Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/05122/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 29 November 2016
On 30 November 2016

Before

UPPER TRIBUNAL JUDGE CANAVAN

Between

J Y
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
Anonymity was granted at an earlier stage of the proceedings because the case involves protection issues. I find that it is appropriate to continue the order. Unless and until a tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the appellant and to the respondent.

Representation:
For the appellant: Ms A. Walker, Counsel instructed by Marsh & Partners
For the respondent: Mr P. Singh, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant appealed against the respondent's decision dated 11 March 2015 to refuse a protection claim.

2. First-tier Tribunal Judge Boylan-Kemp ("the judge") dismissed the appeal in a decision promulgated on 04 March 2016. The judge heard evidence from the appellant and found him to be a credible witness. He was able to give detailed answers to questions and was able to provide plausible and reasonable explanations for any apparent discrepancies in his evidence [46]. The judge accepted on the low standard of proof that the appellant had been a member of the Sea Tigers [52]. His evidence was that he was forcibly recruited. She also accepted his account of his detention and torture in May 2009 [53]. The judge also accepted the appellant's account of his escape from detention in July 2010 following payment of a bribe [54].

3. Having accepted that the appellant's account of past persecution the judge turned to consider risk on return with reference to the relevant country guidance decision in GJ and others (post-civil war; returnees) Sri Lanka CG [2013] UKUT 00319. She noted the submissions made by both parties on the issue, which included the appellant's reliance on reports from his family members to say that the authorities had been to their house to make enquiries about his whereabouts [62]. Earlier in the decision the judge also noted the appellant's evidence that the Sri Lankan authorities were still interested in him [23]. The judge's conclusions on risk on return were as follows:

"63. Upon consideration of these submissions in light of the evidence provided by the appellant to show his involvement with the LTTE and his attendance at anti-government demonstrations, and upon consideration of the relevant authorities, I find that I do not accept that someone of his level of involvement in the LTTE would now be perceived to be at risk to the government upon his return. Therefore, I find that I am not persuaded, even to the lower standard, that the appellant has proven that due to his imputed political opinion there would be a real risk to him of ill-treatment amounting to persecution. Consequently, I find that the appellant does not warrant a grant of asylum under the Refugee Convention."

4. The appellant appeals on the ground that the First-tier Tribunal failed to make findings in relation to material evidence, namely the letters from the appellant's mother and sister, which indicated that the appellant was still of interest to the Sri Lankan authorities.

Decision and reasons

5. At the outset of the hearing the parties agreed that the First-tier Tribunal decision involved the making of an error in relation to a point of law. Mr Singh accepted that the judge had failed to make findings with regard to evidence that was material to a proper assessment of risk on return. The parties were agreed that the Upper Tribunal could go on remake the decision without the need to hear further evidence from the appellant. It was agreed that the hearing would proceed on the basis that the judge had found the appellant to be a credible witness. The Home Office Presenting Officer on the day of the First-tier Tribunal hearing did not appear to challenge the credibility of the evidence from the appellant's family members. The judge recorded the Presenting Officer as having submitted that "the authorities have not arrested the appellant's family or issued a warrant for his arrest" and that this was therefore "indicative of the fact that the Sri Lankan authorities now hold little, if any, interest in him." [62].

6. Mr Singh accepted that, in light of the First-tier Tribunal's positive credibility findings, the appeal should proceed on the basis that there had been no challenge to the reliability of the letters from the appellant's mother and sister. In fact, his submissions went further than that. He accepted that the judge had found the appellant to be a credible witness and that there was no challenge to the evidence of his family members. He accepted that the authorities appear to be aware of the appellant's diaspora activities in the UK. In light of that evidence he said that it was difficult to argue that the appellant would not be at risk and accepted that the case may deserve to be allowed on its merits. He said that this did not set any precedent. He asked me to note that there was no evidence to show that the appellant was on a stop list.

7. The First-tier Tribunal judge accepted the appellant's account of past events. Acts of persecution must be sufficiently serious by their nature or repetition to constitute a severe violation of basic human rights or be an accumulation of various measures, which are sufficiently severe as to affect the individual in a similar manner. The past ill-treatment suffered by the appellant was undoubtedly sufficiently serious to amount to persecution.

8. The appellant says that he was captured at the end of the war but was taken for investigation by army intelligence after only a few days. He says that he was seriously ill-treated, including beatings, cigarette burns, water boarding and was subjected to various humiliating methods of 'sexual torture'. The medical evidence also identifies a gunshot wound. The appellant says that he was questioned about his activities for the LTTE and was identified by another man as a member of the LTTE. He says that the level of torture increased once he was identified as a member of the LTTE. He was asked questions about how the LTTE obtained their weapons and where they hid their weapons. He was detained for just over a year before his brother in law secured his release through payment of a bribe.

9. Article 4(4) of the Qualification Directive (2004/83/EC), reflected in paragraph 339K of the immigration rules, makes clear that the fact that a person has already been subject to persecution or serious harm or to direct threats of such persecution or 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.

10. The appellant fled the country with the assistance of an agent and spent a period of time living illegally in India before travelling to the UK via Bahrain and France. He says that he arrived in the UK August 2012 and claimed asylum shortly after. He does not claim to be a particularly active member of the Tamil diaspora in the UK, but says that he has attended three or four events organised by the Transnational Government of Tamil Eelam (TGTE) including Commemoration Day on 27 November 2015.

