Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/12499/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 9 September 2016
On 10 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE RAMSHAW

Between

CHRISTY [S]
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr J Chipperfield, Counsel, instructed by Jeya and Co.
For the Respondent: Mr E Tufan, Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. This is an appeal by the appellant against a decision of the First-tier Tribunal Judge D Ross who, in a determination promulgated on 9 July 2016, dismissed the appellant's appeal.

Background
2. The appellant is a national of Sri Lanka who was born on 9 April 1982. He first entered the UK as a student with a visa valid until 31 October 2009. His visa was extended until 28 August 2011. He returned to Sri Lanka on 8 June 2010 and returned to the UK on 2 July 2010. On 21 June 2011 he applied for leave to remain in the UK on the basis of his Article 8 rights in respect of his wife. That claim was refused by the Secretary of State. The appellant then made three other claims to remain in the United Kingdom on the basis of his relationship with his wife. These were all refused. On 23 March 2015 he claimed asylum.
3. The Secretary of State refused the appellant's asylum claim because she did not accept that the appellant had been arrested and detained by the Sri Lankan authorities. It was also not accepted that the Sri Lankan authorities have any interest in the appellant or that the appellant had taken part in any activities or joined any organisations in the UK. The Secretary of State also considered the appellant's claim that a return to Sri Lanka would breach the appellant's rights to respect for family and private life. The Secretary of State considered that there would not be very significant obstacles to the appellant's integration into Sri Lanka.
4. The appellant appealed against the Secretary of State's decision to the First-tier Tribunal.
The Hearing before the First-tier Tribunal
5. The First-tier Tribunal, in dismissing the appellant's appeal, considered that it was not likely that the authorities in Sri Lanka would regard the appellant as presenting a risk with regard to his activities whilst in the UK. The First-tier Tribunal did not accept that the appellant was detained in 2010. The First-tier Tribunal considered that there were no significant obstacles to his reintegration in Sri Lanka bearing in mind that members of his family lived there and he had lived most of his life in Sri Lanka and that it would be proportionate to remove the appellant from the United Kingdom.
The Appeal to the Upper Tribunal
6. The appellant applied for permission to appeal to the Upper Tribunal and on 3 August 2016 Judge Saffer granted the appellant permission to appeal. The grant of permission sets out that it is arguable that the judge has not made a specific finding regarding a key component of the appellant's claim, namely whether he was detained and ill-treated in 2005. The grant of permission also indicates that it is arguable that the judge appears to reject the reason for sur place activity rather than the impact on the Sri Lanka authorities' perception of the appellant.

The Appeal to the Upper Tribunal
Summary of Submissions
7. The grounds set out that there are no findings in the determination with regard to the 2005 arrest and detention. Further, there are no reasons given as to, if the judge did not accept those findings, why the judge rejected that aspect of the appellant's claim. Reference is made to paragraph 29 of the First-tier Tribunal decision where the judge states "I do not accept that he was detained in 2010 on his return, because I do not consider he is of any interest to the authorities". It is asserted that the appellant's detention in 2005 was relevant to the overall assessment of the appellant's risk on return having regard to his profile and how he is likely to be perceived by the Sri Lankan government. Mr Chipperfield submitted that the failure to make any finding at all on the 2005 incident amounts to a material error of law. He asserted that it is likely that the government has records and that this would affect the appellant's profile.
8. Mr Chipperfield submitted that much of the appellant's evidence has not been considered by the judge. He referred to paragraphs 23 to 26 of the appellant's witness statement and submitted that there are no findings by the judge in relation to the evidence of the appellant. In the determination he submits that the judge sets out in very brief terms the appellant's evidence but paragraph 22 is the only substantive consideration and that it is wholly inadequate.
