Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/08301/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision Promulgated
On 22 November 2016
On 20 December 2016

Before

The Hon. Mr Justice McCloskey, President
and The Hon Mrs Justice Whipple, sitting as a Judge of the Upper Tribunal

Between

xy
(ANONYMITY DIRECTIOn made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
Appellant: Mr J Martin, instructed by Nag Law
Respondent: Mr N Bramble, Senior Home Office Presenting Officer

DECISION
Introduction
1. This is an asylum claim. An anonymity order has been made. The Appellant is referred to in this judgment as XY and should be referred to in that manner in all tribunal documents and correspondence.
2. This is an appeal against the determination of the First Tier Tribunal ("FtT") promulgated on 23 August 2016, dismissing the Appellant's appeal on asylum grounds, humanitarian protection grounds and human rights grounds. This appeal proceeds with permission granted on 19 September 2016.
3. The background to this matter is set out in the first three paragraphs of the FtT's determination, as follows:
"1. The Appellant was born on the 10th October 1979, and is a national of Sri Lanka. She entered the United Kingdom on 19th February 2011 with leave as a Tier 4 (General) Student until 31st December 2012. On 31st December 2012 she applied for further leave to remain in the same category, which was granted until 15th March 2016. On 8th April 2014 her leave was curtailed, to end on 7th June 2014, on the basis that she was no longer attending her course. The Appellant says she was never made aware of this curtailment. On 24th November 2014 she made an appointment to attend at the Asylum Screening Unit, where on 3rd December 2014 she claimed asylum. She had a screening interview that day. She had a full asylum interview on 22nd April 2015. The claim was refused by the respondent on 13th May 2015.
2. The Appellant now appeals, under Section 82(1) of the Nationality, immigration and Asylum Act 2002, against the refusal of her protection claim. In her appeal she relies on rights under the Refugee Convention and the Human Rights Convention Articles 2 and 3.
3. The Appellant's husband, Mr Sanath Arachchilage, born on 19th January 1984, and their daughter, Nethaya Serasinghe, born 15th March 2012, have been with her in the United Kingdom and were dependants on her asylum claim. Notices of appeal were also lodged on their behalf, but as dependants they do not have a right of appeal and a Duty Judge has ruled accordingly that those purported appeals were not valid."
4. The Appellant argued before the FtT , and before us, that she falls within one of the categories of persons identified by the Upper Tribunal in GJ and others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 319 (IAC) as being at real risk of persecution or at real risk of serious harm on return to Sri Lanka, The particular group, to which the Applicant says she belongs, is identified at paragraph 7(b) of the headnote to that case report, as follows:
"Journalists (whether in print or other media) or human rights activists, who, in either case, have criticised the Sri Lankan Government, in particular its human rights record, or who are associated with publications critical of the Sri Lankan Government."
5. The FtT rejected the Appellant's case that she came within that group. The Judge said this:
"I have considered all of this evidence with care and in the round. Some of the matters identified are of greater importance than others. The overall effect is to leave me not satisfied, to the low standard required, that the Appellant is a credible witness or her account one on which I can rely."
This was, in effect, to reach an adverse credibility finding against the Appellant and to conclude that she was not a human rights activist within paragraph 7(b) of GJ. The Appellant appeals against that finding.
6. At the hearing before us, the Appellant was represented by Mr Martin, and the Respondent was represented by Mr Bramble. We were grateful to them both for their helpful submissions.
Submissions
7. The Appellant advances three grounds of appeal as follows:
a. Ground 1, the Judge erred in law in his assessment of the Respondent's verification report.
b. Ground 2, the Judge erred in law by failing to make clear findings of fact on central issues in the claim.
c. Ground 3, the Judge erred in law in his consideration of the evidence.
8. The Appellant argues that in the circumstances the Judge has materially erred in law in one or all of the ways listed, and that in consequence the adverse credibility finding is unsafe, and the appeal must be allowed.
9. The Respondent submitted a Rule 24 response dated 1 October 2016 opposing the appeal, contending that the Judge directed himself appropriately and that there is no merit in any one of the three grounds advanced. Mr Bramble developed those submissions before us.
