Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/11246 /2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 14 July 2016
On 15 September 2016

Before:

UPPER TRIBUNAL JUDGE GILL

Between

Secretary of State for the Home Department
Appellant

and

MJ
(ANONYMITY ORDER MADE)
Respondent

ANONYMITY ORDER
Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269), I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original appellant referred to in this decision as the claimant or any of the member of his family mentioned in this decision.

This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.

Representation:
For the Appellant: Mr E Tufan, Senior Home Office Presenting Officer.
For the Respondent: Mr D Coleman, of Counsel, instructed by S Satha & Co Solicitors.

DECISION AND REASONS
1. The Secretary of State has been granted permission to appeal to the Upper Tribunal against the decision of Judge of the First-tier Tribunal Hanley who allowed the appeal of MJ, a national of Sri Lanka born on 10 April 1987 (hereafter the "claimant"), on asylum grounds, human rights grounds (Article 3 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)) and immigration grounds against the decision of the Secretary of State of 4 August 2015 refusing his asylum and human rights claims.
2. The claimant arrived in the UK on 11 September 2008 with entry clearance as a student, travelling on his own passport. He claimed asylum on 28 August 2014.
3. The Secretary of State's grounds do not take issue with the judge's assessment of credibility. They contend that he materially erred in law in his assessment of the future risk of persecution, in that, he materially erred in applying the country guidance in GJ and others (Post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC).
4. The guidance in the head-note of GJ and others reads (insofar as relevant):
(1) This determination replaces all existing country guidance on Sri Lanka.
(2) The focus of the Sri Lankan government's concern has changed since the civil war ended in May 2009. The LTTE in Sri Lanka itself is a spent force and there have been no terrorist incidents since the end of the civil war.
(3) The government's present objective is to identify Tamil activists in the diaspora who are working for Tamil separatism and to destabilise the unitary Sri Lankan state enshrined in Amendment 6(1) to the Sri Lankan Constitution in 1983, which prohibits the 'violation of territorial integrity' of Sri Lanka. Its focus is on preventing both (a) the resurgence of the LTTE or any similar Tamil separatist organisation and (b) the revival of the civil war within Sri Lanka.
(4) If a person is detained by the Sri Lankan security services there remains a real risk of ill-treatment or harm requiring international protection.
(5) Internal relocation is not an option within Sri Lanka for a person at real risk from the Sri Lankan authorities, since the government now controls the whole of Sri Lanka and Tamils are required to return to a named address after passing through the airport.
(6) There are no detention facilities at the airport. Only those whose names appear on a "stop" list will be detained from the airport. Any risk for those in whom the Sri Lankan authorities are or become interested exists not at the airport, but after arrival in their home area, where their arrival will be verified by the CID or police within a few days.
(7) The current categories of persons at real risk of persecution or serious harm on return to Sri Lanka, whether in detention or otherwise, are:
(a) Individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they are, or are perceived to have a significant role in relation to post-conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka.
(b) ?
(c) ?
(d) A person whose name appears on a computerised "stop" list accessible at the airport, comprising a list of those against whom there is an extant court order or arrest warrant. Individuals whose name appears on a "stop" list will be stopped at the airport and handed over to the appropriate Sri Lankan authorities, in pursuance of such order or warrant.
(8) The Sri Lankan authorities' approach is based on sophisticated intelligence, both as to activities within Sri Lanka and in the diaspora. The Sri Lankan authorities know that many Sri Lankan Tamils travelled abroad as economic migrants and also that everyone in the Northern Province had some level of involvement with the LTTE during the civil war. In post-conflict Sri Lanka, an individual's past history will be relevant only to the extent that it is perceived by the Sri Lankan authorities as indicating a present risk to the unitary Sri Lankan state or the Sri Lankan Government.
