Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: AA/07570/2013
IA/14353/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 16 February 2016
On 7 October 2016

Before

THE HONOURABLE MR JUSTICE COLLINS
DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Mr Yasinthan [G]
(anonymity direction NOT MADE)
Respondent

Representation:
For the Appellant: Mr Melvin, Home Office Presenting Officer
For the Respondent: Ms J Rothwell, Counsel instructed by A & P Solicitors

DECISION AND REASONS

1. This is an appeal by the Secretary of State against a decision of Judge Martins whereby he allowed the appeal of the respondent in relation to two adverse decisions by the Secretary of State, his decision being promulgated on 11 June last year. The two matters in issue were first a claim for asylum, the respondent being a Tamil from Sri Lanka, and the second was an application that he had made pursuant to paragraph 8 of the EEA Regulations of 2006 that he fulfilled the conditions in that paragraph which meant that he was entitled to remain because he was dependent upon his uncle, an EEA national, not only financially but also because of his health and he needed the personal care of his uncle.

2. The decision of Judge Martins is, we are bound to say, inordinately long. What he has done is to recite in great detail first the reasons why the Secretary of State decided as she did, secondly the evidence that was given before him and thirdly the submissions made both on behalf of the respondent, appellant of course as he was before him, and the Secretary of State. His conclusions were set out in eleven paragraphs at the end of his determination at paragraphs 100 to 111.

3. It adds to the burden of those who have to consider these cases if such lengthy decisions are made. It is important that sensible summaries be made. We appreciate that this may involve a greater degree of time in producing the necessary summary and making clear what the reasons are. However, before going to the detail, it is clear that the judge essentially accepted the submissions which were made on behalf of Mr [G] as opposed to those made on behalf of the Secretary of State, and thus it is possible when one adds together the record of those submissions with the reasons that he gives, which are undoubtedly relatively sparse, to see, in our judgment, sufficiently the basis upon which he concluded as he did. Having said that, however, it, in our judgment, we regret to have to say does not excuse the way in which his judgment has been put together.

4. We come now to the detail. As we say, the respondent is a Tamil from Sri Lanka. He came to this country initially as a student, having been issued with a student visa in February 2010. He did not claim asylum until June of 2013 by which time he was an overstayer, his student visa having expired in 2012. That of course was a factor relied on by the Secretary of State to show that the asylum claim was not a proper one.

5. His case was that he had joined the LTTE in 2004 and that he was involved in the intelligence and political group. He had obtained a passport in his proper name and he said that he had used this in 2006 accompanying an LTTE lieutenant to Singapore for a conference and attended meetings in Malaysia. He worked in a communication centre and he alleged that he was effectively carrying out work for the LTTE in sending them coded faxes from the office which were of use to them. He left that in 2009 and he obtained the visa but on 23 February, as he was travelling in a bus, the bus was stopped and he with two others was arrested, taken to a detention centre and was there interrogated and tortured. Importantly, he said that his back had been burnt with a hot iron and also that a drunken soldier had smashed the butt of a rifle into his face, knocking out some teeth.

6. He asserted that he had escaped from a dispensary in a hospital and he had managed to obtain via an agent an escape from Sri Lanka, which meant, as we have indicated, that in accordance with his entry clearance he could enter this country, which he did in early 2010. The dates are not precisely given in the decision.

7. In addition he said that in this country, at his uncle's behest because his uncle took the view that this would help him in his rehabilitation, he joined the TGTE, which is a Tamil organisation outside Sri Lanka and which has been proscribed there and there is certainly some indication that active members of the TGTE who are known to be such may on return to Sri Lanka suffer detention and, as the authorities make clear, anyone who is detained will be liable to be ill-treated to such an extent as breaches both the Human Rights Convention and also insofar as the Refugee Convention is concerned.

8. Now it is right to say that there were considerable matters raised by the Secretary of State which, it was said, meant that the account given by the respondent really was not a credible account and it is clear that there was considerable force in many of those points which were raised but there was medical evidence before Judge Martins which he regarded as being of considerable importance and we are not at all surprised when one considers what that evidence was. He refers to it in paragraph 103 and he states that the doctor noted and detailed the burns and was of the opinion that they were caused by long hot metal instruments. The nature of the scars suggested that the respondent had been held down and had flinched while the injuries were being inflicted. He discounted the possibility of self-infliction and examined whether they could be self-inflicted by proxy but viewed this as a remote possibility. There was also the injury to his teeth. That could have been caused in other ways. There was also the deterioration in his mental health, which was consistent with a degree of post-traumatic stress disorder.

