Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10581/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision Promulgated
On 4 August 2016
On 8 August 2016

Before

Upper Tribunal Judge Southern

Between

PARANTHARAN RADHAKRISHNAN
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr H. Sarwar, counsel instructed by Greater London, solicitors.
For the Respondent: Mr T. Wilding, Senior Home Office Presenting Officer

DECISION

1. The appellant, who is a citizen of Sri Lanka, arrived in the United Kingdom in January 2010 and was admitted as a student with leave to remain until 31 December 2012. He overstayed that leave and on 16 March 2015 he claimed asylum. He claimed also that there would be an impermissible infringement of rights protected by article 8 of the ECHR if he were not granted leave to remain. In advancing that claim he relied principally upon the fact that in March 2013, while unlawfully present in the United Kingdom, he married Ms Jeromi Yasmiya David-Chandra, a British citizen who had been born in the United Kingdom to parents of Sri Lankan Origin.

2. The appellant has been granted permission to appeal against the decision of First-tier Tribunal Judge Aziz who, by a decision promulgated on 9 June 2016, dismissed his appeal against refusal of his asylum and human rights claim. The full details of his protection claim are, of course, well known by both parties and for present purposes, the following summary, which I draw from the summary set out in the grounds for seeking permission to appeal, will suffice.

3. The appellant's family in Sri Lanka are all supporters of the LTTE. In 2007 the appellant was arrested by police because he was not in possession of his ID card. He was detained for a few hours before being released. The appellant describes himself as a music composer and a musician who played the drums in a band. He worked for a number of Tamil radio stations. In 2008 or 2009 he was approached by a Tamil youth by the name of Raj Kumar who asked him to compose a song for the LTTE. The appellant composed and provided 3 or 4 songs and was paid for each one.

4. In June or July 2009 he was arrested by police who wished to question him about a friend who had breached release conditions and who had then left Sri Lanka. He was also questioned about the songs he had written. He was detained overnight and was released the next day following the intervention of his father who paid for his son's release and promised officers that his son would not leave Sri Lanka. He was released on bail with monthly reporting conditions. However, he reported on just three occasions and then left Sri Lanka in January 2010. Subsequently, his parents have told him that the authorities have visted the family home asking after him, that being in February or March 2010 and then six month later, making further such visits in 2012 and 2013.

5. The appellant also advanced a sur place claim. He has attended Maveera Day celebrations every November and other LTTE events in the United Kingdom and has played the drums at these events. This means, he claims, that the Sri Lankan authorities, who monitor these events, will have recognised him to be a famous drummer heavily involved in LTTE activities who has also provided songs for the LTTE. This means that he will attract adverse attention on return as someone who has been active in the diaspora in anti-government activities.

6. The judge dismissed the appeal because he did not accept to be true the appellant's account of events at the very heart of his claim. The judge found that the 2007 arrest was not significant and gave rise to no continuing adverse interest. He did not accept to be true the claim that the appellant had composed songs for the LTTE. The 2009 arrest took place because the authorities were interested in someone else. Again, the judge did not accept that the appellant had been questioned about providing the LTTE with songs he had composed. He was released without charge and the judge explained why he did not accept either that there would have been an post release conditions imposed as there was no reason for any continuing interest. It followed from this that the account of the authorities visiting the family home asking after the appellant was also found to be an untruthful embellishment.

7. As for the sur place claim, the judge accepted that the appellant had found work as a musician performing at Tamil events in the United Kingdom, but explained why he did not accept that he was the famous drummer he claimed to be nor that he performed in a manner so prominently at those events as to come to the attention of the Sri Lankan authorities. Therefore, applying the current country guidance, the judge concluded:

"Even taking his sur place activities as a musician at its highest, I would still not be persuaded that he has the type of profile that would bring him to the interest of the authorities, especially in light of my findings as to his lack of LTTE activity in Sri Lanka before he left the country. I find that the appellant is essentially a musician who plays at Tamil events. He is not a political figure, let alone someone who would be viewed as working for Tamil separatism and to destabilise the unitary Sri Lankan state."

8. The grounds upon which permission to appeal was sought and granted set out a broad range of challenges to the decision of the judge. For the respondent Mr Wilding submitted that those challenges amounted to little more than expressions of disagreement with clear findings of fact in respect of which legally sufficient reasons had been provided by the judge. In his oral submissions, Mr Sarwar adopted those grounds and developed some of them further. I shall address each in turn.

9. The first ground is that it was a material error of law for the judge to have failed to set out in his decision the applicable standard of proof. That is wholly unarguable. There is no obligation for that to be stated. The question is whether the judge applied the correct standard of proof, which he plainly did.