(9) The authorities maintain a computerised intelligence-led "watch" list. A person whose name appears on a "watch" list is not reasonably likely to be detained at the airport but will be monitored by the security services after his or her return. If that monitoring does not indicate that such a person is a Tamil activist working to destabilise the unitary Sri Lankan state or revive the internal armed conflict, the individual in question is not, in general, reasonably likely to be detained by the security forces. That will be a question of fact in each case, dependent on any diaspora activities carried out by such an individual.
(10) Consideration must always be given to whether, in the light of an individual's activities and responsibilities during the civil war, the exclusion clauses are engaged (Article 1F of the Refugee Convention and Article 12(2) of the Qualification Directive). Regard should be had to the categories for exclusion set out in the "Eligibility Guidelines For Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka", published by UNHCR on 21 December 2012.
Basis of asylum claim
5. In summary, the basis of the claimant's asylum claim was that his motorbike was stolen on 15 May 2008. He reported the theft to the police. The next day, on 16 May 2008, there was a bomb explosion in Colombo in which a motorbike was used. He was arrested in connection with the police investigation. He was released on 25 June 2008. He was granted bail at court but there a bribe was also paid. He absconded and escaped from Sri Lanka. During his detention, he was tortured by the authorities. He was also sexually assaulted by other prisoners.
The judge's decision
6. The claimant did not give oral evidence before the judge.
7. The judge accepted, on the basis of a psychiatric assessment by a Dr. Raj Persaud, a section 12 approved consultant psychiatrist, that the claimant was not fit to give evidence.
8. The judge found the claimant credible. He accepted the claimant's account and found that he had been arrested and tortured, including being sexually abused by other prisoners in Sri Lanka in 2008. He said that he had "no real reason to doubt" the documentation submitted in respect of his contact with the authorities and his release on bail. He noted that his account was corroborated by his mother's letter and said that he was prepared to give the mother's letter some weight because it was "detailed, highly consistent with the [claimant's] account and focuses on matters within her personal knowledge and reads with a ring of truth". He found that the mother's letter was evidence of continuing interest in the appellant by the authorities.
9. The judge considered the future risk at paras 60-62 of his decision, which read:
60. I am satisfied that the appellant falls within a risk category identified in GJ. Because of the arrest in connection with the 2008 bombing, there [sic] is reasonable grounds for believing that he will be arrested and detained on return to Sri Lanka. He is likely to be on a watch or stop list. He is particularly vulnerable to questioning in view of his mental ill-health. He was not fit to give evidence in the hearing of the asylum appeal and he is even less likely to be able to cope with questioning and, indeed, there is a prospect of drawing attention to himself as submitted by his counsel, because of his demeanour. If arrested and detained, there is a grave likelihood of further ill-treatment.
61. GJ establishes that internal relocation is not an option for a person at real risk.
62. The risk category that the appellant falls into is that of 7(a), namely, by virtue of his history he is likely to be perceived to be a threat to the integrity of Sri Lanka or to have continuing Tamil separatist links. In addition, 7(d), his escape and failure to cooperate with the terms of his bail is likely to mean that there is an extant court order or arrest warrant in existence and that is a document identifiable at the airport and he is likely to be on a stop list.
The Secretary of State's grounds
10. The Secretary of State's grounds may be summarised as follows:
i. (Ground 1, i.e. paras 1. b)-f) of the grounds) The judge did not correctly apply the guidance in head-notes 7(a) and 8 of GJ and others in making his finding at para 60, that "Because of the arrest in connection with the 2008 bombing, there is reasonable grounds for believing that he will be arrested and detained on return to Sri Lanka. He is likely to be on a watch or stop list" and at para 62 that "by virtue of his history he is likely to be perceived to be a threat to the integrity of Sri Lanka or to have continuing Tamil separatist links". The judge had made no findings in respect of "significant role" played by the claimant in post-conflict Tamil separatism within the diaspora or a renewal of hostilities within Sri Lanka. As a result, the grounds contend that the judge had erred in finding that the claimant falls within the risk category in head-note 7(a) of GJ and others. In addition, given that there was no evidence or findings to suggest that the claimant posed a threat to the unitary Sri Lankan state due to any activities in the UK, the judge erred in assuming that the claimant would be perceived as such.
