Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal: AA/09847/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 1 November 2016
On 10 November 2016

Before

UPPER TRIBUNAL JUDGE WARR

Between

SS
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr J Martin, of counsel, instructed by Greater London solicitors
For the Respondent: Mr P Singh, Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant is a citizen of Sri Lanka born on 21 December 1987. In 2001 she moved from Sri Lanka to India with her grandmother. She met her husband in India in 2007. Following problems with her husband's family she obtained refugee status in India. She claimed that members of her family were members/supporters of the LTTE. She wanted to maintain her relationship with her husband. She applied for a student visa and came to the UK on 14 November 2011 with her husband as a dependent. She returned to Sri Lanka on 25 January 2013 as her mother was unwell. She was detained and questioned on arrival at the airport and 3 days later she was detained for enquiries by the police and Terrorism Investigation Department. She was seriously ill treated and raped the following day. Her uncle procured her release and contacted an agent who obtained a false passport for her in the name of Sawarna Pandaro. She left Sri Lanka on that passport travelling to Muscat on 8 February 2013. The agent had arranged for her to travel with another woman. The appellant flew from Muscat to Heathrow on the same flight. She had used her own passport to travel from Muscat to the United Kingdom, arriving on 8 February 2013. She applied for asylum 2 weeks later.
2. The respondent refused the application on 19 June 2015. The respondent did not accept that the appellant had left Sri Lanka on a false passport as on page 22 it clearly showed a Sri Lankan exit stamp dated 8 February 2013. The respondent considered that the appellant had attempted to mislead the UK authorities and that this seriously damaged the overall credibility of her claim. Furthermore she had not made her claim promptly. The respondent was not of the view that the appellant would be at risk on return to Sri Lanka and moreover it was considered that she would be able to return to India. There was a sufficiency of protection for her there. Appropriate medical treatment was available in Sri Lanka for the appellant. The appellant's application was refused on all grounds.
3. The appellant appealed and her appeal came before a First-tier Judge on 4 August 2016.
4. The judge heard oral evidence from the appellant, her husband and her sister. Her claim was supported by medical evidence.
5. In making his findings the judge considered the medical report that had been prepared. The appellant had scars which were typical or consistent with the ill-treatment that she had suffered. The judge reminded himself that in accordance with the Istanbul Protocol "typical of" meant an appearance that was usually found with this type of trauma but there were other possible causes whereas consistent meant that the scar could have been caused by the trauma described but was non-specific and there were many other possible causes. A psychologist had found the appellant to be suffering from post-traumatic stress disorder. The judge stated he had taken this evidence into account in his assessment of the appellant's credibility. It was accepted that the appellant had attended a clinic for treatment in Sri Lanka and this was circumstantial evidence which tended to support her account but did not in itself prove her claim to have been detained and ill-treated.
6. The judge then turned to consider the issue of the stamp in the appellant's passport. The judge found that the appellant's explanation for the stamp being in her passport was that the other woman who the agent had arranged to travel with her passed through the controls and obtained the stamp. The judge observed:
"This means that the immigration and security officers must have failed to recognise that photographs of the same person featured in two passports on the same flight. I accept that this is possible although I find it unlikely given the security concerns existing in Sri Lanka at the time. Far less likely is that the agent would have been able to find a woman so closely resembling the appellant that she would have passed for her in those circumstances."
7. The determination continues:
"35. That is not the end of the matter. The appellant says that she travelled on a ticket from Colombo to London. She was unable to recall whose name was on the ticket. If it was in her name she would have come to the attention of the authorities in Colombo because it would not have matched the name in the passport she was using. If it was in the other name it would not have matched her own passport which she used to travel from Muscat. I find it very unlikely that her identity would not have been checked as she boarded the flight in Muscat. If she was travelling on the false passport that name would appear on the passenger itinerary and not her own. In those circumstances I find it very unlikely that she would have been allowed to board the flight.
36. The appellant has not provided a satisfactory explanation for the presence of the stamp in her passport. I am satisfied that the reason for that is that she used her own passport to leave Sri Lanka. It follows that you must have passed through the security and immigration checks at the airport which is persuasive evidence that she was not of interest to them. I note also that in her own name she passed through the very security checks which were the catalyst for her detention without adverse consequences. Of greater significance is that she has lied in an attempt to mislead the respondent. I find this to completely undermine her account which I reject."