Ground 1- Treatment of Certain Material Evidence
10. The Appellant relied before the FtT on certain court documents and a warrant for her arrest, said to have been issued against her by the Sri Lankan Terrorist Investigation Division (or "TID"), a state organisation responsible for investigating suspected terrorist activity. We will refer to these documents as the "legal documents". These were central to the Appellant's case that she would face arrest and persecution if she returned to Sri Lanka.
11. The legal documents included what purported to be a report to the Magistrates Court in Colombo made by a senior inspector of the TID dated 9 June 2012. It concerned the Appellant's suspected activities in support of the rebel organisation LTTE and recorded what was said to be a court reference number. The report referred to her providing undercover activities and some legal assistance from 2007 and playing a leading role in relation to rescuing charged LTTE members. That document asserted that the TID believed that she possessed relevant information and for that reason the TID was seeking an arrest warrant.
12. The Judge stated that the TID's purported request for the Appellant to be arrested if she tried to enter the country strongly suggested awareness that she was already abroad. He noted that her activities in Sri Lanka, whatever they were, ceased in March 2009, on her own account and that she had remained in Sri Lanka, moving around, until February 2011. The Judge then said this:
"it seems remarkable, and certainly fortunate for the Appellant, that the authorities should have waited so long, and until she was safely out of the country, before taking any official steps against her".
13. Mr Martin challenges this passage for its implicit criticism of the Appellant's case. That criticism, he says, is misplaced. There was an innocent and proper explanation for the sequence of events: the TID was seeking a warrant to ensure that the Appellant would indeed be arrested or stopped should she attempt to re-enter the country, precisely because the TID was aware that she had already left; this explanation is supportive, not destructive, of the Appellant's case.
14. The FtT made no clear finding on this issue. The relevant passage is dismissive in content and nature. The Judge states that the alleged sequence of events "seems remarkable", and we infer that the sequence of events - and his conclusions about it - contributed to his eventual rejection of the Appellant's account. But this gives rise to three problems. First, if that is what he found, he did not say so in terms. Second, if the Judge was rejecting this aspect of the Appellant's case, the rejection is unreasoned. Third, there does seem to us to be a possible alternative explanation, namely that advanced by Mr Martin, and we are unsure whether this was considered by the Judge, and if so, why it was rejected.
15. The Judge went on to make certain comments about the legal documents. He said that it was unclear whether the legal documents related to any court proceedings at all, he noted that they did not identify any specific offence or provision of the criminal law or set a date for court attendance and he questioned why the legal documents would be made public especially when the suspect was out of the country and knowledge of the legal documents would act as a disincentive to return. Mr Martin challenges these observations, submitting in relation to each that there is an innocent explanation: the documents did relate to court proceedings, there is nothing odd about them not identifying any specific offence or provision of the criminal law and having no return date noted and nothing unusual about them being made public. We are unable to take this debate further.
16. The Judge next recorded that the legal documents were produced just before the first scheduled hearing on 26 November 2015 and that on receipt the Respondent had asked for time to verify them, which led to an adjournment to 29 June 2016. By that latter hearing date the Respondent had issued a verification request to the TID, which had been answered by the TID to the effect that the legal documents, including the arrest warrant, were not genuine and that there was no case under the reference given (this was the "DVR", or detailed verification report).
17. At the hearing below, the Respondent relied on the DVR as well as two associated letters:
a. The first was dated 3 July 2015 from the British High Commission in Colombo to the Home Office Presenting Officers Unit, headed "Abuse of Attorney Letters in Sri Lanka" which stated that of the 30 cases where the British High Commission had been involved in checking attorney references, the vast majority were not credible; in consequence, the British High Commission suggested that caution was needed in accepting the assertions in letters of Sri Lankan attorneys.