i. (Ground 2, i.e. para 1 g) of the grounds) The judge speculated as to the existence of an arrest warrant or court order in the claimant's case without any independent evidence to suggest that the claimant was subject to any interest from the authorities. In the absence of such independent evidence, the judge speculated in finding that the claimant fell within risk category 7(d) of GJ and others.
11. As can be seen, ground 1 concerns paras 7(a) and 8 of the guidance in the head-note of GJ and others and ground 2 concerns para 7(d) of the guidance in the head-note.
Submissions
12. Mr Tufan relied upon the grounds and submitted that, in relation to para 7(a) of the head-note in GJ and others, there was no evidence at all before the judge of any involvement by the claimant with the Diaspora. In relation to para 7(d), he submitted that the judge had not done enough to explain why he found that there would be an extant order or arrest warrant. He accepted that there was no need for corroborating evidence but drew my attention to the fact that the claimant had said in answer to question 119 of his interview that he would ask his father to send the arrest warrant to him but no arrest warrant was submitted to the Secretary of State. There was no independent evidence of any such arrest warrant. There was no "reliable evidence" before the judge that there was an arrest warrant or an extant court order against the claimant.
13. I heard briefly from Mr Coleman briefly in reply.
Assessment
14. Mr Tufan submitted that there was no reliable evidence before the judge that there was an arrest warrant or an extant order against the claimant. In my view, Mr Tufan was effectively attempting to suggest that the evidence before the judge as to the existence of an arrest warrant or extant court order was unreliable and, to this extent, he was attempting to go beyond the grounds. I agree with Mr Coleman that credibility was not raised in the grounds. In addition, it has to be said that the Secretary of State's grounds did not contend that the judge's findings were inadequately reasoned or insufficiently supported by reliable evidence.
15. In this respect, ground 2, as formulated, was that the judge had speculated as to the existence of an arrest warrant or court order without any independent evidence to suggest that the claimant was of interest to the authorities. However, as Mr Tufan accepted, it was not necessary for an asylum claim to produce supporting or corroborative documentary evidence.
16. Mr Coleman drew my attention to the following evidence that was before the judge:
i) In answer to questions 118 and 199 of his asylum interview, the claimant said that, since his departure from Sri Lanka, the authorities had made frequent visits to his home and "also when my father reports they ask him". He said that he did not know when the arrest warrant was issued but his father called him two months before the interview took place (the interview took place on 12 December 2014) and told him that there was an arrest warrant.
ii) In her witness statement dated 26 February 2016 (p53), the claimant's mother said: "? The police and TID are without information about my son and this has resulted in an arrest warrant being issued. He is being sought to this day and enquiries are continuing."
17. Given the evidence described above and that there is no requirement for corroborative evidence, I agree with Mr Coleman that there is nothing in the argument that there was no independent evidence of an arrest warrant or a court order. The judge had clear evidence before him, from the claimant and his mother, as described above, which he plainly accepted. He was entitled to accept that evidence and reach his finding that there was an arrest warrant against the claimant. The judge was therefore entitled to conclude, applying para 7(d) of the head-note of GJ and others, that the claimant is likely to be on a stop list and therefore that he would be at real risk of persecution if removed to Sri Lanka.
18. Ground 2 therefore fails. This is determinative of the appeal before the Upper Tribunal. It is not necessary for me to consider ground 1.
19. I have therefore concluded that the judge did not materially err in law.
20. As I said at para 1 above, the judge allowed the appeal on immigration grounds, asylum grounds an human rights grounds (Article 3). The immigration ground must relate to the fact that the Immigration Rules make provision for asylum claims because the judge did not consider any other independent immigration rule.

Decision
The decision of the First-tier Tribunal did not involve the making of any error on a point of law. The Secretary of State's appeal to the Upper Tribunal is therefore dismissed.

Signed Date: 5 August 2016
Upper Tribunal Judge Gill