9. It is asserted that the judge does not explain why he takes the view that it is not credible that the appellant would have been prepared to take a risk in returning to Sri Lanka given that the war in Sri Lanka had ended and that there had been a significant change in the country situation since the appellant had left in October 2006 and that the appellant himself had never had any actual involvement with the LTTE. Mr Chipperfield referred to the appellant's witness statement where it sets out the reason that he did not travel was because he feared he could be arrested prior to 2010. He submitted that the appellant gave adequate reasons and plausible reasons as to why he went back in 2010. He also submitted that the judge's finding as to the likelihood that the appellant would make such a trip must be based only on the factors considered by the appellant not on factors that the judge considered would be influential.
10. It is also submitted that the judge erred in his treatment of the appellant's evidence relating to his delay in claiming asylum. It is asserted that the judge finds that the appellant has not been consistent in his explanation as to why he claimed asylum and why he did not realise that he could claim asylum until 2015. The appellant seeks permission to rely on extracts from Counsel's Record of Proceedings from the appeal hearing. These are set out in full in the grounds of appeal. Mr Chipperfield referred to paragraph 39 of the appellant's witness statement where it sets out that the appellant did not claim asylum initially because he was hoping that things would improve.
11. The grounds submit that the judge erred in his treatment of the expert's psychiatric report. It is also asserted that the First-tier Tribunal Judge's finding that the symptoms were incapable of objective confirmation failed to take into account the following evidence contained within the expert report - page 25(a)(b).
"He showed a classical reaction that is associated with post-traumatic stress disorder when describing his mistreatment despite his flat mood and self-control. This must be seen as highly significant as it is extremely difficult to simulate this reaction.
12. It is asserted that the judge in essence takes the view that little weight should be attached to the diagnosis of PTSD made by the psychiatric report because he has based his diagnosis on information given to him by the appellant. It is submitted that this approach to the expert's report was inadequate and incorrect. The judge has unfeasibly failed to take into consideration the fact that the expert's opinion has clearly been reached not solely from information given to him by the appellant but also from his own observations of the appellant's presentation and demeanour during the course of the assessment. Reliance is placed on the case of AM (Angola) [2012] EWCA Civ 521 which was concerned with whether or not there was independent evidence of torture."
"As the judge himself rightly stated, Mrs Kralj believed the claimant. That belief, following an expert examination and assessment also constituted independent evidence of torture. Mrs Kralj's belief was her own independent belief, even if that was in part based on AM's account. However, the judge was mistaken to suggest that such belief was merely as a result of taking everything she said to face value. A fair reading of her reports plainly went very much further than that."
13. The grounds further assert that the judge erred in his consideration of the evidence relating to the political activities in the diaspora. Mr Chipperfield submitted that whether genuine or not, the appellant's involvement in sur place activities are relevant in respect of the perceived impact. He submitted that the other evidence submitted by the appellant goes beyond joining the BTS in 2015. He referred to paragraphs 34 and 35 of the appellant's witness statement wherein the appellant lists some of the activities going back to 2007. He submitted that the appellant's political views are against the unitary government of Sri Lanka. He asserted that the judge has not rejected the evidence, he has failed to make any findings in relation to that evidence. Mr Chipperfield submitted that the judge has clearly not considered the appellant's evidence that he was involved in diaspora activities prior to 2015. He submitted that the failure to consider the earlier involvement goes to the appellant's general credibility. He submitted that it is the perceived picture that matters and that whatever the appellant's motivation it does not remove the need to assess the danger from what the authorities might perceive the activities of the appellant to be.
