Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/08769/2013

THE IMMIGRATION ACTS

Heard at Field House
Decision Promulgated
On 19 December 2016
On 10 February 2017

Before

UPPER TRIBUNAL JUDGE CANAVAN

Between

V G
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

(ANONYMITY DIRECTION MADE)

Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
Anonymity was granted at an earlier stage of the proceedings because the case involves protection issues. I find that it is appropriate to continue the order. 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 her 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.

Representation:

For the appellant: Ms D. Revill, Counsel instructed by MTC & Co. Solicitors
For the respondent: Ms Z. Ahmad, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant appealed the respondent's decision dated 29 August 2013. The appeal was dismissed on two occasions by the First-tier Tribunal. The first decision made by First-tier Tribunal Judge Clarke in October 2013 was set-aside by the Upper Tribunal and reheard by First-tier Tribunal Judge Perry who dismissed the appeal in December 2014. There was a significant delay before the appellant lodged an application for permission to appeal to the Upper Tribunal. However, the Tribunal found that good reasons have been given for the delay and extended time. At a hearing on 15 June 2016 I concluded that the first-tier Tribunal decision involved the making of an error on a point of law and set aside the decision (annexed). The resumed hearing listed for 16 November 2016 was adjourned due to the wholesale failure the appellant's then representatives, Hanson Young solicitors, to prepare the case for hearing. The appeal was relisted for a fresh hearing at which all issues relating to the appellant's protection claim would be considered.

The hearing

2. The appellant attended the hearing and gave evidence with the assistance of a Tamil speaking interpreter. The appellant confirmed the contents of her witness statement and was asked a number of questions. The relevant details of the evidence given by the witness are incorporated into my findings below.

3. I have taken into account the appellant's grounds of appeal, the oral evidence and submissions as well as the reasons given for refusing the application before coming to a decision in this appeal.

Legal framework

4. In order to be recognised as a refugee an appellant must show that she has a well-founded fear of persecution for one of five reasons set out in Article 1(A) of the 1951 Refugee Convention i.e. for reasons of race, religion, nationality, membership of a particular social group or political opinion. The 1951 Convention is interpreted in European law through Council Directive 2004/83/EC ("the Qualification Directive"). The Directive has been incorporated into law in the UK through The Refugee or Person in Need of International Protection (Qualification) Regulations 2006 ("the Qualification Regulations") and through changes in the immigration rules (CM6918).

5. An appellant qualifies for humanitarian protection where she is in the United Kingdom, does not qualify as a refugee as defined by the Qualification Regulations and there are substantial grounds for believing that she would face a real risk of suffering serious harm and is unable, or owing to such risk, is unwilling to avail herself of the protection of that country. Serious harm is defined in paragraph 339C of the immigration rules as (i) the death penalty or execution; (ii) unlawful killing; (iii) torture or inhuman or degrading treatment or punishment of a person in the country or return; or (iv) a serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict.

6. Article 3 of the 1950 European Convention on Human Rights ("the ECHR") prohibits torture, inhuman or degrading treatment. It is an absolute right from which there can be no derogation. An appellant must show that there are substantial grounds for believing that there is a real risk that the consequence of removal would violate her rights under Article 3.

7. The burden of proof is on the appellant to establish the facts of her claim and to show that there is a real risk that she will be subjected to persecution or serious harm. The assessment of risk must be considered at the date of the hearing.

Summary of the appellant's account

8. The appellant is a citizen of Sri Lanka who entered the UK on 16 April 2011 with entry clearance as student that was valid until 28 June 2013. She claimed asylum on 26 June 2013. In summary, the appellant fears that she would be at real risk of serious harm from the Sri Lankan authorities for reasons of her activities and association with the LTTE.

9. The appellant says that she began work as a ward co-ordinator in a hospital in Colombo in 2003. She was promoted to be the secretary to the Medical Director. After the tsunami in 2004 the appellant, alongside other workers from the hospital, volunteered in medical camps in the affected areas. She says that this was when she first came into contact with members of the LTTE. From 2008 onwards the appellant says that she began to assist members of the LTTE to receive treatment at the hospital. She says that LTTE members and their relatives would contact her directly to ask for help. She would not register them on the system, but because of her position as secretary to the Medical Director, she was able to arrange for some LTTE members to be treated by sympathetic doctors. The appellant also says she was able to gain access to supplies from the pharmacy, which gave to members of the LTTE on a regular basis from 2008 onwards.

10. The appellant says that she started work as a part-time relief announcer for a national radio station in 2005. During 2007 and 2008 she agreed to show some members of the LTTE around the radio station. The appellant states that she did not allow the LTTE to broadcast from the station but only to observe how the programmes were made.

11. In April 2010 she says that she went to Jaffna to meet former LTTE members. She was given videos and photographs, which showed how the army were ill-treating Tamils in the north. The videos also contained specific footage of LTTE events. The LTTE members she met wanted her to pass on the videos to foreign organisations to show what was happening in the north of Sri Lanka. She took the materials home but did nothing further with them because she thought that it might put her at risk if she tried to disseminate them.

12. The appellant says that she was abducted from the street by men in a black van in December 2010. She was taken to a place of detention that she thinks was somewhere in Colombo. The CID officers questioned her and accused her of being a member of the LTTE. She was beaten and burned with hot metal rods. The appellant has made a more recent disclosure, not mentioned in interview, that she was raped on several occasions during the three-week detention. She later found out that the CID had searched her family home and found the materials given to her by members of the LTTE. She was questioned about those materials and her connections to the LTTE. The appellant says that she was released after her father made arrangements to pay a bribe.

