Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/06517/2014

THE IMMIGRATION ACTS

Heard at : IAC Yarl’s Wood
Determination Promulgated
On : 8 October 2014
9 October 2014

Before

UPPER TRIBUNAL JUDGE KEBEDE

Between

M A
(anonymity direction)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Ms H Short, instructed by Inayat Solicitors
For the Respondent: Mr S Genovese, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. This appeal, in the fast track system, comes before me following the grant of permission to appeal on 1 October 2014.
2. The appellant is a citizen of Sri Lanka, born on 8 August 1978. He arrived in the United Kingdom on 4 February 2011 with his wife who had been issued with a Tier 4 student visa. He was in possession of a Tier 4 student dependant visa, valid until 25 May 2013. He submitted four EEA residence applications with his wife as dependants of her German cousin, on 4 and 24 July 2013, 16 December 2013 and 12 May 2014, but all were refused, the last in June 2014. He was encountered with his wife on 31 July 2014 during an enforcement visit and they were served with papers as overstayers and were detained pending removal, which was set for 12 August 2014. The removal directions, issued on 5 August 2014, were cancelled when he claimed asylum the following day, with his wife as his dependant. He was interviewed about his claim on 27 August 2014. His claim was refused on 29 August 2014 and a decision was made to remove him and his wife to Sri Lanka. He appealed against that decision.
3. The basis of the appellant’s claim, as stated at his interview, is as follows. His problems began in August 2007 when he had a fight with Anura, a bodyguard and relative of a member of parliament Mahipala Herath, when Anura refused to pay for a laptop in his (the appellant’s) shop. Anura was paralysed as a result of the appellant hitting him with a metal bar and has since been in a wheelchair. Since that incident Anura has been seeking revenge and was incidental in him being arrested following the fight and charged with giving shelter to the LTTE. He was kicked and hit by a policeman and still had scars from that. He was detained for two days and released only when his father paid some money. He went into hiding in Kurunagalla for eight months because Aruna’s people were looking for him and then he left Sri Lanka and in 2008 went to Saudi Arabia where he stayed for a year. He returned to Sri Lanka to get married and he married his wife in October 2009. In March 2010 he was spotted by Mahipala’s people whilst driving his car with his wife and father-in-law and was chased by them until he had to stop the car and run away. The men took his wife and her father out of the car and tore his wife’s clothing but then ran away when people came to assist. He hid in a Muslim’s house and then returned to his wife’s house and left for Negambo that night. He remained in hiding there in his sister’s house until he left Sri Lanka and came to the United Kingdom on 4 February 2011. In the meantime, he leased his shop to Mohammed Riyaz in November 2010. In 2012 his father told him that an arrest warrant had been issued against him. He found out that on 3 January 2012 the police had found weapons in his shop and Mohammed Riyaz had been tortured and confessed that he was involved. There was also an arrest warrant issued in 2007 for employing Tamil staff and supplying weapons and for involvement in a bomb blast. The appellant feared being killed or tortured if he returned to Sri Lanka because of the fabricated charges against him.
4. Further submissions were made on behalf of the appellant on 28 August 2014, requesting that his case be transferred out of fast track and including a letter from his solicitor in Sri Lanka, a lease agreement for his shop and an arrest warrant dated 21 March 2012.
5. The respondent, in refusing the appellant’s application, considered that it was suitable to remain in fast track. It was not accepted that two arrest warrants had been issued against him in 2007 and 2012. The respondent noted that the letter from the appellant’s solicitor made no mention of an arrest warrant dated 2007 or of a bomb blast and noted inconsistencies between the information in the affidavit and that given by the appellant at his interview. It was considered that the appellant would not have been able to leave Sri Lanka in September 2008 and return in September 2009 as well as taking a trip to India and returning in December 2010 and then leaving in February 2011, without being stopped or detained, if he had been involved in such a serious incident. The respondent attached little weight to the documents produced by the appellant and rejected his account of being detained and tortured. It was considered that the scar on his arm could have been caused in any number of ways. It was not accepted that he was at risk on return to Sri Lanka or that his removal would breach his human rights.