14. Mr Tufan submitted that there were significant credibility issues in this case. He submitted that the appellant did not appear to know about asylum until 2015. This, he indicated, was extraordinary given that asylum is commonly in the news and if the appellant was involved in the Sri Lankan comminute it would have been a topic that was discussed. He submitted that the appellant had made a significant number of previous applications and that these were relevant to the consideration of the appellant's credibility with regard to his asylum claim. Mr Tufan indicated that he accepted that at first blush the judge does not appear to have dealt with the claim to have been detained in 2005. He referred to paragraph 21 of the decision where the judge deals with the claim to have been involved in an incident in 2002. Mr Tufan then referred to paragraph 22 and suggested that the judge must have been considering the appellant's claim to have been detained and tortured in 2005. He submitted that in light of the credibility finding on other issues that this is not a material error of law if the judge failed to make such a finding. He submitted that in paragraph 6 of the decision the judge has set out the reasons that the appellant gave as to why he went back to Sri Lanka in 2010. No mention is made that the reason being because the war had ended. In any event Mr Tufan submitted that in 2010 the risk was perhaps at its highest as members of the LTTE were being rounded up. He submitted that there is no ring of truth to the explanation given now as to why the appellant felt safe to go back in 2010. With regard to the medical reports he submitted that the weight is to be placed on them is a matter for the judge. He submitted that even if there is evidence of sur place activities prior to 2015 none of the evidence demonstrates that the appellant is in a leading position. He referred to paragraphs 335, 336 and 351 of GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) ('GJ') and submitted that it is clear that attendance alone at demonstrations does not present a real risk of any interest being shown by the authorities. He submitted that the appellant does not come within the categories of persons at risk in GJ.
15. Mr Chipperfield in reply submitted that if the reference in paragraph 22 is to the appellant's claim to have been detained in 2005 it is not sufficient. The judge has failed to engage with the issues.
Discussion
The 2005 arrest and detention
16. In reaching his findings the First-tier Tribunal judge set out:
"21. I do not consider that the appellant's evidence has been consistent and credible. He states that he was arrested in Columbo (sic) and tortured, He was then released on condition that he remain in Columbo and then claims that he went to Jaffna, and that he passed through checkpoints on the way without any difficulty. He says that the reason why he went to Jaffna was to see his grandmother who was ill. I consider that this it is unlikely that if he had been arrested and tortured that he would have flagrantly ignored the conditions of his release in the way he has described.
22. Similarly, if he had been detained and tortured in the way he describes, I do not consider that it is credible that he would return to Sri Lanka in June 2010 to get married, bearing in mind that his wife was in the UK as well. Although the war was over by that time. I do not consider that this is a risk he would have been prepared to take, if his account is true.
17. The judge considered the appellant's claim to have been arrested and detained in 2010 at paragraph 29.
18. These are the only paragraphs where specific findings are made about the appellant's claims regarding arrest, detention and torture. The judge clearly found the claimed arrest, detention and ill treatment in 2002 to lack credibility. The judge set out in paragraph 5 the evidence from his interview regarding the claimed detention in 2005. He also recorded that the appellant had provided a witness statement reiterating his case (paragraph 11). It is possible that the judge may have been referring to the 2005 detention at the beginning of paragraph 22. However, the judge does not appear to have made specific findings in relation to the appellant's claim that he was arrested, detained and tortured in 2005. This may not amount to a material error of law. As Mr Tufan submitted the interest of the Sri Lankan authorities is now focused on those seeking to destabilise the Sri Lankan State and who are working for Tamil separatism. Detention and torture in 2005, even if accepted, might not give rise to a risk on return today.
19. The headnote to GJ sets out the current risk categories:
(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) Journalists (whether in print or other media) or human rights activists, who, in either case, have criticised the Sri Lankan government, in particular its human rights record, or who are associated with publications critical of the Sri Lankan government.
(c) Individuals who have given evidence to the Lessons Learned and Reconciliation Commission implicating the Sri Lankan security forces, armed forces or the Sri Lankan authorities in alleged war crimes. Among those who may have witnessed war crimes during the conflict, particularly in the No-Fire Zones in May 2009, only those who have already identified themselves by giving such evidence would be known to the Sri Lankan authorities and therefore only they are at real risk of adverse attention or persecution on return as potential or actual war crimes witnesses.
(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.
20. It is the appellant's case that he has never been involved with the LTTE. It has not been suggested that there is an extant arrest warrant. The appellant remained in Sri Lanka for 18 months after his claimed detention in 2005.