13. The appellant stayed in two or three different locations before her father decided that it would be best for her to leave the country. The agent made arrangements for her to travel to the UK with a student visa. He was able to make arrangements for her to pass through the airport without being stopped. The appellant claims that she did not claim asylum on arrival in the UK because she was unaware of the option. She thought that she could remain in the UK as a student for a period of two years, at which point, the situation might have changed to the extent that she would be able to return home.

14. The appellant fears that the Sri Lankan authorities continue to have an adverse interest in her as a suspected member of the LTTE. She claims that the authorities have been to her family home on a number of occasions since she left Sri Lanka wanting to know her whereabouts. The appellant claims that members of the CID threatened and assaulted her father in September 2016.

Reasons for refusal

15. The respondent's reasons for refusal letter is dated 29 August 2013. The respondent noted that the appellant provided some evidence to show that she may have worked at a hospital, and as radio presenter. She accepted that her evidence was internally consistent with respect to this part of her claim. However, she concluded that the evidence did not show that the appellant used these positions to provide assistance to the LTTE. The respondent noted that she was able to answer some questions about the LTTE. The information was likely to be in the public domain. The evidence she gave did not demonstrate that the was an LTTE activist or support. She was unable to say when the organisation was founded and referred to her own involvement as a 'side role'.

16. The respondent considered that there were some inconsistencies in relation to the appellant's account of detention. The photographs that were taken as evidence of torture did not substantiate her claim in the absence of a medical opinion. The respondent considered that the fact that she was able to leave Sri Lanka on a valid passport was inconsistent with her claim that she was wanted by the authorities. The respondent referred to information obtained from the British High Commission in Colombo in 2011 and concluded that, at the time of her detention, the Sri Lankan government was in the process of releasing people who had low level involvement with the LTTE. This was inconsistent with her claim to have been arrested at that time. The fact that she did not mention the fact that the authorities had a continued interest in her at the screening interview undermined that part of her claim.

17. The respondent went on to assert that her evidence had been "both internally and externally inconsistent". The fact that she delayed in claiming asylum undermined her claim to be in genuine need of protection. As a whole, the respondent rejected the credibility of her account and concluded that she would not be at risk on return.

Findings of fact

18. I have considered whether the appellant has made a genuine effort to substantiate her claim and whether her account is credible, coherent and plausible and does not run counter to available specific or general information relevant to her case (see paragraph 339L immigration rules).

19. In so far as the appellant's work history is concerned the respondent did not dispute that her evidence had been internally consistent and was supported by some documentary evidence. The appellant has produced copies of correspondence, a work ID card and some photographs of various work events that she was able to take me through at the hearing. I have been given no good reason to doubt her claim that she was promoted to be a medical secretary and may have been able to influence some administrative matters from that position. It is difficult to see what other evidence she could produce to 'corroborate' her claim to have assisted members of the LTTE. I bear in mind that there is a low standard of proof that and asylum seeker does not have to prove her case with any certainty.

20. I find that there is nothing inherently implausible about the possibility that the appellant, alongside other hospital staff, might have volunteered in medical camps in areas affected by the tsunami in 2004. As a Tamil who was helping in areas in the north of the country it is at least plausible that she may have come into contact with members of the LTTE at the time. She does not claim to have started offering assistance to members of the LTTE until 2007-2008. The timeline given by the appellant is consistent with the fact that there was a ceasefire that began to break down in 2006 leading to an escalation of violence over the next few years. In the context of the history of the conflict in Sri Lanka it is plausible that the appellant might have been approached to provide assistance to the LTTE as the situation deteriorated in 2007-2008.

21. It is plausible that members of the LTTE and their families might want to avoid official registration for medical treatment if they feared being identified by the authorities. The appellant was able to give a clear and consistent account of the way in which she would arrange for people to be treated without official registration. Given her role as a medical secretary it is possible that she might have been able to make such arrangements. Although I have some doubts as to whether the hospital pharmacy would give the appellant medicines and supplies quite as readily as she claims, given the fact that medicines are usually under strict control in a hospital, it is at least possible that she may have been able to gain access to some supplies. If there were sympathetic doctors or pharmacists in the hospital it is possible that they might have provided assistance.

22. The appellant does not seek to exaggerate the nature of the support she gave to members of the LTTE who came to the radio station. It is plausible that some LTTE members might have wanted to learn more about the way in which radio programmes are made and broadcast in order to improve LTTE propaganda. The appellant does not claim that the LTTE used the radio station facilities or that this formed a major part of the reason why the authorities took an interest in her when she was arrested and detained in 2010.

23. I am satisfied that the appellant has given a relatively detailed and generally consistent account of this aspect of her claim, which is supported to some extent by documentary evidence. The account is broadly consistent with the timeline of events in Sri Lanka at the relevant time. There is nothing inherently implausible about the possibility that she may have been able to use her position at the hospital or the radio station to provide support to members of the LTTE having established contact with members of the organisation when she carried out humanitarian work in 2004. The appellant does not claim that she held any particular position in the LTTE and properly described her role as a 'side role'. In such circumstances I give little weight to the fact that she might not have been able to demonstrate a detailed knowledge of the history of the LTTE in interview. Her knowledge was appropriate to the 'side role' that she played.