6. The appellant’s appeal was initially listed for 9 September 2014 but was adjourned by First-tier Judge Grant at the appellant’s request in order for him to obtain a newspaper article from a lawyer in Sri Lanka verifying the existence of an arrest warrant and to obtain a better translation of a document headed “Message Form”. The adjournment request was also made on the basis that the appellant needed to obtain a medical report to confirm his account of torture but the request was not granted on that basis, although the judge advised the appellant that the grant of an adjournment on the other grounds presented him with an opportunity to obtain a report.
7. A further adjournment request, together with a request for the case to be taken out of fast track, was made in writing on 19 September 2014, but was refused. The appeal then came before First-tier Tribunal Judge Grant on 23 September 2014. The requests were renewed on the basis that a medical report was required to assess the appellant’s scars and to evaluate the level of depression suffered by him and his wife and also on the basis that the appellant wished to pursue the application made under the EEA Regulations but did not have all the relevant documentation to hand. Both requests were refused. With regard to the recent EEA application, the judge noted that the refusal letter had been returned undelivered and therefore considered that there was no appeal before him on that basis.
8. Judge Grant did not accept the appellant’s account. He considered that the letter from the appellant’s lawyer had been written simply to assist the appellant and that the appellant and his wife had made up the incident in March 2010. He did not accept that an arrest warrant had been issued in March 2012. He found that the appellant and his wife had fabricated their claim, including their account of having mental health problems. He did not accept that they fell within any of the risk factors in GJ (post-civil war: returnees) Sri Lanka CG [2013] UKUT 319. He accordingly dismissed the appeal on asylum, humanitarian protection and human rights grounds.
9. Permission was sought on three grounds: that the judge had erred by failing to transfer the case out of fast track to enable the appellant to obtain medical evidence and to advance his EEA appeal; that he had erred in his approach to the medical evidence and the appellant’s scarring; and that he had erred in his approach to the evidence from the solicitor in Sri Lanka and that his approach was contrary to the findings in PJ v Secretary of State for the Home Department [2014] EWCA Civ 1011.
10. Permission was granted on the first and third grounds.
Appeal hearing and submissions
11. The appeal came before me on 8 October 2014. The parties made submissions on the error of law.
12. Ms Short expanded upon the grounds of appeal. With regard to the first ground she submitted that the judge’s decision to keep the case within fast track had deprived the appellant of a fair hearing. He had been deprived of an opportunity to obtain relevant evidence, namely medical evidence relating to his scars and to his and his wife’s mental health and they had been unable to advance their claim under the EEA regulations. The second ground, for which permission had not been granted, was in any event linked to the first ground. With regard to the third ground the judge erred by finding that the Sri Lankan lawyer, Abdul Marsook, was a “hired gun”, as there were no grounds for so concluding and furthermore such a conclusion was inconsistent with the approach in PJ which required a detailed explanation for rejecting such evidence.
13. Mr Genovese submitted that there was no error of law. Judge Grant had considered the EEA application and properly concluded that there was no appealable decision. He had dealt fairly with the application to take the case out of fast track and he was entitled to conclude that a medical report would not have assisted the appellant’s case in view of the serious credibility issues. The circumstances in the appellant’s case were entirely different to those in PJ and the judge gave detailed reasons for rejecting the letter from the lawyer and the accompanying documentary evidence.
14. Ms Short reiterated the points previously made, submitting that the judge was wrong to conclude that a medical report would have made no difference.
15. I advised the parties that, in my view, there was no error of law in the judge’s decision. My reasons for so concluding are as follows.
Consideration and findings.