10. The second ground raises various complaints about the approach taken by the judge to expert evidence relied upon by the appellant. At paragraph 53 of his decision the judge mentions that he had raised with counsel for the appellant that the report of Dr Chris Smith was unsigned and full contact details were mission. It is now said that he was wrong to have regard to such a minor issue. But the judge went on in the next paragraph that he would, nevertheless, take the report into account and so nothing at all turns upon that.

11. Next, the grounds criticise the judge for accepting the view of the respondent that the report had the characteristics of being a "cut and paste job" but the judge was plainly entitled to make the observation that references to the subject of the report as being a female person was indicative of a lack of care in producing it.

12. While accepting that credibility was an issue to be resolved by the judge and not the expert witness, Mr Sarwar submitted that the judge erred in law by leaving out a material consideration, that being the evidence of the expert witness at paragraph 22 of the report:

"? However, the Appellant's overall account of his experiences in Sri Lanka is consistent with my understanding of the plight of young Tamil men both during and since the end of the war. As such, I consider his account a plausible one."

However, in my judgement the approach taken by the judge to the expert evidence cannot be faulted. Before setting out his findings of fact he made unambiguously clear, at paragraph 52, that he recognised that the expert reports "have been heavily relied upon". It is plain from what the judge says about this evidence that he has examined Dr Smith's report carefully. He makes specific reference to paragraph 22 of the report and so it cannot sensibly be suggested that he was unaware of the view expressed. Unlike Dr Smith, who had not interviewed the appellant, the judge had heard oral evidence from the appellant and so was in any event best placed to make findings upon his credibility. The judge then set out a careful examination of all the evidence before drawing all of that together and making his ultimate findings of fact.

13. Next, it is asserted that the judge made contradictory findings as to whether or not he considered credibility damaged by delay in claiming asylum. The appellant had saod that he became aware of the possibility of claiming asylum when he had spoken to a solicitor in 2010, but had not claimed until March 2015 because he and his wife feared he would be sent back to Sri Lanka. At paragraph 60 of his decision the judge said:

"I accept their evidence and find that the reason for the delay was a fear that the appellant may be returned to Sri Lanka. Whilst section 8 is therefore engaged, looking at the evidence in the round, I very significantly temper any adverse credibility finding due to the delay in the making of the claim."

Mr Sarwar did not seek to add anything to this, simply saying that he relied upon the grounds. This challenge is not altogether easy to follow. If I understand the point being made correctly, it is suggested that implicit in what the judge has said is that he accepted here that the applicant's fear of facing a risk of harm on return was genuine, and so a sufficient justification for his delay in claiming asylum, that being irreconcilable with the ultimate finding of the judge that no such risk existed. That argument leads nowhere at all since the appellant was pursuing also an article 8 claim, in the hope that he and his wife could remain together in the United Kingdom so that delaying the possibility of a negative outcome to an interference in that state of affairs was plainly an equally motivating factor. It is impossible to read into the words of the judge that an acceptance of the protection claim is what drove his conclusion in respect of delay.

14. The next ground complains that it was not reasonably open to the judge to hold against the appellant that he was unaware of the full name of the youth who had asked him to compose songs for the KTTE and so his finding that this did not occur is unsafe. That, however, is not the reason given by the judge for rejecting that part of the appellant's account. The judge said, at paragraph 64, that when pressed for detail about the claim, the appellant had been vague in his answers. The reference to the asylum interview when he was asked for further details if this mad is cited bub the judge as an example of this. But that was not whuy he rejected the account. At paragraph 65 the judge said:

"More concerning is the fact that he was asked at question 57 of the interview to name the songs he had composed. He replied that he cannot remember. It is simply not credible that the appellant could have written and composed a number of songs for the LTTE and yet when he is asked he is unable to name any of the songs which he has written."

It is unambiguously clear that the judge was entitled to find that this was wholly lacking in credibility and is a cogent and legally sufficient basis upon which the judge was entitled to make that finding of fact.

15. The grounds go on to complain that the judge gave inadequate and so insufficient reasons for rejecting the appellant's evidence that he had been released after his most recent arrest on conditions of bail so that on return he would, on that account alone be of adverse interest because he had breached those conditions. That is another challenge that leads nowhere at all. The decision of the judge must be read as a whole. The conclusion of the judge, building upon clear findings of fact already arrived at, that the appellant was a person of insufficient adverse interest such as to generate ongoing adverse interest as manifested in conditions such as those asserted, was a rational and wholly reasonable one for the judge to arrive at. This challenge is no more than an expression of disagreement with a clearly reasoned finding that is simply unassailable.

16. Precisely the same must be said concerning the final challenge, which is to the findings in respect of the sur place claim. This was a carefully reasoned finding of pact that was plainly open to the judge on the evidence and the fact that the grounds express disagreement with the assessment of the judge of the evidence relating to this fails to identify any error of law.