24. I accept that it is at least reasonably likely that the LTTE might have approached her for assistance because she worked in roles that were likely to have been useful in terms of logistical and strategic support. Having made those contacts with members of the LTTE, I have been given no good reason to doubt the fact that, shortly before the military defeat of the LTTE in May 2009, some members of the LTTE might have wanted to smuggle information and footage out of the north of Sri Lanka. At the time there were complaints from the international community about the lack of access and information from the area. As such, there is nothing implausible about the appellant's claim that she was asked to take materials to Colombo with a view to disseminating them to a wider audience. Having taken them home she says that she was too scared to release the material because she considered that it may place her at risk.

25. I find that there is nothing inherently implausible about the appellant's account of having been arrested and detained on suspicion of involvement with the LTTE in December 2010. The 'inconsistencies' highlighted by the respondent were said to relate to the plausibility of her account in the context of the background evidence. The information received from the British High Commission showed that many LTTE members were rounded up and placed in rehabilitation camps before being released. However, nothing in the evidence relied upon by the respondent suggested that the Sri Lankan authorities no longer detained any suspected LTTE members in other facilities. The respondent's findings could only have been made on the assumption that no Tamil could be at risk of detention following the end of the conflict.

26. The findings of the Tribunal in GJ and others (post-civil war; returnees) Sri Lanka CG [2013] UKUT 00319 make clear that the Sri Lankan authorities continue to have an adverse interest in those who are perceived to present a continuing threat to the unitary Sri Lankan state. The appellant's account of abduction from the streets of Colombo is quite different to the mass round ups of the local population in the north after the end of the war.

27. The respondent did not appear to suggest that this part of her account was internally inconsistent but relied solely on the background evidence to suggest that it was not possible anyone could be abducted and detained in the way that she claimed. This was a weak reason for refusal in light of the background evidence and country guidance. 'White van' abductions of suspected opponents from the streets is a phenomenon that has been well documented in the background evidence relating to Sri Lanka. The appellant had produced some evidence of scarring albeit that it was not, at that stage, supported by medical evidence. It has long been accepted that there is a risk of serious ill-treatment if a person is detained by the authorities. The Sri Lankan authorities clearly had a continuing interest in obtaining intelligence from captured LTTE members in order to identify those who still posed a threat to the unitary state of Sri Lanka. It is at least plausible that a member of the LTTE who knew of the appellant's involvement could have provided information some months after the end of the conflict, perhaps during the rehabilitation process, which could in turn lead to an intelligence led arrest sometime after the war had come to an end.

28. The appellant's claim to have been detained and tortured is now supported by expert medical and psychological evidence. The first report was prepared by Professor Sundara Lingam on 11 October 2013. He stated that he is a qualified doctor with experience of providing medico-legal reports for a variety of tribunals. He said that he has some qualification in musculo-skeletal medicine, which included trauma medicine. Professor Lingam examined the appellant's scars and produced a report with proper reference to the criteria outlined in the Istanbul Protocol. He concluded that some scars were "diagnostic" of being burned with a heated metal rod. The date she gave for the injury was consistent with his clinical assessment. He considered whether there were any alternative possible causes for the scarring but concluded that it was unlikely that they could have been caused in any other way than by burning. The position of the scars on the appellant's back made the possibility of self-infliction or accidental injury unlikely. Neither Dr Lingam's qualifications nor his assessment were challenged in oral submissions. I am satisfied that the report is supportive of the appellant's account of the deliberate way in which she was burned with hot rods during detention. The background evidence is consistent in stating that this is a method of ill-treatment used in Sri Lanka.

29. The appellant has produced evidence to show that she was referred to her local mental health team in December 2015. Correspondence from the team to her GP dated 21 December 2015 stated that she had reported symptoms of Post-Traumatic Stress Disorder (PTSD) and had frequent thoughts of harming herself or ending her life. The team was going to refer her on for appropriate support. The course of subsequent events is somewhat unclear but it seems by June 2016 she had been referred for counselling with the Medical Foundation.

30. A 'clinical letter' dated 09 November 2016 prepared by Ms S. Felton, a psychological therapist with the Medical Foundation/Freedom from Torture, outlined the appellant's background and her diagnosis. Ms Ahmad confirmed that there was no challenge to the diagnosis. The Medical Foundation is a reputable therapeutic organisation with a great deal of experience in treating torture survivors. At the date of the report Ms Felton said that she had been meeting with the appellant on a weekly basis. The appellant had already had 12 sessions of 50 minutes length. I am satisfied that this demonstrates that Ms Felton had been able to fully assess the appellant's mental health over a period of time.

31. The history given to Ms Felton was broadly consistent with the core aspects of the appellant's account of past events relating to her work history, the assistance she gave to the LTTE and the detention. In addition to the appellant's previous account of torture and ill-treatment Ms Felton said that the appellant had now disclosed the fact that she was raped on a number of occasions in detention. She noted that the appellant "cried copiously for long periods" when talking about her experiences in detention during their early sessions. She had a deep sense of shame about this experience and was observed to dissociate when they discussed the rapes. She had not disclosed the details of these events until coming to Freedom from Torture. Ms Felton observed that the Home Office interviewing officer and Dr Lingam were both male and suggested that this might have inhibited earlier disclosure.

