Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10387/2014

THE IMMIGRATION ACTS

Heard at Field House
Decisions and Reasons Promulgated
On 10 January 2017
On 12 January 2017

Before

Deputy Upper Tribunal Judge MANUELL

Between

Mr M N
(ANONYMITY Direction MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms C Bayati, Counsel
(instructed by S Satha & Co)
For the Respondent: Mr C Avery, Home Office Presenting Officer

DETERMINATION AND REASONS

Introduction

1. The Appellant appealed with permission granted on strictly limited grounds by Upper Tribunal Judge McWilliam on 30 November 2016 against the decision of First-tier Tribunal Judge Plumptre made in a decision and reasons promulgated on 7 September 2016 which dismissed the Appellant's asylum, humanitarian protection and human rights appeals. As will be noted below, permission to appeal had been refused in the First-tier Tribunal.

2. The Appellant is a national of Sri Lanka, born on 17 January 1987. He had appealed the Respondent's decision dated 18 November 2014 to remove him from the United Kingdom. The Appellant had entered the United Kingdom on 18 September 2013 using a false passport The Appellant claimed asylum on 26 September 2013. He stated that he feared to return to Sri Lanka because of being suspected of LTTE involvement.

3. Upper Tribunal Judge McWilliam described the grounds of onwards appeal as being in the main a blatant attempt to re-argue the case and a disagreement with the findings, very unhelpful. The determination was described as detailed and thorough, with findings grounded in the evidence and adequately reasoned. The judge was manifestly entitled to take into account the fact that the Appellant had given evidence before the TAG and to conclude that speaking of traumatic events had not been as traumatic for him as the medical evidence had suggested.

4. Upper Tribunal Judge McWilliam went on to say that the judge had accepted that the Appellant had been arrested and detained in 2009 and that he had been visited in detention by the ICRC. The fact that he had been visited by the ICRC did not advance his case because many people were visited by the ICRC and such visits did not prove that a person was a combatant. The judge was entitled to comment on the lack of detail in the letter. There was no arguable perversity. The judge was aware that the Appellant was on bail when in the insecure accommodation and did not proceed on the basis that he was detained in the house. The judge had correctly understood the Appellant's account, namely that he was bailed after three months in detention after his first arrest.

5. The findings which the judge had made about the documents which the Appellant had produced in support of his claim were open to her, i.e., that the document issued by Colombo Magistrates' Court contained information at odds with the substance of the Appellant's claim. That did not establish that the judge had arguably misunderstood the evidence. Nor was it necessary for the judge to identify each piece of evidence and make findings on them. As the judge did not accept the Appellant's claimed involvement with the LTTE, or that he was arrested for a second time, the judge was entitled to conclude that the Appellant was not at risk on return and was not in a risk category identified in GJ (Sri Lanka) CG [2013] UKUT 00319 (IAC).

6. Upper Tribunal Judge McWilliam stated that she did not accept that the judge had misunderstood the evidence and rejected the assertions to such effect in the onwards grounds. It was clear that Article 8 ECHR had not been pursued at the First-tier Tribunal hearing.

7. The sole point which Upper Tribunal Judge McWilliam permitted to go forward related to the Home Office's DVR dated 6 June 2016 relating to the alleged police message. The Respondent had indicated that the author of the report had contacted the officer in charge of the police station, who had stated that no messages could have been received or sent by the police station on 21 February 2012, because the station was not opened until May 2012. The issue raised at the hearing was that the Respondent had breached confidentiality by giving full details of his name when seeking verification even though the Home Office had a duty not to release information that would incriminate an asylum seeker. It was arguable that the judge made no finding on the issue. Whether or not there were an error of law on this point did not have any material impact on the judge's findings in respect of credibility, but it might be that risk on return needed to be reconsidered. Judge McWilliam stated that it was expected that the parties would produce a copy of the DVR and that the Respondent would give a full account of the communication and confirm whether the Appellant's identity was revealed.

8. The Respondent filed notice under rule 24 dated 19 December 2016 indicating that the appeal was opposed. The judge had made adequate findings of fact supported by adequate reasons. The DVR had been considered at [30] and [31] of the decision and reasons. Further findings had been made about the Appellant's documents at [65] to [71].

9. Standard directions were made by the tribunal and the appeal was listed for adjudication of whether or not there was a material error of law.

Submissions

10. Ms Bayati for the Appellant relied on the grounds of onwards appeal and on the grant of permission to appeal by the Upper Tribunal. The DVR was produced for the tribunal's inspection. The application to verify some of the Appellant's documents had come from the Home Office but had not been opposed by the Appellant's solicitors as verification had potential to assist the Appellant. Hence the judge's reference to unfortunate repeated adjournments, which had been caused by Home Office delays. Counsel submitted in summary that it had not been clear what information had been provided when the checks were done. The Magistrates Court record had not been verified. All of this amounted to an obvious breach of confidentiality which had placed the Appellant at risk on return. The appeal should be allowed and the decision remade in the Appellant's favour on that basis, given the elements of his account which the judge had accepted.

11. Mr Avery for Respondent also produced a copy of the DVR. Only one document could be checked, as it was not policy to check court records and the other document provided had not been legible. The work was undertaken by RALON on the Home Office's behalf and no personal information was released. The results of the DVR were clear: the police station which the Appellant had alleged sent the message was not open at the time. The document was not genuine. There was nothing which could have placed the Appellant at risk on any basis as the result of the enquiries made since he was of no interest to the authorities for any of the reasons he had claimed. The decision and reasons disclosed no error of law and should stand.