16. The appellant relies upon the judgment of Mr Justice Ousley in the Detention Action case, Detention Action v Secretary of State for the Home Department [2014] EWHC 2245, in asserting that Judge Grant had erred in law by refusing to take his case out of fast track. However it seems to me that the judge’s decision in that respect did not give rise to any unfairness. It is plain from his detailed observations at paragraphs 7 to 13 that he gave careful consideration to the request made before him and provided cogent reasons for refusing the request, both with regard to a transfer out of fast track and adjourning the proceedings in general. It is relevant to note that an adjournment had already been granted to the appellant to obtain further documentation from Sri Lanka. Furthermore, when granting that adjournment, the judge specifically stated that he found no grounds for adjourning the proceedings to await a medical report but that the appellant was in any event being given further time to do so. The appellant had therefore had plenty of opportunity to obtain and produce such evidence.
17. When considering the issue of further medical evidence, the judge took into account the letter from Medical Justice indicating that they would offer the appellant an appointment, but at paragraph 8 he properly noted the limited assistance provided by that offer. He went on to consider the assistance that could in any event be offered by a medical report and properly concluded that there was none, for reasons later explained at paragraph 46. In that paragraph he concluded that a doctor would find it difficult to state that the appellant’s scarring was consistent with his account of its source. That reasoning was in itself challenged in the grounds and Judge Ievins properly refused permission in that respect. Clearly the judge was entitled to consider that the conclusions a medical expert could reach on the appellant’s scarring were unlikely to assist the appellant’s case, given the nature and age of the scars. It was not disputed that the scars existed and the judge was therefore able to take that into account when assessing credibility in the round. Likewise he was able to take into account the rule 35 report which he properly observed at paragraph 20 went no further than confirming that the appellant had claimed to have been tortured. With regard to a report addressing the appellants’ mental health problems, the judge properly noted, in particular with respect to the appellant’s wife, that there had been no previous concerns expressed at the relevant times about such problems. The judge was therefore entitled to consider that there was no proper basis upon which to conclude that a psychiatric or other such report was justified or necessary and clearly the request made on that basis was no more than speculation. The judge, in any event, gave careful consideration at paragraphs 44 and 45 to the assertions made with respect to the appellant and his wife suffering from mental health problems.
18. I find no merit in the assertion that the appellant and his wife had been unfairly deprived of an opportunity to advance their EEA claim in a one-stop appeal. The fact that they were unprepared to present the grounds and that the EEA sponsor was not present was plainly not a satisfactory basis for the judge to have been expected to adjourn the proceedings. As Mr Genovese submitted, other than the challenge to detention at paragraphs 8 and 29, no such grounds had been raised in the notice of appeal before the First-tier Tribunal and it is also relevant to note that the previous adjournment request successfully made on 9 September 2014 made no reference to grounds of appeal being pursued under the EEA regulations. Neither did the subsequent written adjournment request refer to such grounds. It is also relevant to note that the appellant had not sought to appeal any of the previous decisions refusing his applications under the regulations. The judge made some adverse observations at paragraphs 45 and 56 but otherwise properly found that there was nothing before him to determine.
19. In the circumstances it seems to me that the judge was entitled, for the reasons fully and properly given and having applied the relevant tests, to refuse to adjourn the proceedings and to refuse to transfer the case out of fast track and that there was no unfairness arising out of his decision. The appellant was given a full opportunity to present his case before the judge, having had the benefit of a previous adjournment and a further period of time to obtain supporting evidence. The case was not a complex one and was, and remains, appropriately placed in the fast track system.
20. The second ground of appeal challenges the judge’s approach to the documentary evidence from Sri Lanka, in particular the letter dated 19 August 2014 from Abdul Marsook, the appellant’s lawyer. It is asserted that his approach was inconsistent with the findings in PJ. However I do not agree. I find myself in agreement with Mr Genovese in concluding that the circumstances in the appellant’s case are entirely different from those in PJ. That case involved letters from two independent lawyers in Sri Lanka confirming the authenticity of court documents and a letter from the Magistrate of the relevant court to the Controller of Immigration and Emigration stating that the appellant PJ was to be arrested on return to Sri Lanka. The latter was found by the Court of Appeal to be a significant piece of evidence that required detailed analysis and explanation if it were not to confirm the appellant’s claim to be at risk on return. In the case of the appellant before Judge Grant, the only piece of independent evidence purporting to confirm the reliability of the police and court documents, as the judge properly recognised at paragraph 53 of his determination, was the letter from Mr Marsook. At paragraphs 48 and 53 he gave detailed reasons for finding that that letter was not reliable. The essence of the submission made on behalf of the appellant is that he was not entitled to reach such a conclusion, given the observations of the Court of Appeal in PJ. However, that is not what the Court found.