32. Although the clinical letter is detailed and runs to some six pages, it does not purport to be a formal psychological report with a full diagnosis. I find that this does not detract from the weight to be given to the evidence. It seems clear that Ms Felton is qualified to make a diagnosis and that she has had many hours of assessment during the therapeutic process that she has begun with the appellant. She stated that the symptoms described by the appellant are suggestive of PTSD. She has established an ongoing therapeutic relationship with the appellant as a result of which she felt able to disclose a particularly traumatic, and to her, a deeply shameful form of ill treatment.

33. The UNHCR guidelines on gender-related persecution, as well as the Home Office guidance on gender issues in an asylum claim, both recognise that there might be a reasonable explanation for the late disclosure of sexual violence due to feelings of guilt, shame or fear of authority. In this case the main asylum interview was conducted by a male officer. Professor Lingam is also a man. He saw the appellant on one occasion to assess scarring. It is plausible that the appellant might have felt shame about her experience of multiple rapes and was reluctant to disclose her experience to men that she only spoke to for a short period of time. It is plausible that she only felt able to admit what had happened after she developed an ongoing therapeutic relationship with Ms Felton. As such, I am satisfied that Ms Felton's clinical letter also supports the appellant's account of ill-treatment in detention in Sri Lanka.

34. The background evidence shows that corruption is widespread in Sri Lanka. The appellant's account of her father being able to pay a bribe to arrange for her release from detention is plausible in light of that evidence. In GJ (Sri Lanka) the Tribunal considered evidence from a Sri Lankan barrister who stated that it was common for people to be able to secure release on payment of a bribe, but it did not necessarily indicate that the authorities no longer had an interest in the person. Such cases would normally be recorded as "escaped from detention". Absconder action would be commenced and the detainee's details would be passed to the National Intelligence Bureau [146 GJ (Sri Lanka)]. The Tribunal considered his evidence to be "useful and reliable" [275].

35. The Tribunal in GJ (Sri Lanka) also outlined evidence which indicated that the same level of corruption meant that it was possible to make arrangements to leave the country, even on a valid passport, with the assistance of an agent [146, 170 & 275]. In light of that evidence the fact that the appellant was able to leave Sri Lanka on a valid passport does not necessarily detract from her claim to be of interest to the Sri Lankan authorities.

36. In assessing the overall credibility of the appellant's account I have taken into account section 8 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004. The appellant did not claim asylum on arrival in the UK but entered and remained as a student. She did not claim asylum for a period of two years and only approached the authorities to make the claim two days before her leave to remain was due to expire. The fact that a person delays in claiming asylum is capable of calling into question whether they have a genuine fear of persecution. The appellant claims that she thought the situation might improve and was ignorant of the asylum process. She only claimed asylum after she was advised by friends. I do not accept that the appellant would have been ignorant of the possibility of claiming asylum. Many people in the Sri Lankan community have claimed asylum in the UK. She was able to find out about the process from friends and was likely to be aware of the possibility at a much earlier stage. The timing of the claim suggests that it was only when the visa was about to expire that she felt forced to make an asylum claim.

37. Whilst I accept that the appellant might not have felt compelled to ask for protection when she had some security in the form of a student visa, the delay in claiming asylum is a matter that is capable of undermining her claim to have a well-founded fear of persecution if returned to Sri Lanka. However, in light of the other evidence that is generally supportive of her claim to have suffered severe ill-treatment in the past I am satisfied that this issue forms only one part of my overall assessment and is not a matter that undermines her account of past persecution in any significant way.

38. I had the opportunity of hearing from the appellant. In relation to the aspects of her account regarding past events, she gave her evidence in an open and unhesitating way that was consistent with a person recounting past events rather than simply repeating a prepared account.

39. However, in relation to events since she came to the UK the appellant's evidence was more confused and hesitant. When she was interviewed in August 2013 she said that the authorities had visited her house "once or twice". In her initial witness statement dated October 2013 she claimed that the authorities maintained a "continuous adverse interest in me". She claimed that the authorities last came looking for her in July and September 2013. She repeated the claim of "continuous adverse interest" in her most recent statement prepared in November 2016 and claimed that the authorities had threated her father.

40. In support of this aspect of her claim the appellant produced a letter dated 30 September 2016 from Kanapathipillai Ganeshwaran. He states that he is an attorney at law. The letter includes his address and contact details and is therefore capable of verification. Mr Ganeshwaran states that the appellant's father came to him for legal advice after an incident that took place at his family home in Colombo on 29 September 2016. He informed him that he was threatened and assaulted by a group of unknown men who wanted to know his daughter's whereabouts. He said that he had advised the appellant's father to make a complaint to the authorities. A copy of a police Acknowledgement of Complaint has been produced, which states that the appellant's father made a complaint of harassment. The receipt does nothing more than provide a reference number and state the nature of the complaint as "harassment" without giving any more detail of the incident. There is no evidence from the appellant's father to explain what happened. There is no evidence to support the claim that Mr Ganeshwaran is an attorney at law.

41. When questioned about the visits to her family home at the hearing the appellant said that the authorities first began coming to her family home in April 2011. She said that they had visited their home every month and sometimes one or twice a month since she arrived in the UK. The men questioned and swore at her parents. On one occasion they pushed her father to the floor. She thought that incident happened in 2013. The appellant then said that her parents no longer lived in Colombo and were now staying in Mullaitivu. When asked how long they had been living in Mullaitivu she said that she thought that they relocated in 2011 or January 2012.