12. Ms Bayati in reply submitted that insufficient information about the DVR process had been provided by the Home Office to show that the Appellant had not been put at risk. It had been accepted by the First-tier Tribunal judge that the Appellant had given evidence to the TAG. He had been identified as an LTTE supporter. The Home Office accepted as of August 2016 that past historical inks could be a risk factor, which was post GJ (as above). The appeal should be allowed.

No material error of law

13. At the conclusion of submissions the tribunal indicated that it found that there was no material error of law and that reasons would be contained in a reserved determination, as follows.

14. Upper Tribunal Judge McWilliam provided a comprehensive decision on in response to the very lengthy onwards grounds of appeal, which response has already been set out above and which it is not necessary to repeat here. It is also useful to recall Upper Tribunal Judge Martin's conclusions when refusing permission to appeal in the First-tier Tribunal:

"The decision and reasons is a detailed and thorough assessment of the Appellant's claim. The judge was careful to point out that she made no findings based on the Appellant's inability to give oral evidence. The judge was entitled to express concern that she was being told that the Appellant was too traumatised and frightened to give an account of his mistreatment when he had done so in late 2015 to the TAG.

"The judge found for detailed reasons that the Appellant had been detained in 2009 but had not been detained and ill-treated in 2013 as claimed. She found that even if he had been forced to work for the LTTE he would no longer be at risk.

"Despite the length of the grounds, the Appellant's claim does not come close to placing him in any of the risk categories in GJ (as above). There was nothing else about this Appellant which from that source. Indeed, despite the defeat of the LTTE on 17 May 2009, soon to become 8 years ago, asylum claims continue to be made in the United Kingdom in what might be thought to be surprising numbers. Some claims are recognised as well founded by the Home Office and hence are never seen on appeal, so that judges see only the contested claims which as a group are likely to be much weaker. It is beyond dispute that Sri Lanka is an endemically corrupt country with low standards in public life. False official documents are readily available, as the "police message" produced in present appeal illustrates. The DVR showed it to be false but Judge Plumptre gave other sustainable reasons for rejecting its reliability. There was no evidence produced to the judge to show that the Appellant had been somehow put at risk because of RALON's enquiry process. It was simply an inference which she was in effect invited to draw, and declined to do.

15. It is possibly too trite to say, but asylum claimants in the United Kingdom have little or nothing to lose from pursuing the process as far as they can. The worst that can happen is that they might be returned to their home country at no expense to themselves at the end of what is all too often a long drawn out appeals process, during which time they are supported by the state if unable to work. Establishing the truth of a claim (or rather, the level of risk on return to the standard of a reasonable likelihood) can often be a difficult process. Technicalities are frequently urged on appellants' behalf, rather than a frank and realistic evaluation of the merits.

16. Experienced First-tier Tribunal judges such as Judge Plumptre would be expected to recognise certain over familiar elements to an appeal such as that advanced by the present Appellant, of which post asylum interview inability to give evidence based on a recently obtained medical report is but one. Despite those familiar and unpromising elements noted above, the judge examined the case put forward by the Appellant in the round, with evident anxious scrutiny. The tribunal considers that the police message and the other documents produced by the Appellant were examined by the First-tier Tribunal judge (see [28], [30], [31], [65] to [71] of the decision) and full and proper reasons were given for finding that the police message form was unreliable. The only matter which Upper Tribunal Judge McWilliam considered justified a grant of permission to appeal was the potential effect of the DVR enquiries.

17. The explanation of the steps taken by the Home Office to verify that police message were given by Mr Avery and the tribunal considers that the explanation provided shows conclusively that appropriate safeguards were taken to avoid placing the Appellant at risk. The verification process (which the Home Office are under no obligation to undertake) is well established for Sri Lanka and it is frankly absurd to suggest that additional grounds of claim would be generated by revealing the Appellant's identity. Data protection is these days something of an official obsession and is the subject of extensive regulation. That no doubt is behind the policy in relation to court documents. Moreover, and above all, as Mr Avery submitted, the judge had found for sustainable reasons that the Appellant had long ceased to be of any interest to the Sri Lanka authorities: see [73] to [78], and [81] onwards of the decision and reasons. An enquiry as here made without revealing the Appellant's identity cannot have placed him at risk and the judge was right not to infer that it might have done in the absence of positive evidence suggesting otherwise.

18. The "historical interest" point which Ms Bayati, ever seeking to reargue the entire appeal, sought to raise takes the claim no further. The judge found that any interest in the Appellant ceased in 2009 and that all claims of subsequent interest in him by the authorities were in effect a fabrication: see [90] of the decision and reasons. The judge's decision was a comprehensive reflection on the various issues raised in the appeal. There was no material error of law in relation to the DVR or any other matter. There was no further real risk to the Appellant caused or created by the Respondent in relation to the enquiries made about the police message document in Sri Lanka, the only document in fact investigated. There is no basis for interfering with the judge's decision to dismiss the Appellant's appeal, which dismissal must stand.

DECISION

The tribunal finds that there is no material error of law in the original decision, which stands unchanged

Signed Dated

Deputy Upper Tribunal Judge Manuell