Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: AA/07668/2015
AA/07734/2015
AA/07735/2015

THE IMMIGRATION ACTS

Heard at Field House, London Decision & Reasons Promulgated
On the 17th February 2017 On the 2nd March 2017

Before:
DEPUTY UPPER TRIBUNAL JUDGE MCGINTY
Between:
MR P.R.
MRS N.M.
MASTER C.R.
(Anonymity Direction made)
Appellants
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr Turner (Counsel)
For the Respondent: Mr Staunton (Home Office Presenting Officer)
DECISION AND REASONS
1. This is the Appellants’ appeal against the decision of Designated First-tier Tribunal Judge McCarthy promulgated on the 27th October 2016, in which he dismissed the Appellants’ claims for asylum, humanitarian protection and on Human Rights grounds.
2. The Appellants are citizens of Sri Lanka. The First and Second Appellants are married and are the parents of the Third Appellant.
3. The Appellants formally claimed asylum on the 24th October 2014, and that application for asylum was rejected by the Respondent in a decision dated the 23rd April 2015. The Appellants sought to appeal against that decision and initially, the appeal was heard by First-tier Tribunal Judge Parks on the 22nd February 2016 who dismissed the appeals in a decision dated the 8th March 2016. The Appellants were granted permission to appeal and on the 6th June 2016, Deputy Upper Tribunal Judge Zucker allowed the Appellants’ appeal to the extent that he set aside Judge Parks’ decision and ordered the appeals to be heard afresh by a differently constituted First-tier Tribunal. It was on that basis that the appeal came before Designated First-tier Tribunal Judge McCarthy sitting at Birmingham, Sheldon Court on the 7th October 2016.
4. In his decision, Judge McCarthy dismissed the cross-complaints raised by both parties, as to whether or not the investigation made by the respective parties into the three arrest warrants which were said to have been issued against the First Appellant would in itself put the Appellants at risk upon return. He found at [31] that from the evidence provided by the Home Office there was nothing by which the Sri Lankan authorities could link the Appellants to an asylum application in the UK and that although a mere enquiry could result in the Sri Lankan authorities wondering why such an enquiry was made, the British High Commission’s generic letter of the 2nd November 2015 indicated that such enquiries were not unusual. He further found that it was otiose that the Appellants’ own attorney would have conducted himself in such a way as to ensure that no undue attention was brought to the Appellants.
5. Judge McCarthy went on to find that the Respondent had not established that the arrest warrants and the court papers were fake, but thereafter, went on to find that the correspondence from Mr Maguraajah was insufficient to establish that the arrest warrants and associated court documents produced by the Appellants were reliable evidence and properly considered that the reliability of those arrest warrants and court documents could only be determined in line with the credibility of the Appellants’ other evidence.
6. In assessing the Appellants’ credibility, Designated First-tier Tribunal Judge McCarthy accepted that the Appellants did not need to claim asylum up to April 2014 because they did not fear persecution before that point, but found that the Appellants did not in fact seek asylum until the end of October 2014, a delay of nearly 6 months, and that they had not established that there was not a good reason for them failing to claim asylum at the earliest opportunity.
7. Designated First-tier Tribunal Judge McCarthy found that the First Appellant had been vague in respect of his account of his relationship with the Tamil woman who asked him to provide accommodation for a Tamil man at his home and did not accept that account, and therefore did not accept that as a result of having allegedly provided accommodation to this man between the 29th April 2010 and the 18th May 2010, that they came to the adverse attention of the Sri Lankan authorities because of this man’s purported links to terrorism. He therefore did not accept that the First Appellant was taken for questioning on the 22nd May 2010 and then released on condition of his father paying a bribe, and that subsequently the First Appellant was arrested again on the 15th April 2014 and detained for 2 weeks, during which time he was purportedly questioned about the man who stayed with them and beaten during his detention and that bail was secured through a Sri Lankan solicitor on condition of a surety and reporting conditions. The Learned First-tier Tribunal Judge therefore did not accept the Appellants were reasonably likely to encounter persecution or serious harm upon return to Sri Lanka and therefore dismissed their appeals.
8. The Appellants sought to appeal against that decision and permission to appeal was initially refused by Designated Judge of the First-tier Tribunal Murray on the 17th November 2016. The Appellants then submitted renewed grounds for permission to appeal dated the 2nd December 2016, and permission to appeal was then granted by Upper Tribunal Judge Smith on the 10th January 2017, who found that it was arguable that the Learned First-tier Tribunal Judge, having rejected both parties’ evidence as to the reliability of the court documents had failed to explain his reasons for deciding to reject them and failed to those into account when assessing the credibility of the claim as a whole.