9. In the grounds of appeal the Secretary of State has sought to attack reliance on the medical evidence on the basis that it was not clear that the medical evidence established that the respondent's condition was as claimed. There was an attack on whether the doctor was a consultant psychiatrist and whether his assessment of the mental state of the respondent was reliable and also that the report of the doctor who dealt with the scarring was not entirely clear.

10. Mr Melvin has very properly indicated that he does not seek to suggest that the medical qualifications, as it were, were not properly regarded by Judge Martins. What he submits is that the medical condition is not such as indicates that the rest of the account given by the respondent was reliable and the fact that he may have been detained and assaulted in the way that he describes does not of itself now mean that he is or will be at risk if he is returned to Sri Lanka and therefore Judge Martins was wrong to take the view that the medical evidence tipped the balance in the respondent's favour in terms of him having been involved with the LTTE. Certainly detained and tortured but not necessarily involved in the LTTE because that would go no further than that he was suspected of involvement with the LTTE.

11. However, it is there that the TGTE association becomes important because if he was detained, and in our judgment Judge Martins was entitled to decide on the medical evidence that he was, then that must have been because of suspicion of involvement with the LTTE and the fact, if it be a fact, that he escaped is of some importance as well. We say if it be a fact because that is something which the Secretary of State has regarded as implausible, that is to say the description of how he escaped, but it is not impossible and equally, as must be known, there are ways and means, particularly bribery, which can achieve leaving the country with the assistance of an agent. Accordingly it is not at all impossible. However, he was, according to his uncle, an active member of the TGTE, who had attended demonstrations and equally Judge Martins was entitled to decide that that would have drawn him to the attention of the authorities and put him at risk were he to be returned.

12. The judge depended largely upon the uncle's evidence and that was because the appellant's mental health was such that his ability to give evidence in a satisfactory manner was undoubtedly affected but it is important to note what the judge says about the uncle's evidence, the uncle having been cross-examined. We will turn to the aspect of the uncle's evidence that deals with paragraph 8 of the 2006 Regulations in due course but so far as the TGTE is concerned the uncle's evidence was that the respondent supported the TGTE, attended demonstrations, one in particular in 2014 and another at Wembley and indeed the uncle encouraged that activity because it assisted the respondent. Accordingly there was, in our judgment, sufficient evidence upon which Judge Martins was entitled to decide that he would be at risk were he to be returned to Sri Lanka. While it is true that the reasons are relatively sparse, by setting out, as we say, the submissions made on his behalf by his representative it is clear that the judge accepted essentially those submissions and thus they properly can be incorporated into the reasons that he gave for his decision.

13. We turn then to paragraph 8. That provides so far as material:

"8. (1) In these Regulations 'extended family member' means a person who is not a family member of an EEA national under Regulation 7(1)(a), (b) or (c) and who satisfies the conditions in paragraph (2), (3), (4) or (5).

(2) A person satisfies the condition in this paragraph if the person is a relative of an EEA national, his spouse or his civil partner and -

(a) the person is residing in a country other than the United Kingdom and is dependent upon the EEA national or is a member of his household;

(b) the person satisfied the condition in paragraph (a) and is accompanying the EEA national to the United Kingdom or wishes to join him there; or
(c) the person satisfied the condition in paragraph (a), has joined the EEA national in the United Kingdom and continues to be dependent upon him or to be a member of his household.

(3) A person satisfies the condition in this paragraph if the person is a relative of an EEA national or his spouse or his civil partner and, on serious health grounds, strictly requires the personal care of the EEA national his spouse or his civil partner."

14. Dealing first with 8(2), 8(2)(a) and (c) are material and 8(2) is met in four separate circumstances, that is to say the individual must have been living in the household or dependent upon the EEA national whilst he was not in the United Kingdom and then equally either be dependent upon or living in the household of the EEA national in this country and he must of course also be a relative of the EEA national.

15. There is no issue so far as two matters are concerned. First the respondent is a relative of his uncle and secondly he is living in the uncle's household in this country and has been since he came here in 2010. The issue therefore is whether he was dependent upon his uncle before he came to this country when he was in Sri Lanka. So far as that is concerned the uncle's evidence, which was accepted by Judge Martins (indeed he found that the uncle was a very good witness and a reliable witness) was that he had been providing support for the respondent.