11. The appellant produced various letters from family members in Sri Lanka in support of the appeal. A letter from his mother dated 28 August 2014 told him that men from military intelligence had come to search the house and asked for him to report to them. A letter dated 18 February 2015 informed him that the CID had made enquiries with her and her neighbours regarding his whereabouts. In other correspondence dated 26 October 2015 his mother reported that the CID kept visiting their house to ask whether they had any contact with him. They asked her to attend the CID office to answer questions. In a more recent letter dated 10 January 2016 she told the appellant that the CID came back in the New Year and accused her of lying about what contact she had with him. In a letter dated 23 January 2016, his sister, who lives with his mother, wrote to say that the CID visited the house again and said that they had received information that he was working for the LTTE in London.

12. Whilst I cannot discount the possibility that the letters have been written by members of the appellant's family in order to provide evidence to assist his asylum appeal, I take into account the fact that the appellant was found to be a credible witness. The Home Office Presenting Officer at the First-tier Tribunal hearing, having heard him give evidence, did not appear to dispute the content of the letters but argued that they did not show that the appellant was of sufficient interest to give rise to a risk on return.

13. I find that the appellant's claim that the authorities have continued to show an interest in him is plausible in light of the facts of this particular case and in the context of the background evidence.

14. Firstly, the appellant was found to be a credible witness. The reliability of the letters from his mother and sister can be viewed in that context. Secondly, it is plausible that someone who has been released through irregular means on payment of a bribe might still be of interest to the authorities. In GJ (Sri Lanka) the Tribunal considered evidence from a Sri Lankan barrister who stated that it was common for people to be able to secure release on payment of a bribe, but it did not necessarily indicate that the authorities no longer had an interest in the person. Such cases would normally be recorded as "escaped from detention". Absconder action would be commenced and the detainee's details would be passed to the National Intelligence Bureau [146 GJ (Sri Lanka)]. The Tribunal considered his evidence to be "useful and reliable" [275]. Thirdly, the respondent's most recent Country Information and Guidance (CIG) report on Sri Lanka dated August 2016 outlines evidence from the International Truth and Justice Project (ITJP), an organisation seeking to support accountability for human rights abuses in Sri Lanka, which stated that Tamils with tenuous links to the LTTE or low-level cadres continue to be targeted, along with their families [6.6.3 CIG]. In light of the above evidence I am satisfied that the letters from the appellant's family members can be relied upon as evidence to support his claim that the authorities continued to have an ongoing interest in him.

15. It seems that the guidance given by the Tribunal in GJ (Sri Lanka) if often misapplied. The fact that country guidance identifies certain risk categories does not obviate a judicial decision maker from the need to give anxious scrutiny to the particular facts of a case based on the evidence available at the date of the hearing. The mere level of diaspora activity is not the touchstone for an assessment of risk on return. The central question is whether the Sri Lankan authorities are likely to view a person as someone who is perceived to be a threat to the integrity of Sri Lanka as a single state. The assessment of whether a particular person's profile will give rise to that perception will depend on the individual circumstances of each case.

16. In this case I find that the following factors, when considered as a whole, are sufficient to give rise to a real risk on return:

(i) It is accepted that the appellant has suffered past-persecution as a result of his previous forced recruitment and involvement with the LTTE Sea Tigers.

(ii) The appellant was not detained in a rehabilitation camp, but was questioned by military intelligence about his activities for the LTTE. He was released through irregular means on payment of a bribe. The background evidence suggests that this is likely to be recorded as an escape from detention and that his details are likely to have been passed on to the National Intelligence Bureau.

(iii) The authorities periodically question the appellant's family and neighbours about his whereabouts. The more recent correspondence from the appellant's sister suggests that the authorities suspect that the appellant is working for the LTTE in London.

(iv) The background evidence outlined in the most recent CIG report shows that the authorities continue to monitor activities in the Tamil diaspora in the UK [2.3.3 & 6.6.8]. The Tribunal in GJ (Sri Lanka) recognised that the Sri Lankan authorities conducted an intelligence led approach, which included monitoring activities in the UK.

(v) Although the appellant's activities in the UK have been limited, it is notable that he has been associated with the TGTE, an organisation that was proscribed by the Sri Lanka authorities in 2014. The level of his involvement is arguably less relevant in circumstances where an organisation has been deemed by the Sri Lankan authorities as one that presents a present risk to the unitary Sri Lankan state. Association with such an organisation is likely to give rise to the adverse attention of the Sri Lankan authorities.

(vi) The background evidence shows that the authorities take a particular interest in Tamils who are returning from abroad. The CIG sets out evidence from the Immigration and Refugee Board of Canada, which reported that individuals returning from abroad are particularly subject to screening. The ITJP reported that a security force insider testified that military intelligence officials from Joseph Camp were actively looking for Tamils returning from abroad in order to interrogate them with the intention of detaining and torturing them [6.5.2]. While it is difficult to assess the reliability of an unnamed source, the information is consistent with other evidence that shows that the Sri Lankan authorities continue to intimidate, harass, detain and torture those who are perceived to support the LTTE [2.3.8 & 6.1.2].

(vii) While there is no direct evidence to suggest that the appellant is likely to be on a 'stop list', the evidence shows that it is likely that he would be subject to intensive questioning on return, at which point his background is likely to become known to the authorities.

(viii) For these reasons, I am satisfied that there are no good reasons to consider that the past persecution that the appellant has already suffered would not be repeated. The evidence shows on the low standard of proof that the authorities are still likely to have an active interest in him and would perceive him to be someone who continues to pose a threat to the unitary Sri Lankan state.

17. I conclude that the First-tier Tribunal decision involved the making of an error on a point of law in relation to the assessment of risk on return. For the reasons given above I remake the decision and conclude that the appellant continues to have a well-founded fear of persecution for reasons of his actual or attributed political opinion. The appellant's removal would breach the United Kingdom's obligations under the Refugee Convention.

DECISION

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

I remake the decision and ALLOW the appeal

Signed Date 30 November 2016
Upper Tribunal Judge Canavan