9. Upper Tribunal Judge Smith further found that it was arguable that in relation to the credibility of the Appellants, the Judge had erred by failing to makes findings in relation to the core elements of the claim, particularly in relation to the events of 2014. She stated that while the other individual criticisms within each ground were weaker, she did not limit the grant of permission to appeal, and therefore, permission to appeal was granted on all grounds.
10. I have fully taken account of both the original Grounds of Appeal and the renewed grounds for permission to appeal, together with all of the documentation in the case including the decision of Designated First-tier Tribunal Judge McCarthy, and all of the documentation within the bundles, that was before Judge McCarthy, in reaching my decision. I have also fully taken account of the oral submissions by both parties at the appeal hearing, which is fully recorded within the record of proceedings.
11. In his oral submissions to the Upper Tribunal, Mr Turner on behalf of the Appellants sought to argue that as a result of the Secretary of State sending the warrants to the Terrorist Investigation Division, through the British High Commission in Sri Lanka, in order to prepare the document verification report dated the 15th October 2015, that this in itself would place the Appellants at risk upon return. Mr Staunton quite properly noted on behalf of the Respondent that that had not been argued as a ground of appeal and was not a ground upon which permission to appeal was granted, and therefore I do not consider or place any weight upon that argument in reaching my decision.
12. In respect of the first pleaded ground of appeal within the renewed Grounds of Appeal, it is sought to be argued that Designated First-tier Tribunal Judge McCarthy materially erred in his consideration of the documentary evidence in respect of the arrest warrants and court documentation, it is argued that the Judge failed to properly consider the court documents and the arrest warrants and to consider whether or not they were internally or externally consistent with the claim given that the Country Guidance demonstrated that if there was an outstanding court warrant or arrest warrant an individual would be at risk. It was argued that there was insufficient consideration of the court documents and arrest warrants submitted. Mr Turner in his oral submissions, sought to elaborate and expand upon that pleaded ground, and argued that not only was there evidence from an attorney at law Mr Raatnam Maguraajah, contained within the Appellants’ supplemental bundle, but in addition, within the original bundle, there is also evidence from a different attorney at law Mr Udena Gunasekera who at page 104 of the original bundle produced a letter saying that he was an attorney of law who had appeared at the Colombo Chief Magistrates’ Court on behalf of the First Appellant in respect of case number B-5455/01/14 and that he had sent the documents of the B report and translations and that he will send the originals out by post as soon as possible. That letter was dated the 31st March 2015. Thereafter, within the original bundle was said to be records of the investigation of an offence sent by the Sri Lankan police to the Magistrates’ Court, in respect of an accusation that the first Appellant had helped and supported terrorist activities in connection with providing lodging of an LTTE terrorist. At page 110 of the original bundle, there was also the translation of what was said to be a document from the Magistrates’ Court which indicated that Mr Gunasekera, Attorney at Law, had attended at the court to request the first Appellant’s release on bail and that he had been released on bail with a personal bond on a sum of 500,000 Rupees with reporting every Sunday at 12:00 p.m. to the Colombo terrorist investigation unit.
13. At [48] of his decision, Designated First-tier Tribunal Judge McCarthy stated specifically that “The First Appellant could also have obtained corroboration from the solicitor who he says helped him secure his release on bail in Sri Lanka. In cross-examination he indicated it had be Mr Maguraajah who helped him and he is therefore surprised that the letters from Mr Maguraajah are silent on this issue. The fact the Appellants have not sought such corroboration is a concern but of course does not undermine his case entirely. These merely add to my concerns about the reliability of the Appellants.”
14. Sadly, as was conceded by Mr Staunton on behalf of the Respondent, in an otherwise extremely well-structured and very well-reasoned decision, the Learned First-tier Tribunal Judge has seemingly failed to take account of the letter from the second attorney involved with the Appellant’s case in Sri Lanka, Mr Gunasekera, and his letter dated the 31st March 2015, in which he has stated specifically he appeared at the Colombo Chief Magistrates’ Court in respect of the case number B/5455/01/14 and the supporting documentation that Mr Gunasekera had provided including what is said to be evidence from the Court showing that Mr Gunasekera appeared at the bail hearing, and secured bail for the Appellant conditional upon the production of a personal bond and reporting conditions. Mr Staunton conceded that that evidence had not seemingly been taken account of by the Learned First-tier Tribunal Judge when stating that the First Appellant could have obtained corroboration from a solicitor who he says helped him secure his release on bail in Sri Lanka. Although in that regard I do bear in mind that Designated First-tier Tribunal Judge McCarthy indicated that in cross-examination the Appellant had said that it was Mr Maguraajah who had helped him and that the letters from Mr Maguraajah were silent on the issue, given that there was evidence that it was a different attorney Mr Gunasekera who actually attended at the court hearing and obtained bail, that clearly was relevant evidence that should have been considered and analysed by the Learned First-tier Tribunal Judge, when considering whether or not the Appellant’s accounts of the him being arrested, detained and beaten in 2014 were credible. There is sadly, no consideration of the letter from Mr Gunasekera, as opposed to the correspondence from Mr Maguraajah, which Designated First-tier Tribunal Judge McCarthy clearly did take into account and had properly analysed.
