed to attend court. There was a certified copy of this arrest warrant in the consolidated bundle. The name on the warrant was a slight misspelling of the Appellant's given name. This led First-tier Tribunal Judge Wyman to find that, as this arrest warrant was an official document, such a fundamental mistake as the spelling of an Appellant's name would not have been made. However the consolidated bundle contained an affidavit from a translator which postdates First-tier Tribunal Judge Wyman's determination. He has a degree in Tamil with Economics and Western History and was also employed as an Enquiry Officer to hold hearings in Sinhala by the government. In addition, he has worked as an interpreter and translator both in Sinhala and Tamil from March 2002. He explained that he provided the translation of the arrest warrant which was written in Sinhala. He went on to confirm that in the Sinhala alphabet the form "cha" is used and not "sa". He also confirmed that in the Tamil alphabet "sa" is used for the phonetic "cha". In addition, he notes that because the differences between the two languages and alphabets names translated from both the Tamil language and Sinhala language into English often carry different spellings because of a lack of equivalent letters and sounds in each alphabet. He also noted this is further complicated when a name in Tamil is translated into Sinhala script and then onto English script and this led to numerous different spellings of particular sounds or letters or combination of letters and could lead to there being a number of possible spellings of an appellant's name.

8. I find this to be a very persuasive explanation and one which takes proper account of the difficulties translators face when translating between languages which do not share the same alphabets and scripts to signify similar sounds. Therefore I do not find the fact that a different spelling of the Appellant's name appears on the translation into English means that the warrant was not properly issued in relation to the Appellant.

9. Immigration Judge Wyman also stated that her main reason for not accepting the arrest warrant was genuine was the fact that the Appellant had said in her oral evidence that an arrest warrant was issued if an interviewer failed to attend on three occasions. She then notes the appellant had said that she had to report to the police on a weekly basis and concludes that the warrant should have been issued around 2 August 2008, as opposed to 5 November 2008. However the consolidated bundle contains translation of a copy of the records kept of the Appellant's court appearance since she was first produced to the court on 7 May 2008. It shows that she is initially remanded into custody and was then granted bail on 4 June 2008 on the condition she report to a police station on a weekly basis and provided two sureties. She was released on bail on 11 June 2008 which is when she provided sureties which were accepted by the court.

10. There is then a record of further court appearances in connection with the offence or offences for which she had been charged. When she did not appear at one of these hearings, the third hearing, on 5 November 2008, a warrant was issued for her arrest.

11. I have considered the provenance of this court record. The Respondent has admitted that further evidence submitted by the Appellant on 6 January 2011 was mislaid. Therefore, the Appellant had no option but to submit copies of these documents on 7 September 2011.

12. There is a letter, dated 2 December 2010, from Mr Elangkumaran, the solicitor who represented the Appellant in Sri Lanka. It states that the Appellant was arrested on the mere suspicion of being a member of the LTTE and was remanded. He went on to state that she was on remand for more than one month and that he secured her release on 11 June 2008 on conditions.

13. Those representing the Appellant in these proceedings wrote to this advocate requesting further information on 23 July 2012. He replied on 12 August 2012. He confirmed that he previously obtained a certified copy of her case record at the Magistrates' Court and had forwarded it to her. He also confirmed that she was arrested and produced before the Magistrates' Court on 4 April 2008 and remanded in custody for two months. He added that she was released on bail and provided the name of one of her sureties. He also said that when he looked at the record he noted that the airport had been told to impound her passport. In order to confirm that he was indeed an attorney, the Appellant has submitted a copy of the Gazette of Democratic Socialist Republic of Sri Lanka, dated 10 August 2007, which does confirm that he is an attorney at law in that country.

14. Furthermore there is a copy of an email dated 3 October 2012 from the Appellant's UK solicitors to Anton Punithanayagam, who is also an attorney-at-law in Sri Lanka. In his letter of reply, dated 5 February 2013, he reported he had spoken with the Registrar of the relevant Magistrates' Court and checked the case record bearing the number B/203/2008. It confirmed that her lawyer had obtained bail for has, as stated, and that an arrest warrant was issued on 5 November 2008 when she did not attend court. He also confirmed that the arrest warrant was open and that the Department of Immigration and Emigration had been told to impound her passport. There was also a copy of a lawyer's directory which confirmed that he was a practising lawyer in Sri Lanka. In the light of this evidence and the low standard of proof to be applied in asylum appeals, I find that there is an arrest warrant still open in relation to the Appellant and that the Department of Immigration and Emigration had been told to impound her passport.

15. As noted by Counsel for the Appellant there is other evidence in the consolidated bundle which shows that she did attend Maaveerar Naal in London in 2010, 2011 and 2012. This is also confirmed by a witness whose credibility is not challenged by the Respondent.

16. The Appellant also asserts that she who was very active in the LTTE and, as noted above her sporting activities tied her to the LTTE leader in articles in some newspapers in the past. However, it is my view that it is the arrest warrant which is the crucial bit of evidence. When considering this evidence I have also reminded myself of the low standard of proof necessary to establish a risk of persecution in asylum appeals.

17. I also note that paragraph 356(7d) of the country guidance case of GJ & Others v Secretary of State for the Home Department (post-civil was: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) states that:

"A person whose name appears on a computerised 'stop' list accessible at the airport, comprising a list of those against whom there is an extant court order or arrest warrant. Individuals whose name appears on a 'stop' list will be stopped at the airport and handed over to the appropriate Sri Lankan authorities, in pursuance of such order or warrant"

and this sub-paragraph refers to people the country guidance case found were still currently at risk of persecution or serious harm on return to Sri Lanka.

18. I am not going to speculate about what led to her being subject to an arrest 8warrant but the evidence clearly establishes that is subject to arrest warrant and that the Department for Immigration and Emigration has been asked to impound her passport. This and the arrest warrant indicated that she is likely to be on a stop list and will, therefore, be at risk.

19. The head note to GJ and others also finds that "if a person is detained by the Sri Lankan security services there remains a real risk of ill-treatment or harm requiring international protection". If she is stopped at the airport the country guidance indicates that she will be detained by the security forces.

20. I have also taken into account the fact that Dr Persaud identifies her as somebody who is suffering from PTSD and depression and find that it is very likely that a person in that condition would find it very difficult to withstand any kind of interrogation at the airport or within Sri Lanka.

21. For the reasons given above, I also find that there is a serious risk that she would suffer serious ill-treatment for the purposes of Article 3 of the European Convention on Human Rights if removed to Sri Lanka. Therefore, I have not gone on to consider any risk of suicide; for which there was not the strongest of evidence.

Notice of Decision

The appeal is allowed under the Refugee Convention and Article 3 of the European Convention on Human Rights.

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

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

Signed Date: 8 August 2016

Nadine Finch

Upper Tribunal Judge Finch