17. Finally, Mr Sarwar addressed those grounds for seeking permission to appeal in respect of the article 8 claim. He said that, distilled to its essence, the complaint is that the judge failed to have regard to the statutory considerations found in s117 of the Nationality, Immigration and Asylum Act 2002 and left out of account, or possibly misunderstood, material evidence, that being the expert report of Dr Halari.

18. As Mr Sarwar in fact recognised, the s117 point is not his strongest one. All that can be said in this context that assists the appellate is that he speaks English (s117B(2)). Other than that, everything speaks against him. The maintenance of effective immigration controls is in the public interest (s117B(1)). The appellant is not financially independent but dependant upon others (s117B(3). His private life and his relationship with his wife have both been formed while unlawfully present in the United Kingdom (other than that part of private life established prior to December 2012 while a student) (s117B(4)). Therefore, even if the judge had specifically considered each part of s117, he could not have taken from it anything that, overall could be seen as taking the appellant's case any further.

19. What Mr Sarwar suggested was the appellant's strongest point was the second complaint in this regard, which is set out in the grounds as follows:

"? it is submitted that the FTJ's conclusion that the Appellant and his wife would be removed together, not giving rise to separation and thus Dr Halari's findings were giving (sic) limited weight amounted to an error of law."

Pausing there, nowhere in his decision does the judge suggest that the appellant's wife, a British citizen, should be removed with the appellant. His finding was simply that there were no insurmountable obstacles preventing family life continuing in Sri Lanka if that what the applicant and his wife chose to do. The grounds simply misrepresent what the judge is saying and so it is necessary to set out in full what the judge did in fact say:

"The appellant's wife was born in the United Kingdom. However, her parents were born in Sri Lanka and she is of Sri Lankan heritage. During her evidence she stated that she speaks to the appellant in Tamil and that she has been visiting Sri Lanka since her childhood. She estimates that she has been to the country 6-7 occasions.

During cross-examination, the appellant was asked why his wife could not move to Sri Lanka with him. The appellant stated that this was not possible because his wife is studying law at university, she was born here and she has family here. For the avoidance of doubt I intervened in the hearing and asked the appellant to confirm the reasons why his wife could not move to Sri Lanka. He gave the same three reasons. When Ms Davidchandran was asked the same question she essentially gave the same reasons. I am afraid that such matters do not amount to insurmountable obstacles. Whilst I can accept that there will be some level of hardship given that the (appellant's wife) has lived in the United Kingdom since birth (even though she is Sri Lankan heritage and speaks Tamil), the reasons cited by the witnesses fall well short of amounting to insurmountable obstacles.

I have taken into account the contents of Dr Halari's report. However, I note that her report deals with the impact upon the appellant's wife if they were separated and he were returned to Sri Lanka. There would be no separation between husband and wife if they both returned to Sri Lanka together and therefore Dr Halari's report is of little relevance when considering EX.1 (b)."

20. Thus it can be seen that the judge said that there would be no separation if they both returned to Sri Lanka together. Whether there is or is not a separation will be a matter for them to decide for themselves. There is no suggestion that the appellant's wife would find herself in Sri Lanka without her husband's support and, of course, it was her own evidence that she has been making visits to Sri Lanka since childhood and would be able to visit the appellant during holidays if she remained to finish her law degree in the United Kingdom.

21. In any event, the judge carried out a careful examination of Dr Hallari's report and it is evident that he was fully sighted upon the nature of that evidence, as he made clear at paragraph 56 of his decision. The judge has plainly taken full account of the opinions expressed by Dr Halari, both in respect of the impact upon the appellant's wife if she remains here and so is separated from her husband and so will have to look for support from the close family members she relies upon or whether they return together. He was plainly entitled to take a different view than that expressed by Dr Halari at paragraph 71 of her report concerning how the appellant's wife would find life with her husband in Sri Lanka if she chose to move there with him.

22. The determination of the article 8 claim was, essentially, a fact based assessment for the judge to carry out and in completing it he made no error of law. Once again, his decision is simply unassailable.

23. For these reasons, despite Mr Sarwar presenting the challenge in the most compelling manner possible, I am entirely satisfied that the decision of Judge Aziz discloses no error of law, material or otherwise.

24. Therefore the appeal to the upper Tribunal is dismissed.

Summary of decision:

25. The Judge of the First-tier Tribunal made a no material error of law error of law

26. The appeal to the Upper Tribunal is dismissed

27. The decision of First-tier Tribunal Judge Aziz is to stand.

Signed

Upper Tribunal Judge Southern

Date: 5 August 2016