15. I bear in mind as was stated by the Court of Appeal in the case of CA v Secretary of State for the Home Department [2004] EWCA Civ 1165, that any error of law has to be material and that as and until a material error of law has been identified, it is not open to the Upper Tribunal to overturn a First-tier Tribunal Judge’s decision. As was stated by the Court of Appeal in the case of R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982, the Court of Appeal stated that in determining whether or not an error was material, errors of law are immaterial if they would not have made a difference to the outcome of the matter. In this regard, I do accept and find that First-tier Tribunal Judge McCarthy was in error in stating that there was no corroboration from the solicitor who he says had helped secure his release on bail in Sri Lanka, and that the documentation in that regard was contained within the Appellant’s bundle and that the Judge had thereby failed to take account of relevant and material evidence on that issue which was before him. I do therefore find that that is a material error of law, and that given that the credibility of the Appellants was assessed holistically by Judge McCarthy, I cannot say that the decision reached would necessarily have been the same had that evidence been properly taken into account and that it would have made no difference to the outcome of the matter, as whether or not there were pending court proceedings against the Appellant in Sri Lanka was a material issue in the case. As was stated by the Court of Appeal in the case of PJ (Sri Lanka) v Secretary of State for the Home Department [2014] EWCA Civ 1011, if it is established that documents originate from a Sri Lankan court, that sufficient justification is required for a conclusion that the Appellant does not have a well-founded fear of persecution if the court documents, as in PJ, indicated that the Appellant was to be arrested because of his resultant links with the LTTE and their activities.
16. Although within the remaining Grounds of Appeal under ground 2 and the general criticisms made therein in respect of the credibility findings, it is argued that the First-tier Tribunal Judge did not properly consider the evidence of the Appellant’s wife, the Second Appellant, it is in fact clear that Designated First-tier Tribunal Judge McCarthy had properly considered the evidence given by the Second Appellant, and specifically refers to having considered her witness statement at [37] and taken account of her evidence when assessing credibility. Although it is further argued that he failed to take account of the evidence given by the First Appellant’s father, Designated First-tier Tribunal Judge McCarthy properly explained as to why, little weight should be attached to that evidence, in light of the finding that he had made regarding the First and Second Appellants’ credibility and his reasons in that regard were adequate and sufficient. Nor do I accept the argument raised by Mr Turner, as in support of the second ground of appeal that undue weight was placed by the Learned Designated First-tier Tribunal Judge as to the delay in the Appellants claiming asylum. That issue was more than adequately and sufficiently dealt with and explained by him.
17. However, given that there was a failure to take account of the evidence of the second attorney, Mr Gunasekera, such that there was a material error of law, when assessing the credibility of the Appellants’ claim holistically, I do find that the decision Designated First-tier Tribunal Judge McCarthy should be set aside. The appeal is to be remitted back to the First-tier Tribunal for a de novo hearing, before any First-tier Tribunal Judges other than First-tier Tribunal Judge Parks or Designated First-tier Tribunal Judge McCarthy.

Notice of Decision
The decision of Designated First-tier Tribunal Judge McCarthy does contain a material error of law and is set aside. The case is to be remitted back to the First-tier Tribunal for a de novo hearing, before any First-tier Tribunal Judges other than First-tier Tribunal Judge Parks or Designated First-tier Tribunal Judge McCarthy.

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, I make an anonymity order. Unless the Upper Tribunal or court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the Appellants. This direction applies to amongst others, all parties. Failure to comply with this direction could give rise to contempt of court proceedings. I do so such as to avoid the likelihood of serious harm arising to the Appellants from the contents of their protection claim, given that the Third Appellant is a minor and that therefore anonymity is appropriate in the circumstances.

Signed
R F McGinty
Deputy Upper Tribunal Judge McGinty Dated 17th February 2017