8. The judge did not accept that the appellant had a genuine fear of persecution and there was no need to consider whether such a fear might be objectively well-founded. In the light of the country guidance the appellant would not be at risk as a returned failed asylum seeker. The judge dismissed the appeal on all grounds.
9. The appellant applied for permission to appeal from the decision and permission was granted on 26 September 2016. In the grounds it was argued that the judge had failed to engage with the core of the appellant's claim. The judge found the point arguable "inasmuch as the appellant led detailed evidence of torture and sexual abuse in Sri Lanka, and as the judge did not directly address or analyse these allegations?"
10. Counsel submitted that the judge had made positive comments on the medical evidence. He had erred, however, in disposing of the whole of the claim which had been supported by detailed medical evidence on the single issue of the passport stamp. It had been argued by experienced counsel who had settled the grounds of appeal that the judge's finding did not take into account the country guidance on the issue of bribery. Reference had been made to GJ and others [2013] UKUT 00319 (IAC) at paragraph 146 where a lawyer had given evidence that it was possible to leave the country using bribery with the help of an agent: "the security officers and immigration officers at the international airport are no exception to the widespread bribery and corruption in Sri Lanka. It is always possible for a person to use influence or bribery to get through the airport without being detained as an LTTE suspect.? Therefore leaving through the airport either with his/her own passport or false identity does not necessarily indicate a lack of interest on the part of the authorities." The tribunal had found this evidence significant commenting at paragraph 275 that the evidence "on the process of bribery was particularly useful."
11. In relation to what had happened in Muscat it was the appellant's account that she had been given her own passport back there. It was necessary to show a valid stamp in her passport as she was entering the UK as a tier 4 student.
12. Counsel submitted that in considering the appellant's account the judge had not opened his mind to the issue of connivance rather than a mistake by officials. Even if she had left on her own passport it did not follow that her account should not have been properly considered in the light of what was said in the country guidance case.
13. Mr Singh relied on the respondent's response. The judge had found the entire claim to have been fabricated. The appellant had given her explanation of what had happened in the screening interview and in her witness statement. She had detailed what had occurred in Muscat in that statement. If I was satisfied that the judge had erred it would be necessary to have a fresh hearing. He pointed out that the judge had not found it necessary in the circumstances to deal with the respondent's point that the appellant could be returned to India. In the grounds of appeal there had been a reference to background evidence but it was not clear whether that had been before the First-tier Judge. Accordingly if the matter were to be heard afresh the respondent's point about the appellant being able to return to India would be open.
14. In response Mr Martin did not wish to add to the submissions that he had made but accepted the suggestion that if a material error of law were to be found the matter should be remitted for a de novo hearing.
15. This is a difficult and borderline case. It is of course open to a judge to determine a case on a single issue such as happened here. However as counsel succinctly put it the judge focused on the issue of mistake by officials rather than corruption or connivance. This was a case where the appellant claimed to have suffered at the hands of the authorities and the account was supported by medical evidence. In such a case great care and scrutiny has to be given to the material and findings needs to be made on the evidence as a whole. I appreciate that the judge stated he had taken into account the medical evidence when assessing credibility but nonetheless he founded his determination on the question of the passport stamp. A subsidiary matter is that as counsel points out it was the appellant's case that she used her own passport on the flight from Muscat.
16. I find that the determination was materially flawed in law as argued by counsel. In those circumstances both parties agreed that the matter would have to be heard afresh. The point made by the respondent about return to India would of course remain open at such a hearing. In the light of the degree of fact-finding required it is appropriate this appeal should be remitted for a fresh hearing before the First-tier Tribunal.
Appeal allowed. The appeal will be remitted for a fresh hearing on all issues.
Anonymity Decision
It is appropriate to make an anonymity order in the circumstances of this case.
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 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.
FEE AWARD
The First-tier Judge made no fee award and insofar as a fee was paid or is payable it would be inappropriate at this stage to make an award.

Signed
G Warr, Judge of the Upper Tribunal

4 November 2016