AA/10286/2013

• Status of case: Unreported
• Hearing date: 5 Oct 2016
• Promulgation date: 6 Oct 2016
• Publication date: 30 Jul 2018
• Last updated on: 30 Jul 2018

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10286/2013


THE IMMIGRATION ACTS


Heard at Manchester
Decision & Reasons Promulgated
On 5th October 2016
On 6th October, 2016



Before

UPPER TRIBUNAL JUDGE MARTIN


Between

DELRAN [M]
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent


Representation:
For the Appellant: Mr Jagedesham (instructed by Bury Law Centre)
For the Respondent: Mrs H Aboni (Senior Home Office Presenting Officer)


DECISION AND REASONS

1. This is an appeal to the Upper Tribunal, with permission, by the Appellant in relation to a Decision and Reasons of the First-tier Tribunal (Judge Lever) promulgated on 25th September 2014.


2. The Appellant is a citizen of Sri Lanka who claimed asylum on the basis that he had unwittingly assisted the LTTE prior to 2007. His wife and two children are his dependents.

3. It is regrettable that it has taken so long for this case to appear before the Upper Tribunal. It is even more regrettable that this was a rehearing of the case in the First-tier Tribunal, it having been previously remitted from the Upper Tribunal.

4. The main ground relied upon on the Appellant's behalf and on which permission to appeal was granted was that the Judge had erred in his treatment of the medical evidence.

5. It was asserted that the Judge speculated as to alternative causes of lesions on the Appellant's feet from those provided by Dr Smith of the Helen Bamber Foundation. In that regard I find the Judge did not err as the part of the decision criticised on the Appellant's behalf is actually taken from the medico legal report itself and is not something that the Judge has speculated for himself.

6. However, there was one crucial part of the medical evidence that the Judge did fail to take into consideration, capable of corroborating his claim and that is at paragraph 61 of the medical report. There the doctor finds the scarring to the Appellant's right foot to be typical of the attribution given in which the Appellant was subject to multiple, forceful episodes of falaka. What the judge failed to take into account was that the Appellant's claim was that falaka had been practised against him only during his second period of detention in 2010. He had made no such claim in relation to the period of detention in 2007.

7. The judge found his claim to have been detained in 2010 not credible and in misunderstanding the contents of the medical report and failing to take it all properly into account in his assessment of credibility I agree that he made an error.

8. The Judge, having found the Appellant was detained and tortured in 2007 but not since and not on his return to Sri Lanka in 2010 concluded that the authorities were not interested in him then and would not be now. He did not fit in any of the risk categories identified in GJ and others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC).

9. To cut short the hearing to decide whether or not the First-tier Tribunal had made a material error of law I asked Mr Jagadesham to identify what factors about this Appellant would place him at risk on return; taking his claims at their highest.

10. Mr Jagadesham said that he had been detained on two occasions, once in 2007 and once in 2010 and also his death had been faked and a fake death certificate produced and shown to the authorities to mislead them and put them off visiting his mother in Sri Lanka to enquire as to his whereabouts. He argued that the fact that he had inadvertently assisted the LTTE prior to 2007 and that he had been detained on two occasions and released the second time on payment of a bribe would be discovered when he was questioned on return and would lead to a real risk of further persecution. He argued that the fact that he had been detained in 2010, after his return, indicated ongoing interest in him.

11. Initially, I had real concerns that this did not establish a risk factor outside those identified in the country guidance case of GJ. However, an examination of the most recent "Country Information and Guidance on Sri Lanka: Tamil Separatism" updated in August 2016 indicates that matters have arguably moved on since GJ was decided and there is evidence that it is not only people active in the diaspora or actively working against the Sri Lanka government who are at risk of arrest, detention and torture. That being the case it may be that this Appellant can establish that he would be at risk notwithstanding the fact that he has never been a member of the LTTE and has carried out no diaspora activities in support of the LTTE. He was a low level supporter. It is thus possible that a Tribunal hearing all the evidence and taking it all into account, including the medical evidence, may conclude that the Appellant would be at risk on return. For that reason the errors in the assessment of credibility and in the treatment of the medical report are material such that I set the decision aside.

12. Reluctant as I am to remit a case to the First-tier Tribunal for the second time, the number of findings that need to be made and the complexity and volume of evidence in this case make that the appropriate way forward.

13. The Appellant's appeal to the Upper Tribunal is therefore allowed to the extent that the First-tier Tribunal's decision is set aside and the matter remitted to that Tribunal for a full rehearing.

14. There was no application for an anonymity direction and I see no justification for making one.


Signed Date 5th October 2016

Upper Tribunal Judge Martin