21. The appellant claims that he returned to Sri Lanka in 2010 and, as the judge recorded, this provides an opportunity to test whether or not the appellant is at risk of persecution on return to Sri Lanka. In his witness statement and in his interview the appellant claims that he was asked about his activities and involvement with the LTTE in London. This would be consistent with the objective evidence of the current interest of the Sri Lankan authorities. There was no suggestion that the authorities had arrested him as a result of any previous arrests or detentions or that any reference was made to them by those questioning the appellant. The focus according to the appellant was his activities in the UK. He claims his wife (who had returned to Sri Lanka with him from the UK) was also detained at the airport being released on the same day - she had not had any problems in Sri Lanka before she left in 2006. His wife's claim for asylum is (according to the appellant) based on the more or less the same persecution that the appellant claims he suffered in 2010.
22. The appellant then remained in Sri Lanka for 3 weeks during which time he married his wife. He left Sri Lanka passing through check points using his own passport at the airport without the involvement of an agent. He did not claim to have been ill-treated in detention. Although the judge did not accept that the appellant had been detained in 2010 the judge considered that even on the appellant's own case 'there is no reason to believe he is of interest to the authorities' (paragraph 29). The judge had the benefit of hearing all the evidence and being able to assess the evidence given directly by the appellant in this case.
23. The grounds of appeal assert that the appellant's claim to have been detained and tortured in 2005 was materially relevant when considering the plausibility of the appellant's claim to have been questioned and detained on return in 2010. The question for the judge was whether the appellant would be at risk on return to Sri Lanka today. The failure to make a specific finding on the 2005 claimed arrest, detention and torture is not a material error of law as it would not have made a difference to the outcome because the judge considered that the appellant was not at risk even on the appellant's own case that he was detained in 2010.
The credibility of the return in 2010
24. The judge found
"22. Similarly, if he had been detained and tortured in the way he describes, I do not consider that it is credible that he would return to Sri Lanka in June 2010 to get married, bearing in mind that his wife was in the UK as well. Although the war was over by that time. I do not consider that this is a risk he would have been prepared to take, if his account is true."
25. The judge recorded the evidence given in interview (paragraph 6):
"? He was also asked how it was that he returned to Sri Lanka to get married in 2010 when he had been repeatedly arrested and tortured. He said that his mother was elderly and his father would have difficulty getting to the wedding in the UK, in addition his wife's mother was ill ?"
26. I consider that the judge has explained why he did not consider it credible that the appellant would return to Sri Lanka. He took into account the explanation that the war was over by that time but weighed that with the explanation that the reason for return was to get married. Having considered that the appellant and his wife were both in the UK and in light of the claims of several periods of detention and torture the judge found that it was not credible that the appellant would have taken such a risk. However, I accept that the judge ought to have given significant weight and viewed the credibility in light of the factors considered by the appellant not on factors that he considered would be influential. I do not consider this to be a material error of law because it would not have made a material difference to the outcome as the judge considered, in paragraph 29, that even on the appellant's claim to have been detained in 2010 he was not at risk.
The delay in claiming asylum
27. The grounds assert that the judge errs by finding the appellant's evidence inconsistent. Specifically, it is asserted that at no point in the appellant's evidence does he suggest that he did not know about asylum before 2015, simply that he did not know much. The judge found that the appellant's account was inconsistent because he gave a reason for not claiming asylum for very many years as being that 'he did not know much about asylum' but 'then however stated that he had spoken to people about asylum but they had stated that he could be sent back'. This is the inconsistency - not whether or not he did not know he could claim until 2015 asylum. The grounds acknowledge that the evidence was that he did not know much about asylum. This ground of appeal has no merit.
