Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/11409/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Determination issued
on 19 December 2016
on 20 December 2016

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

RAJALINGHAM [T]
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

For the Appellant: Mr T D Ruddy, of Jain, Neil & Ruddy, Solicitors
For the Respondent: Mr A Mullen, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. First-tier Tribunal Judge McGavin by determination promulgated on 19 August 2016 dismissed the appellant's appeal against refusal of recognition as a refugee from Sri Lanka.
2. The appellant's grounds of appeal to the UT may be summarised as follows.
(1). The respondent accepted the appellant's account of detention and persecution by the authorities in 2009 - 2010. The judge failed to apply paragraph 339K of the immigration rules and to take that as indicative of future risk.
(2) - (3). The appellant had to report after his release. The authorities did not lose interest in him. In rejecting his claim that he was detained again in 2014, the judge disregarded the earlier persecution and misunderstood his evidence about why he again fell under suspicion.
(4). The judge overlooked background evidence and country guidance which confirmed that the authorities had taken action against Tamil suspects in a way consistent with the appellant's claims.
(5). The judge thought it adverse that the appellant had not at an earlier stage corrected evidence he gave at screening interview that other detainees had informed on him, which he withdrew in his witness statement. The appellant was not asked about this at substantive interview or at the hearing. This was a failure to give fair notice.
(6) - (7). The judge overlooked or misinterpreted evidence about a crackdown in 2014 when over 60 people were detained.
(8) - (9). The judge did not accept the appellant's explanation of why his wife was not detained. This overlooked that it was only a small minority of women who were detained because of their male family members' LTTE links.
(10). The judge failed to take account of supportive medical evidence of scarring.
(11) In finding that the appellant did not come within category 7 (a) of GJ and others the judge failed to consider paragraph 339K of the rules and the appellant's account of his detention, escape, and the continued interest of the authorities in tracing him.
3. Mr Ruddy identified the appellant's strongest point as emerging from grounds (4) and (6).
4. At paragraph 28 - 30 of her decision the judge said:
Mr Ruddy relied upon COI guidance quoted by the respondent at paragraph 26 of the reasons for refusal letter. It states that a military spokesman told the media on 11 April 2014 that the military had killed Gopi in overnight skirmishes and it was stated that the military had "unleashed a terror and intimidation campaign in the North, detaining 60 people ?". Mr Ruddy stated that this was "around the same time" the appellant claimed to have been detained. I do not consider this argument has much weight for the following reasons.
The appellant claims to been arrested in March 2014, a month before Gopi was killed. The COI guidance ? dated 28 August 2014 ? footnoted in the reasons for refusal letter states at paragraph 2.2.8 that the 60 people were arrested in early April 2014.
There do not appear to be many correlations between the appellant's claimed arrest and the country information?
5. The reference to the refusal letter seems to be paragraph 34, which quotes a passage from the guidance and footnotes it to paragraph 2.2.8. The passage quoted does not refer to 60 arrests or pin their dates to early April 2014. It is cited for purposes of assessing whether the authorities would have taken an interest in the appellant's wife.
6. The respondent's bundle prepared for the FtT includes at pp. H1 - H3 parts of the guidance, from 2.2 - 2.2.2. and then from 2.2.19 -2.2.20. It does not include 2.2.8.
7. Mr Ruddy advised that it became apparent at the FtT hearing that the respondent had not supplied all parts of the guidance cited. He provided the judge with a further excerpt which included 2.2.4, which is also attached to the grounds of appeal to the UT. That paragraph quotes from a news source, the World Socialist Website, which on 16 April 2014 reported the military's claim to have killed on 11 April Gopi and others who were trying to revive the LTTE, and went on:
Since early March, the military has unleashed a terror and intimidation campaign in the north, detaining over 60 people ?
8. Mr Ruddy submitted that the judge fell into an error about the timing of events which misled her as to the likelihood of the appellant's account, and that it was plainly material, being the first reason given for finding that part of the argument for the appellant not to have much weight.
9. Mr Mullen acknowledged in course of debate that the judge did appear to have gone wrong on a chronological point. He submitted that the detentions recorded in March seemed to have nothing directly to do with the appellant's claims about being linked to Gopi, who was killed in April; that there was a very long way between Gopi's scene of operations and the appellant's locality; and that the appellant had only a minor and historic link to the LTTE. Taking the judge's slip out of the mix, there were remaining good reasons, some of which were unchallenged, for dismissing his appeal, and the decision should stand.
10. I reserved my decision.
11. The timing of the appellants' claimed re-detention did not reveal inconsistency with the chronology of the background evidence in the way the judge thought. The decision might well have gone the same way in any event, and I have not been persuaded that any of the other reasons are flawed; but it plainly made a material contribution to the outcome. I do not think the decision safely survives its excision.
12. Parties agreed that on that view, the proper outcome would be a rehearing in the FtT.
13. The determination of the First-tier Tribunal is set aside, other than as a record of what was said on that occasion. None of its findings are to stand. The nature of the case is such that it is appropriate in terms of section 12(2)(b)(i) of the 2007 Act and of Practice Statement 7.2 to remit the case to the FtT for a fresh hearing.
14. The member(s) of the FtT chosen to consider the case are not to include Judge McGavin.
15. No anonymity direction has been requested or made.

19 December 2016
Upper Tribunal Judge Macleman