b. The second was dated 2 November 2015, again from the British High Commission to the Home Office Presenting Officers Unit, to confirm that the High Commission's practice when seeking verification was to ask about the document on the basis that personal information, including names, was always redacted so that the subject could not be identified. All checks were subject to a "strict protocol, including redacting details, to ensure that personal details are not divulged."
18. At the hearing below and before us, the Appellant complained that by making the verification request to the TID, the Respondent had in fact alerted the TID to the Appellant's position. This was said to be in breach of the law (citing Art 30 of Council Directive 2013/32/EU on Asylum Procedures), and was said to have aggravated the risk to the Appellant should she return. In addressing that argument, the Judge said this:
"Whether the authorities consulted might deduce that the enquiry related to an asylum claim I do not know, but if these documents are genuine the TID are clearly alerted to the Appellant already and if they are false the reference number, with no accompanying name, would not be connected to the Appellant and could not therefore generate suspicion directed at her."
19. In this passage, the Judge appears to consider that the legal documents had to be either genuine or false - there was no middle ground. But here we encounter another problem: the Judge did not make any finding either way.
20. In a later part of the determination, dealing with a different argument raised by the Appellant to undermine the DVR, the Judge stated:
"I consider that there are, in the circumstances, reasons to treat the verification report with some caution."
What does this mean, we ask ourselves? On one view, it would not be possible to treat the verification report "with caution" unless that report had been accepted, at least in principle, as correct. On another, "caution" betokens that the Judge had significant reservations about the reliability of the report. But was either of these the judicial finding? Again we find ourselves struggling to identify a clear finding on a material issue. As the Judge had earlier stated, the legal documents were either genuine or false: there was no middle ground. The DVR was surely either reliable or not. If the Judge had insufficient evidence to come to a conclusion on that point, then he should have recorded that and explained how he was proposing to deal with the DVR. We do not find that in his determination. One option open to him was to give the benefit of the doubt to the Appellant: this was, after all, an asylum claim. There may have been other options open to him and it is not for us to rewrite the Determination.
21. In summary, it is not the function of this Tribunal on appeal to make any finding as to the reliability of the DVR. Nor does it fall to this Tribunal to adjudicate on the Appellant's complaint that the TID should not have been approached in the first place. These are not matters falling within the permitted grounds of appeal and they do not properly fall to us to decide. However, we do accept the Appellant's argument that the legal documents were an important part of her case and their reliability was critical to the judge's assessment of her credibility. The FtT's treatment of this evidence is unsatisfactory for the reasons explained above.
Ground 2 - Treatment of the Human Rights Activism Issue
22. The Appellant's case was that she was a "human rights activist" by reason of her activities as a lawyer in Sri Lanka. Her case is summarised at paragraph 7 of the Determination, noting that she qualified in Sri Lanka as a lawyer, she started to practice in 2007 and she specialised in human rights cases. The Appellant produced evidence from various third parties to support her case.
23. The Appellant complains that nowhere in the FtT's decision is there a clear finding as to whether she was indeed a human rights activist for the purposes of paragraph 7(b) of GJ. We reject this criticism. Although no express finding was made, it is clear that the Judge did indeed reject the Appellant's case that she was a human rights activist (see [5] above).
24. However, on the specifics of how that conclusion was reached, the Appellant also pointed to two pieces of evidence put before the Judge to support her claim that she was a "human rights activist", which were not referred to by the Judge at all. Those were:
a. A letter from the Chief Executive Officer of the Society for Love and Understanding, dated 20 August 2015. This society describes itself as a "not for profit human rights organisation" registered as a charity in Sri Lanka. That letter records that the Appellant was a volunteer and rendered pro bono services to the users of the organisation from January 2008 to March 2009, mainly handling the human rights cases of Tamil political detainees who were detained on suspicion of having links with the LTTE.