The psychiatric report
28. It is asserted that one of the key reasons that the judge advanced for not attaching much weight to the psychiatric expert's report is because the symptoms of PTSD are incapable of objective confirmation in the sense that the symptoms are described by the patient. It is submitted that the judge erred by dismissing the opinion of the expert on the grounds that this was based on information provided by the appellant. Undoubtedly this was one factor but the judge also considered this evidence in light of the fact that the appellant had not sought treatment until 2015 some 9 years after he fled from Sri Lanka and after he had claimed asylum. It is a matter for a judge as to what weight is to be placed on the evidence in light of all the evidence and his assessment of the claim. Considering the evidence overall the conclusion of the judge that he should not give the report much weight was conclusion that he was entitled to reach.
Evidence of the appellant's activism in the diaspora
29. It is not clear that the judge has fully engaged with the evidence that the appellant claims to have attended demonstrations over a number of years. In his witness statement of 8/6/2015 the appellant refers to a number of processions he claims to have participated in between 2007 and 2014. The appellant only 'joined' the BTF in 2015 after he claimed asylum and clearly the judge was entitled to find that the sudden interest in supporting the BTF as an organisation was an attempt to bolster his claim. The judge has not made findings in relation to the appellant's claim to have participated in processions since 2007. The judge does appear to have considered that the appellant has only claimed to have been involved in recent activities (paragraph 26). He has not therefore engaged with the evidence and, if he has done so but rejected the evidence, has not given any reasons for so doing. I do not consider however that this is a material error of law for the reasons given below in relation to risk on return as a result of diaspora activities.

Assessment of risk on return
30. It is asserted that the judge erred because he stated that the Upper Tribunal (in GJ) considered that attendance at demonstrations in the diaspora alone is not sufficient to create a real risk on return. The judge then found that 'even if the appellant had been mistreated in Sri Lanka which I do not accept, there would not be a real risk of further mistreatment on return'. As the appellant points out if it were accepted that the appellant had been mistreated on return then it would not be the case that there had been attendance at demonstrations in the diaspora alone. It is asserted that the judge has failed to consider that the appellant's attendance at demonstrations could well be of significance when viewed in the context of his past record of detention and mistreatment.
31. Although the judge has not expressed the test in GJ as clearly as he might have, there is no material error of law. In GJ the conclusion reached regarding diaspora activities was:
"? Our overall conclusion regarding diaspora activities is that the GOSL has sophisticated intelligence enabling it to distinguish those who are actively involved in seeking to revive and re-fund the separatist movement within the diaspora, with a view to destabilising the unitary Sri Lankan state. Attendance at one, or even several demonstrations in the diaspora is not of itself evidence that a person is a committed Tamil activist seeking to promote Tamil separatism within Sri Lanka. That will be a question of fact in each case, dependent on any diaspora activities carried out by such an individual."
32. Paragraph 8 of the headnote sets out:
"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."
33. At Paragraph 7(a) of the headnote:
"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." (emphasis added)
34. The test (as relevant to this appellant) is whether or not the appellant is perceived as indicating a present risk to the unitary Sri Lankan state as a result of his past history and/or current diaspora activates. The judge had considered the risk on return in light of the current categories of risk as set out in GJ. He notes in paragraph 28 that '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 state. I do not consider that it is at all likely that the authorities would regard the appellant as presenting such a risk'. The judge arrived at this conclusion having considered all the evidence. The appellant was never involved with the LTTE. On the appellant's evidence his involvement in diaspora activities at its highest involves participating in a number of processions. The judge found that the appellant 'has virtually no role in relation to post-conflict Tamil separatism'. The appellant clearly does not play a significant role in diaspora activities. Therefore, the judge was entitled to reach the conclusion that the appellant was not at risk on return even if he had been mistreated in the past (which the judge did not. in any event. Accept - a finding that, as I set out above, was open to him).
35. There was no material error of law in the First-tier Tribunal decision.
36. There was no appeal against the judge's findings on Article 8.
Notice of Decision
The appeal is dismissed. The decision of the Secretary of State stands.
No anonymity direction is made.

Signed P M Ramshaw Date 9 October 2016

Deputy Upper Tribunal Judge Ramshaw