42. When asked to clarify her evidence about the places that her parents lived, and which house she says the authorities had visited, the appellant's evidence was vague and confused. She said that her parents sold a house in Thimbirigasyaya (a district of Colombo) "to give to the agent". She claimed that the authorities had come to that house and to another house in Colombo at "H" Road. The appellant was asked about a previous letters written by her mother in 2012 and 2013, which gave the address in "H" Road. The letter from Mr Ganeshwaran, written in September 2016, also stated her father's address as "H" Road and claimed that this was where the incident took place when a group of men visited the address on 29 September 2016. When pressed a little to clarify her evidence it became even more confused. She said that the house at "H" Road was normally closed because her parents now lived in Mullaitivu. Her uncle sometimes visits the house and her father occasionally visits. When that incident happened he was visiting the house. When they were not there she was told that people made enquiries with the neighbours. She said that she didn't know if the authorities had been to her parents' house in Mullaitivu.

43. I take into account the fact that it is plausible that the authorities might have an interest in a person who, on the evidence, would be recorded as having escaped from detention if she was released on payment of a bribe. However, unlike other aspects of the appellant's evidence this part of her account has been confused and unclear. Even taking into account the possibility that a diagnosis of PTSD could include memory problems, the appellant's evidence simply doesn't make sense. If her parents moved to Mullaitivu in January 2012, and she claims that the visits took place to the house in Colombo, which is now mostly closed, it is difficult to see how she could possibly know that there had been monthly visits to the house at "H" Road.

44. The evidence relating to the claimed incident on 29 September 2016 is a third party report from a person who claims to be an attorney at law. Detail of the incident is vague. There is nothing from the appellant's father to explain what happened. It would be possible for anyone to lodge a complaint to the police and obtain a receipt. The receipt does not provide any detail of the alleged incident. The timing of the alleged incident, only a few weeks before a hearing scheduled to determine her asylum claim, does give rise to some concern that this is likely to be an embellishment designed to strengthen her claim. While it might be possible that the authorities may have had some cause to make enquiries with her family in Colombo in the period after she escaped from detention, on the appellant's own evidence, it seems highly unlikely that visits have been made to the family home in Colombo on the continuous basis that she claims after her parents moved to Mullaitivu in January 2012.

45. I bear in mind that a finding that one aspect of the appellant's claim is not credible does not inexorably lead to the conclusion that the whole account is unreliable: see Karanakaran v SSHD [2000] Imm AR 271. Although I find that it seems likely that the appellant has exaggerated the number of visits that might have been made to her family home in Colombo, that does not in itself undermine the core aspects of her account of past detention and ill-treatment. The issue goes to whether she would be at risk on return. Even if she was detained and ill-treated in the past it is still possible that she might exaggerate the extent to which the authorities have taken active steps to seek her out if she is frightened to return.

Conclusion

46. After having considered the evidence as a whole I am satisfied on the low standard of proof that the appellant worked for a hospital and as a part-time radio announcer in Sri Lanka. I accept that she was in a position, along with other members of the hospital staff, to provide humanitarian assistance following the tsunami in 2004. As a result of that work it is reasonably likely that she may have come into contact with members of the LTTE. I accept that the appellant may not have been asked to assist the LTTE immediately, but as the security situation broke down and conflict resumed, her role at the hospital, and to some extent the radio station, was exploited by her contacts in the LTTE. The appellant does not claim that her activities came to the attention of the authorities at the time.

47. The appellant's account of abduction by men in a van in Colombo is plausible in light of the background evidence. The appellant was detained over a year and half after the end of the war. Unlikely many others who were resident in the conflict area, she was not rounded up and placed in a rehabilitation camp. However, it is plausible that those who had been questioned during rehabilitation about LTTE connections may have provided information that led to the appellant's arrest. In other words, the circumstances of her detention suggest that she was targeted as a result of an intelligence led approach. I am satisfied that the medical and psychological reports support the appellant's claim that she was subject to severe ill-treatment including beatings, burning and multiple rapes while she was in detention. The nature of the ill-treatment that she says she received is consistent with the background evidence.

48. I am also satisfied that the appellant's account of release on payment of a bribe and the way in which she was able to travel through the airport were possible in light of the background information. While her delay in claiming asylum and the confusion in her evidence relating to subsequent visits to her family home are matters that undermine the appellant's credibility to some extent, I am satisfied that they are not sufficiently weighty to reject the core aspects of her account of past persecution, which has otherwise been consistent and is supported by evidence. Any embellishment of her evidence relating to subsequent events is a matter that goes to risk on return rather than the credibility of her account of past events.

Decision and reasons

49. For the reasons given above I am satisfied on the low standard of proof that the appellant was subjected to serious ill-treatment amounting to past persecution for reasons of her actual or attributed political opinion. Paragraph 339K of the immigration rules states that the fact that a person has already been subject to persecution or serious harm will be a serious indication of the person's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated.

50. In assessing whether there are good reasons to consider that such persecution will not be repeated I have taken into account the country guidance given by the Tribunal in GJ (Sri Lanka). I take into account the fact that that guidance considered the situation as it stood in 2013. The fact that country guidance identifies certain risk categories does not obviate a judicial decision maker from the need to give anxious scrutiny to the particular facts of a case based on the evidence available at the date of the hearing. Nevertheless, good reasons would need to be given for departing from a country guidance decision.

51. In this case the appellant does not claim that she has conducted any political activities in the Tamil community in the UK. However, the mere level of diaspora activity is not the touchstone for an assessment of risk on return. The central question recognised by the Tribunal in GJ (Sri Lanka) is whether the Sri Lankan authorities are likely to view a person as someone who is perceived to be a threat to the integrity of Sri Lanka as a unitary state. The assessment of whether a particular person's profile will give rise to that perception will depend on the individual circumstances of each case.