b. A certificate demonstrating the Appellant's participation in a six month course on the theory and practice of human rights at the Centre for the Study of Human Rights of the University of Colombo, dated 14 February 2007.
25. It seems likely that the Judge treated these two letters as falling into a similar category as "attorney's letters" (many of which were put before the judge), and that he rejected all this evidence on the basis of the letters from the British High Commission, to the effect that attorney's letters were very frequently found to be unreliable. He said this:
"The significance of the High Commission evidence is that apparently reliable but actually false evidence is readily available from Sri Lanka, including from those who are or appear to be Sri Lankan attorneys, in support of asylum claims. I do not see how the caution that requires can be restricted to letters making one particular type of claim."
26. However, again, we are not persuaded that this assessment can stretch to include the two pieces of evidence summarised above, one of which is from a charity and the other from an academic institution - not from attorneys and therefore not addressed by the British High Commission in its letters referred to above. The Appellant is right to point to the absence of any explicit reference to these two pieces of evidence in the determination. Arguably, the second carries little weight: it is a 2007 certificate showing that she attended a course in human rights in Colombo: that is unlikely, in and of itself, to lead to her being a "human rights activist" and a target for the authorities. However, the first document did require closer analysis because it stated in terms that the Appellant had acted for suspected LTTE activists, and this was capable of bringing her within category 2(b) of GJ, as an activist, or perceived activist, in her own right. We conclude that there was a failure by the FtT to consider both items of evidence.
Ground 3 - The Risk on Return Issue
27. By this ground, the Appellant argues that the FtT reached the wrong conclusion in determining that the Appellant was not at risk on return A number of other points were made under Ground 3, at least on paper, but these were not strongly pressed by Mr Martin at the hearing. He concentrated his attack on the matters we have addressed above. We will therefore say nothing further about Ground 3: it is not necessary to do so.
Conclusion
28. We have to ask ourselves whether, taken as a whole, the decision of the FtT demonstrates an error of law (applying s 11(1) Tribunals, Courts and Enforcement Act 2007). Failures to make necessary findings or to give reasons or to consider relevant evidence are all capable of amounting to an error of law.
29. We stand back and ask ourselves whether the Judge's conclusion was properly open to him on the findings he had made. We approach this task applying the "anxious scrutiny" which attaches to any asylum claim. For the reasons set out above, we conclude, with regret, that the FtT's Determination must be set aside. We conclude that the deficiencies we have identified, taken together, lead us to doubt the integrity of the ultimate rejection of the Appellant's account as false. The deficiencies are "material", as it is at least possible that the outcome would have been different if they had been avoided.
30. We would add this: there were reasons for doubting the Appellant's case (the Judge identified various problems with the Appellant's account, besides those outlined above). This was not an open and shut case, at least on paper, either way. That makes it even more important that the FtT's decision should encompass all necessary findings on material issues, suitably reasoned. It should demonstrably address the most important pieces of evidence.
Conclusion and Directions
31. As to disposal, we remit this appeal for a fresh hearing before a different FtT. This is not a case where the Upper Tribunal should properly re-make the decision, given the nature of the errors identified by us.
32. The parties should each file skeleton arguments in advance of the renewed hearing, at least 21 days (Appellant) and 14 days (Respondent) in advance. We do not believe any further directions are required but the parties are responsible for ensuring that such directions are timeously sought and made, for the proper conduct of this re-hearing, if they consider them necessary.
Notice of Decision
We set aside the decision of the FtT and remit the appeal for re-hearing and fresh decision by a differently constituted FtT.
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 her 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.
Permission to appeal
Permission to appeal is refused. There is no issue of law or other reason to grant permission for a second appeal. The case turns on its own facts.

Signed Philippa Whipple Date 15 December 2016

The Hon Mrs Justice Whipple, sitting as a Judge of the Upper Tribunal