Tribunal decisions

The decision

IAC-AR-AR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/06068/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 14 November 2016
On 17 November 2016

Before

UPPER TRIBUNAL JUDGE FINCH

Between

r v
(anonymity direction MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms A. Seehra of counsel, instructed by Nag Law Solicitors
For the Respondent: Mr. L. Tarlow , Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant, who was born on 19 April 1985, is a national of Sri Lanka of Tamil origin. He entered the United Kingdom as a student on 6 April 2011 and applied for asylum on 21 March 2013. His application was refused on 23 March 2015. He appealed and his appeal was dismissed the First-tier Tribunal Judge MacDonald in a decision promulgated on 20 June 2016. Upper Tribunal Judge Martins, sitting as a Judge of the First-tier Tribunal, refused permission to appeal in a decision sent out on 10 August 2016.

2. Upper Tribunal Judge McWilliam granted permission to appeal on 20 September 2016 on the basis that, if the First-tier Tribunal Judge had accepted that the Appellant was on bail and still of interest to the Sri Lankan authorities, he should have given adequate reasons for finding that the Appellant was not at risk of persecution on return to Sri Lanka.

ERROR OF LAW HEARING

3. At the hearing counsel for the Appellant relied on the fact that the First-tier Tribunal Judge had not taken into account the fact that the Appellant was on bail when he left Sri Lanka in a context when he had found that the Appellant was a member of the LTTE, who had been detained on three occasions in the past. She also relied on the fact that the First-tier Tribunal Judge had not taken the Appellant's family's political profile into account when he reached a decision as to risk on return.

4. The Home Office Presenting Officer then replied and stated that he relied on the reply. He also relied on the fact that the Appellant had returned to Sri Lanka from India having previously breached the terms of his bail. He asserted that, even if the Appellant was still on bail, he could resolve this through bribery. He also submitted that it was open to the First-tier Tribunal Judge to find that the Appellant did not pose a threat to the unitary nature of the Sri Lankan state.

FINDINGS

5. The First-tier Tribunal Judge accepted in paragraph 95 of his decision that the Appellant had been a member of the LTTE and in paragraph 96 he accepted that the Appellant was engaged in the production of media footage. He also implicitly accepted in the latter paragraph that the Appellant had been arrested on a ship going to India with cameras and footage to be used abroad by the LTTE. In addition, in paragraph 111 he implicitly accepted that the Appellant breached his bail conditions when he left Sri Lanka, when he said that "this would be the second time that he has breached these conditions and, as was demonstrated on this return from India and his arrest, he was subsequently released again on bail". Furthermore, the First-tier Tribunal Judge appeared to accept that the authorities had been asking his family where he was.

6. As a consequence, the First-tier Tribunal Judge should have considered whether the Appellant would be at risk of persecution, if removed to Sri Lanka as a former LTTE member who had breached his bail conditions and who was still being looked for by the authorities. In particular, he should have reminded himself that in GJ & Others (post-civil war: returnees) CG [2013] UKUT 00319 (IAC) the Upper Tribunal found that "if a person is detained by the Sri Lanka security services there remains a real risk of ill-treatment or harm requiring international protection". The failure to do so amounted to an arguable error of law.

7. In his grounds of appeal the Appellant also submitted that the First-tier Tribunal Judge should have considered the evidence about his brothers' activities along with the other evidence before reaching a decision about his credibility. The appeal had been adjourned on a previous hearing for the Respondent to consider the provenance of these documents. However, apart from making a few preliminary enquiries, she had not taken any action. In this context, there was no basis upon which to doubt that one of the Appellant's brothers was subject to an EUROPOL warrant procured by the Sri Lankan government and another had been granted asylum in Norway.

8. I accept that this evidence is not determinative of the Appellant's appeal but it is certainly relevant evidence which should have been considered before the First-tier Tribunal Judge reached a negative decision on the Appellant's appeal in paragraphs 116 and 117 of his decision. This was the proper approach, as confirmed in Karanakaran v Secretary of State for the Home Department [2000] EWCA Civ 11

9. I do not find that there is merit in the ground, which asserts that the Appellant would be treated more harshly than his superior, Nanthagapan, if returned to Sri Lanka. There was no evidence on which to base this assertion, which amounted to speculation.

10. In my view the ground relating to the No Fire Zone programme was also speculative.

11. However, for the reasons given above in paragraphs 2- 8, I am satisfied that First-tier Tribunal Judge MacDonald did make errors of law in his decision and reasons.

DECISION

11. The Appellant's appeal is allowed.

DIRECTIONS

12. The appeal is remitted to the First-tier Tribunal for a hearing before a First-tier Tribunal Judge, other than First-tier Tribunal Judge MacDonald.

13. The following findings of fact are to be preserved:

(i) The Appellant was a member of the LTTE.
(ii) He was engaged in the production of media footage for the LTTE.
(iii) He was arrested and detained three times in the past by the Sri Lankan authorities.
(iv) He was on bail when he left Sri Lanka on the last occasion.
(v) The Sri Lankan authorities continue to ask his family about his whereabouts.

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 him or any member of their 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.

Nadine Finch

Signed Date 14 November 2016
Upper Tribunal Judge Finch