52. In this case the appellant was detained well after the end of the war in what appears to be an intelligence led arrest. She was released on payment of a bribe. The evidence considered by the Tribunal in GJ (Sri Lanka) shows that this is likely to be recorded as an escape from detention.

53. Although she does not claim to have played a significant role in the LTTE it matters not what the actual level of her involvement was, in arresting her in the way that they did, the authorities may have suspected her to have a higher level of involvement than she did. In any event, the respondent's most recent Country Information and Guidance (CIG) report on Sri Lanka dated August 2016 outlines evidence from the International Truth and Justice Project (ITJP), an organisation seeking to support accountability for human rights abuses in Sri Lanka, which stated that Tamils with tenuous links to the LTTE or low-level cadres continue to be targeted, along with their families [6.6.3 CIG]. The evidence does not suggest that only high level LTTE suspects are at risk of targeting. As the Tribunal in GJ (Sri Lanka) noted, the authorities are interested in stopping a resurgence of LTTE activity that might threaten the unitary state of Sri Lanka. It is reasonable to infer from this that those who are perceived to actively continue to support the LTTE are likely to be of interest.

54. The CIG sets out evidence from the Immigration and Refugee Board of Canada, which reported that individuals returning from abroad are particularly subject to screening. The ITJP reported that a security force insider testified that military intelligence officials from Joseph Camp were actively looking for Tamils returning from abroad in order to interrogate them with the intention of detaining and torturing them [6.5.2]. While it is difficult to assess the reliability of an unnamed source, the information is consistent with other evidence that shows that the Sri Lankan authorities continue to intimidate, harass, detain and torture those who are perceived to support the LTTE [2.3.8 & 6.1.2].

55. The Tribunal in GJ (Sri Lanka) accepted that a person is likely to be questioned on return to the airport. In this case the appellant is likely to be recorded as a person who has escaped from detention. While I have serious doubts about the credibility of her account of repeated visits to the family home since she left Sri Lanka, the fact that the authorities may not have been actively seeking her out does not mean that she would not be of interest. In light of my findings of fact relating to events before she came to the UK, I am satisfied that the fact of her return would create a 'pinch point' that would bring her to the renewed attention of the authorities. The most recent CIG report outlines evidence from the British High Commission in Colombo from July 2014, which provided the following information about procedures at the airport [6.10.2]:

"The immigration officer will scan the details page of the passport. Each immigration officer's desk has a terminal connected to the DIE Border Control System. This system contains border control, visa/ETA details, citizenship and passport records and is networked to the DIE office in Colombo. It is not linked to any police or military database; however, there is an alert list containing information relating to court orders, warrants of arrest, jumping bail, escaping from detention, as well as information from Interpol and the State Intelligence Service (SIS) computer system. The immigration officer will check for any data matches, check that the document is genuine and unaltered, and look through the passport for visas and/or endorsements. Dependent of the circumstances of an individual passenger, the immigration officer may ask questions to ascertain the purpose of the visit.
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'Passengers may be detained for further questioning by the DIE and/or the Criminal Investigation Department (CID) and/or the State Intelligence Service (SIS) and/or the Terrorist Investigation Department (TID)."

56. The respondent's own evidence would appear to show an additional category on the 'alert list' at the airport, which was not considered in GJ (Sri Lanka). The FCO states that it also includes information about those who are recorded as having escaped from detention. While the Tribunal in GJ (Sri Lanka) did not find that there was a high risk of detention at the airport it was considered more likely that a person would be at risk at the airport if they were on the "watch list". Even if detention is not reasonably likely at that stage a person would be required to register in their home area and would be monitored by the authorities.

57. It is recognised that the authorities identify those it perceives to pose a threat to the unitary Sri Lankan state through an intelligence led approach. In this case the appellant's arrest after the end of the war indicates that this was precisely what happened in her case. Having been released on payment of a bribe she is likely to be recorded as a person who has escaped from detention. According to the FCO this is likely to give rise to a serous possibility that she could be on an 'alert list' at the airport and therefore come to the attention of the authorities on return. Whilst the background evidence relating to political developments in Sri Lanka indicates a slightly improved picture, arrest and detention of Tamils still perceived to be a threat to the unitary Sri Lankan state, even at a low level, are still reported.

58. While it cannot be said with any certainty that the appellant would be at risk of further detention the reason why there is a low standard of proof is precisely because of the serious nature of the potential risk on return. The fact that she has been subjected to serious harm in the past is a serious indication of current risk on return. Having accepted that the appellant was detained and subjected to serious harm in an intelligence led arrest sometime after the end of the conflict I am satisfied that the evidence does not show a significant improvement in the circumstances such that it would demonstrate that there are no good reasons to conclude that past persecution would not be repeated.

59. I conclude that removal in consequence of the decision would amount to a breach of the United Kingdom's obligations under the Refugee Convention and would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant's human rights.

DECISION

The appeal is allowed on protection and human rights grounds.