16. He said that he had been sending money to the respondent's father for some fifteen to twenty years because they had no income. The respondent's father had retired and was involved in nothing else and therefore was solely dependent upon the uncle's income and indeed the whole family were dependent upon that income and that included the respondent. He was asked about how he had sent money and he said he had sent it via Western Union but he had not produced the documents because he did not know that they were needed but he could produce them if that was required. So the judge had evidence from the uncle that he effectively had been funding the respondent and indeed his father while the respondent was in Sri Lanka.

17. Accordingly, on that evidence the judge had decided that 8(2) was met. We should add that there were produced bank statements, passport and other documents but as a matter of fact there were no documents to show that he had been sending money to Sri Lanka and the uncle's evidence was that this was because he had not been asked for them or that he had been asked for what was his income, accommodation and evidence of relationship.

18. Our attention has been drawn to a decision of the Tribunal consisting of Mr Justice Blake and Senior Immigration Judge Storey in Moneke v Secretary of State for the Home Department [2011] UKUT 00341 (IAC), which considered paragraph 8(2). In that the Tribunal said this:

"We of course accept (and as the ECIs reflect) that dependency does not have to be 'necessary' in the sense of the Immigration Rules, that is to say an able-bodied person who chooses to rely for his essential needs on material support of the sponsor may be entitled to do so even if he could meet those needs from his or her economic activity: see SM (India). Nevertheless where, as in these cases, able-bodied people of mature years claim to have always been dependent upon remittances from a sponsor, that may invite particular close scrutiny as to why this should be the case. We note further that Article 10(2)(e) of the Citizens Directive contemplates documentary evidence. Whether dependency can ever be proved by oral testimony alone is not something that we have to decide in this case, but Article 10(2)(e) does suggest that the responsibility is on the applicant to satisfy the Secretary of State by cogent evidence that is in part documented and can be tested as to whether the level of material support, its duration and its impact upon the applicant combined together meet the material definition of dependency."

19. Article 10(2)(e) states that the document required by Member States to establish admission is a document issued by the relevant authority in the country of origin or country from which they are arriving certifying that they are dependents or members of the household of the Union citizen. One can well understand that in the case of someone such as the respondent who is fleeing the country it would be impossible or certainly exceedingly difficult to obtain a document issued by the relevant authority which establishes that there is a dependency.

20. It depends, we suppose, on what is meant in the circumstances by authority but the natural meaning of that is a body or person who has some authority recognised by the state. Be that as it may, that does not seem to us to preclude the possibility that in a given case cogent evidence which is believed even though there are no documents specifically to support it can be relied on in an individual case and that is what has happened here. The judge heard the uncle, the uncle was cross-examined, the judge took the view that he was a thoroughly impressive witness and accepted his evidence so far as dependency was concerned, and that was confirmed by the respondent.

21. In those circumstances, although we recognise that the evidence must be cogent and that in many cases, perhaps most cases, there will be a need for at least some documentary proof of the dependency we do not think that the law goes as far as to say that there cannot be a favourable decision unless there is some documentary evidence to support it. Accordingly, in our judgment, the judge was entitled to find that 8(2) had been met.

22. So far as 8(3) is concerned the question was whether he required the personal care of his uncle on serious health grounds. Again there was the uncle's evidence coupled with that of the psychiatrist which concluded, as we have already indicated, that he suffered from PTSD and also severe depression with an enduring personality change and he was a high suicide risk and the report emphasised the importance of the care provided by his uncle in looking after him. The view was taken by the judge in the light of the medical evidence that his mental health was such that he did require the care and support of his uncle and he derived considerable support and care from his uncle. The question is whether that was sufficient to entitle him to decide that he met paragraph 8(3).

23. One has to note that the word "serious" is in sub-paragraph (3) and it is not merely health grounds and equally the word "strictly" is included, that is to say he strictly required the personal care of the uncle. We are bound to say that, in our judgment, the decision of Judge Martins on this point is marginal in the sense that it seems to us that there is some doubt as to whether he really does meet the strict requirements of 8(3) but we do not need to reach a conclusion on that because, as we have said, we are satisfied that the decision that he met 8(2) was correct. So we are not persuaded by the argument of the Secretary of State that the judge was not entitled to find on the evidence that 8(3) was met but we think that it might have been necessary were we to have to decide that issue to have gone into the medical evidence in somewhat greater detail than we have had the opportunity to do but, as we say, in the circumstances that is not a vital decision so far as this appeal is concerned. As it is, for the reasons we have given this appeal is dismissed.

Notice of Decision

The appeal is dismissed on asylum grounds and on EEA grounds.

No anonymity direction is made.

Signed Date: 25th February 2016

Mr Justice Collins