21. In PJ, Lord Justice Fulford found at paragraph 29 that:
“The involvement of lawyers does not create the rebuttable presumption that the documents they produce in this situation are reliable.”
22. Lord Justice Fulford went on to conclude at paragraph 41 as follows:
“Whilst it is undoubtedly the case that false documents are widely available in Sri Lanka, once it was established that the documents in question originated from a Sri Lankan court, a sufficient justification was required for the conclusion that the appellant does not have a well-founded fear of persecution.”
23. In effect, the judgment required there to be, in such cases, “sufficient justification” and “sufficient reason” for concluding that the documentary evidence was not reliable and that the evidence produced by such means required “detailed analysis and explanation”. In Judge Grant’s case, there clearly was a detailed analysis and such reasons were given by him.
24. At paragraph 52 he considered the police document entitled “message form” and noted that it was difficult to understand. Indeed, the document appears to refer to the arrest warrant of 21 March 2012 being recalled and cancelled, which was not part of the appellant’s claim and was not explained in any way by Mr Marsook in his letter. With respect to the arrest warrant, the judge noted that it gave no date for the commission of the alleged offence. Again, a perusal of the document confirms that it is significantly limited in its details of the alleged offence. With regard to the letter from Mr Marsook, which the appellant claims, following PJ, to be sufficient in itself to confirm the authenticity of the message form and arrest warrant, Judge Grant gave lengthy reasons for doubting its reliability. One reason, given at paragraph 48, was that the letter from Mr Marsook made no reference at all to a warrant from 2007, despite the fact that he was supposed to have told the appellant about it. Indeed the appellant referred at several points in his interview to a warrant issued at that time, at questions 27 and 51 to 59, and at question 56 clearly stated that it was his lawyer who told him about the warrant. At questions 154, 155 and 173, his evidence was that it was the same lawyer who had helped in 2007 as had assisted his father in 2012 (and thus written the letter). Another reason, given in the same paragraph, was that the letter from Mr Marsook described the appellant in different terms to those described by the appellant himself, in particular in terms of his political involvement.
25. At paragraph 53 the judge considered another piece of evidence, namely a newspaper article, which contained contradictory information to that given by the appellant at his interview and which appeared not to be genuine. Having viewed the newspaper myself, there can be no doubt that the relevant article has been pasted into the document and the judge was accordingly perfectly entitled to conclude that it was not reliable evidence and that it undermined the credibility and reliability of the other evidence and the appellant’s account as a whole.
26. There were, accordingly, detailed reasons given by Judge Grant for rejecting the documentary evidence as unreliable and, when taken together with the various other credibility concerns he addressed at length from paragraph 44 to 54, for concluding that the appellant’s entire account was fabrication. His approach to the documentary evidence, including the letter from Mr Marsook, was not inconsistent with the findings in PJ and, whilst he accepted that Mr Marsook was a genuine Sri Lankan lawyer, he was entitled to conclude that his letter did not provide a reliable account of events or a reliable confirmation of the authenticity of the documentation.
27. Accordingly it seems to me that Judge Grant was entitled to make the adverse credibility findings that he did and to reach the conclusions that he did. There was no unfairness in his approach to the proceedings or to the evidence. His decision is a careful and detailed one and the grounds disclose no errors of law therein.

DECISION
28. The making of the decision of the First-tier Tribunal did not involve an error on a point of law. I do not set aside the decision. The decision to dismiss the appeal stands.

Signed Date 8 October 2014
Upper Tribunal Judge Kebede