Signed Date 09 February 2017

Upper Tribunal Judge Canavan

[ANNEX]

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/08769/2013

THE IMMIGRATION ACTS

Heard at Field House
Decision Promulgated
On 15 June 2016

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Before

UPPER TRIBUNAL JUDGE CANAVAN

Between

V G
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

(ANONYMITY DIRECTION MADE)

Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
Anonymity was granted at an earlier stage of the proceedings because the case involves protection issues. The First-tier Tribunal Judge who last heard the appeal in September 2014 did not make an order. However, the judge didn't seem to appreciate that an order was made in October 2013. There is nothing to show that it was formally discharged. I find that it is appropriate to continue the order because the appeal involves protection issues.

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 her 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.

Representation:

For the Appellant: Mr J. Dhanji, Counsel instructed by Hanson Young Solicitors
For the Respondent: Ms Z. Ahmad, Senior Home Office Presenting Officer

DECISION AND REASONS

Background

1. The appellant appealed against the respondent's decision to refuse her protection claim. The appeal was heard and dismissed by First-tier Tribunal Judge P.J. Clarke in a decision dated 18 October 2013. The appellant appealed the decision successfully. The appeal was remitted to the First-tier Tribunal for a fresh hearing.

2. First-tier Tribunal Judge Perry ("the judge") dismissed the appeal in a decision promulgated on 04 December 2014. The judge did not find the appellant's account of her past support for the LTTE and subsequent detention credible and accordingly concluded that she would not be at risk if returned to Sri Lanka.

3. The subsequent procedural history is rather messy. On 26 January 2016 the appellant's current legal representatives, Hanson Young Solicitors, made an out of time application to the First-tier Tribunal for permission to appeal. The application was over a year out of time. The application applied for an extension of time on the ground that her previous solicitors, LG Law Chambers, were subject to intervention by the SRA. There had been a long delay in obtaining her file, which delayed the application.

4. Upper Tribunal Judge Martin (sitting as a First-tier Tribunal Judge) refused permission to appeal on 05 February 2016. The decision is somewhat contradictory. On one hand the judge refused to extend time but instead of refusing to admit the application went on give reasons why permission to appeal was refused.

5. The appellant renewed the application for permission to appeal to the Upper Tribunal. In a decision dated 26 February 2016 Upper Tribunal Judge Finch granted permission to appeal on the ground that:

(i) It was arguable that the First-tier Tribunal Judge failed to give reasons for finding that the appellant had not substantiated her claim that she was the secretary to the medical director of a hospital or that she had also assisted LTTE members through her work at a radio station.

(ii) It was arguable that in considering the credibility of the appellant's account of detention the judge failed to take into account the totality of the evidence, including the medical evidence, before deciding that she had not been detained and tortured.

(iii) It was arguable that the judge failed to take into account relevant statements in the decision of MP & NT [2014] EWCA Civ 829, which indicated that those who had not been active in the diaspora might still be regarded by the Sri Lankan government as posing a current threat to the integrity of Sri Lanka.

6. On 14 June 2016 I made the following directions to the parties:

(i) The timeliness of the application will need to be decided as a preliminary issue. The parties should be ready to deal with the issue. The First-tier Tribunal permission decision was contradictory because the judge refused to extend time yet in purporting to refuse permission the judge appeared to admit the application. The Upper Tribunal Judge who granted permission did not deal with the issue at all.

(ii) The grounds of appeal state that the appellant seeks to challenge the First-tier Tribunal decision promulgated on 04 December 2014 (FTTJ Perry) yet the grounds focus on points made in the decision made by FTTJ Clarke dated 18 October 2013, which appears to have been set aside.

(iii) Bearing in mind the anxious scrutiny that must be given to asylum claims I find that it is in the interests of justice to give the appellant an opportunity to apply to amend the grounds. If an application is to be made the appellant's representatives should be in a position to make an application, and outline the intended grounds of challenge, at the hearing tomorrow morning. The judge will hear any representations and assess whether it is possible to proceeding after having heard from both representatives.

7. Despite best efforts to get the directions sent to the parties the day before the hearing it was perhaps unsurprising that neither Ms Ahmad nor Mr Dhanji had a copy of the directions at the hearing. They were provided with copies. During the course of the morning Mr Dhanji took instructions.

8. At the beginning of the hearing he explained that those instructing him had only received partial copies of the papers relating to the appellant's case and had submitted existing grounds of appeal with the application for permission to appeal. The explanation doesn't make much sense given that the grounds submitted with the application made clear that the appellant was seeking to challenge the First-tier Tribunal decision promulgated in December 2014. The subsequent points made in the grounds relate to findings that were clearly made in Judge Clarke's earlier decision. Through no fault of her own, it seems quite clear that the appellant's current solicitors didn't check the papers or the application properly before serving it on the tribunal.

9. Mr Dhanji applied to amend the grounds to include the three points raised by Upper Tribunal Judge Finch in granting permission to appeal against First-tier Tribunal Judge Perry's decision. I am satisfied that there are good reasons to extend time given the delays that occurred following the SRA intervention of her previous solicitors. Unfortunately, even if her new solicitors were acting on a limited set of papers it should have been obvious to them that the grounds did not relate to the decision that they were seeking to challenge. None of that is the fault of the appellant. Although the situation is highly unsatisfactory I am satisfied that the grounds should be amended according to the three points highlighted above (paragraph 5). Upper Tribunal Judge Finch was already satisfied that those points were arguable.

10. I indicated to Ms Ahmad that, in the circumstances, I would be sympathetic to an adjournment if she considered that the late amendment of the grounds caused her any prejudice. Given the terms of the grant of permission she said that she was prepared to deal with the points and did not need an adjournment. The appeal proceeded on this basis.

Decision and reasons

11. After having considered the grounds of appeal and oral arguments I satisfied that the First-tier Tribunal decision involved the making of an error on a point of law.

12. The judge went through the various aspects of the appellant's account in order beginning with her claim that she worked as the secretary to the director of a hospital before moving on to consider her account of her work at the radio station and subsequent detention. Despite the fact that the judge considered the issues in a logical order I find that there is force in Mr Dhanji's argument that the judge did not conduct a holistic assessment of the evidence. The judge began by finding that the appellant had failed to "substantiate her claim that she was secretary to the medical director" [45].

13. The appellant produced a letter from the hospital dated 17 April 2006, which stated that she had been transferred to the "Director Medical Service's Office as a Trainee Co-ordinator". The judge found that the evidence did not show that she was a secretary as claimed and concluded that she had not offered any explanation as to why she had been unable to provide evidence of "appointment to a position of more seniority". The judge concluded that she had failed to substantiate her claim. Firstly, the judge fails to explain why it was considered that the position of secretary was "of more seniority" than that of a trainee co-ordinator. There was no evidential basis for this conclusion. There was simply no evidence to explain what the role of a "trainee co-ordinator" was. Secondly, the judge failed to consider whether there may simply be some variations in translation into English of the appellant's role at the hospital. Thirdly, the judge failed to assess what weight to place on the evidence, which was on the face of it supportive of the appellant's account to have worked in the office of the Director of Medical Services.

14. Having rejected this aspect of the appellant's account without adequate reasons or consideration of the evidence the judge went on, in paragraph 46, to make a series of findings about the plausibility of the appellant's account of the assistance that she provided to the LTTE in the hospital without giving any reasons whatsoever to support those findings.

15. In considering the credibility of the next part of the claim the judge used the fact that the first aspect was not credible to reject her claim that she assisted LTTE members as part of her work at the radio station. This is indicated by the phrase: "I have already found that the appellant's account that she brought LTTE members into the hospital and arranged for their treatment is not credible. I similarly find that it is not credible that the appellant was of such seniority that she was able to walk around the radio studios showing LTTE members how the work of the station was undertaken?" [47]. No other adequate reasons were given for rejecting this aspect of her claim.

16. The judge then used those two negative findings as the starting point for the assessment of her claim to have been detained and tortured as evidenced by the use of the phrase: "I come now to the appellant's account of her detention. The starting point is that her asylum account is flawed in two key areas" [48]. The judge then went on to find that her narrative did not "mark her out as a person of sufficient importance to attract the attention of the authorities". The judge refers to no evidence to support the inference that a person must be of sufficient seniority to attract the adverse attention of the authorities. The judge rejected her claim to have received videos and photos by LTTE members apparently on the ground that it was implausible that she would do so because she would have been aware of the risks she ran [49]. The judge then made a firm finding that it was not credible that "the appellant received such material or that she stored them at the family home or that they were found by the authorities." [50].

17. It was only after these negative findings relating to the detention were made that the judge turned to consider the medical report prepared by Professor Lingam. An overall reading of the decision indicates that the judge had already rejected the appellant's account of detention in paragraphs 48-50 of the decision without considering the medical evidence as part of that assessment. This is sufficient to amount to an error of approach: see Mibanga v SSHD [2005] EWCA Civ 367.

18. The judge appeared to reject the medical evidence in its entirety. While it was open to the judge to identify a number of weaknesses in the medical evidence there were some findings that still merited, but did not receive, adequate consideration. In particular, Professor Lingam's conclusions relating to the scars on the appellant's back, which he concluded were "diagnostic" of burns caused in the manner described by the appellant. He considered alternative possibilities for the scarring but concluded that it was unlikely that they were self-inflicted due to the position of the scars on her back. Understandably, he was unable to say whether the wounds were deliberately inflicted or were caused by torture. The judge rejected this aspect of his evidence without considering the credibility of the appellant's account in light of the background evidence regarding common torture methods used by the Sri Lankan authorities. Professor Lingam made clear reference to the Istanbul Protocol criteria whereby scarring that is diagnostic "could not have been caused in any way other than that described".

19. While the judge took a chronological approach to the findings of fact my assessment of the decision set out above indicates that inadequate findings in relation to the initial aspects of her account were used to build upon the overall negative credibility findings. In places the judge gave either no reasons or inadequate reasons for the findings. A number of negative findings were made on grounds of plausibility with little reference to the context contained in the background evidence. I bear in mind that the tribunal should be cautious not to place undue weight on plausibility in coming to adverse credibility findings: see HK v SSHD [2006] EWCA Civ 1037 and Y v SSHD [2006] EWCA Civ 1223. Although the judge went on to consider the medical evidence the assessment did not form an integral part of the findings relating to her detention. That aspect of her account had already been rejected before the medical evidence was considered. Despite the weaknesses identified by the judge in the medical report some aspects of the medical evidence were not given the anxious scrutiny required. The combination of these factors undermine the credibility findings to the extent that they amount to an error of law.

20. For the above reasons I conclude that the First-tier Tribunal decision involved the making of an error of law. I set aside the decision. The appeal has already been remitted to the First-tier Tribunal on one occasion. I find that it is therefore appropriate for the fresh hearing to take place in the Upper Tribunal.

DECISION

The First-tier Tribunal decision involved the making of an error on a point of law

The decision is set aside and there will be a fresh hearing in the Upper Tribunal

Signed Date 20 June 2016

Upper Tribunal Judge Canavan