Tribunal decisions

The decision

IAC-FH-CK-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/12557/2015

THE IMMIGRATION ACTS

Heard at Civil and Family Court Centre, Liverpool
Decision & Reasons Promulgated
On 27 January 2017
On 17 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE LATTER

Between

SS
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms R Chowdhury, Counsel, instructed by Lawrence Lupin Solicitors
For the Respondent: Mr C Bates, Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal by the appellant against a decision of the First-tier Tribunal (Judge Lloyd-Smith) dismissing his appeal against the respondent's decision made on 17 September 2015 refusing his application for asylum.

Background

2. The appellant is a national of Sri Lanka born on 7 February 1984. He arrived in the UK on 22 March 2015 having travelled by plane from Colombo transiting in an Arab country. He claimed asylum on arrival. The basis of his claim was that he had been forcibly recruited into the LTTE in December 2007. He was trained for about 45 days during which time he was shown how to use a rifle. Following an incident when some leaders and those at the front were killed, the appellant was asked to fight. He and two friends abandoned their uniforms and boarded a bus to Batticoloa. The bus was stopped at an army checkpoint and all the young men were asked to get off. They were questioned as to whether they were members of the LTTE. One of his friends was killed as he still had his cyanide capsule around his neck, whereas the appellant and his other friend were arrested and detained. The appellant was badly beaten in the detention camp and described being tortured and sexually assaulted.

3. In 2009 he was moved to a different camp where he was taught how to repair vehicles. He remained in detention until the beginning of 2015 when he was asked by one of the Tamil-speaking army guards whether anyone in his family could give money to secure his release. He said that his mother could. She was contacted and borrowed some money. Whilst out of the camp to repair a vehicle, the appellant received a sign from the man arranging his escape and he ran from the scene. He got into a vehicle where he was given clothes to change into and taken to Colombo. A couple of months later he took a flight to the UK, his travel being arranged by an agent.

4. The respondent accepted that the appellant had been recruited forcibly into the LTTE and had subsequently deserted. However, his claim that he was arrested and detained was rejected and that, necessarily in the light of that finding, it was not accepted that he had escaped from detention. The respondent was not satisfied, taking into account the country guidance in GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 319, that the appellant would be at real risk of persecution on return.

The Hearing before the First-tier Tribunal

5. At the hearing before the First-tier Tribunal the appellant gave oral evidence and relied on a medical report from Dr Cohen, who had examined him on 11 April 2016. Her report identified the injuries and scarring evidence on the appellant's body and recorded that he disclosed severe sexual violence, found it very difficult and distressing to disclose this information and could not go on to give further details. She found that the scars on his forehead were highly consistent with being inflicted by blunt trauma, although accidental causation was possible but unusual, the scars to his knee were highly consistent with forced kneeling during beatings and blows with a metal rod, an injury to his left wrist was highly consistent with abrasion from wire restraints and the scar to his left buttock was typical of a stab wound.

6. The judge accepted the findings of the medical report and said that she had little difficulty in accepting the appellant's account of his experiences in detention as credible. The judge then went on to consider whether there was a risk on return for the appellant. In this context, she said: "I trouble to accept that he would have been detained from 2008 to 2015 given the changes that have occurred and the expert evidence relating to the length of rehabilitation for most former LTTE members." This is a reference not only to the background evidence but also to an expert report from Mr D Harris. The judge said that, given the appellant's limited participation in the LTTE she saw little need in there being any ongoing interest in him such as to require such a lengthy rehabilitation period, particularly as during this time he had failed to learn the Sinhala language, which was one of the purposes of the scheme. She noted that Mr Harris had attempted to address this in his report but the sources he relied on appeared to be local newspaper articles as opposed to what was reported in Human Rights Watch or Amnesty Reports. She was not satisfied that the appellant would be an individual with a profile which could lead to him being at risk of further adverse attention from the Sri Lankan authorities.

7. The judge referred to the risk categories set out in GJ and particularly to the fact that if a person was detained by the Sri Lankan security services, there remained a real risk of ill-treatment or harm requiring international protection but it was her view that the appellant would not be at such risk.

The Grounds and Submissions

8. In the grounds it is argued that the judge erred in law by failing to make clear findings of fact about whether the appellant had been detained until 2015 as he claimed and on whether he had escaped from detention. This were fundamental parts of the appellant's case because, if he had been detained for such a long period, this would indicate that there was a suspicion that he had a greater involvement with the LTTE than was the case and, if he had escaped, that showed he was someone who was reasonably likely to face further detention on return. The failure to make clear findings meant that there had not been a proper assessment of whether the appellant would be at risk on return. Ms Chowdhury adopted these grounds in her submissions, arguing that the lack of findings as to the appellant's claimed escape was a fundamental omission which meant that a significant factor in his account of events had not been properly considered.

9. Mr Bates accepted that there was no explicit finding on the length of the appellant's detention but argued that it was implicit that the judge did not accept that he had been detained until 2015 and it must follow that in these circumstances she had not accepted the evidence that he had escaped at that stage from detention. He adopted the submission in the rule 24 response that even if his "escape" was facilitated by the guard on the payment of a bribe, that would itself indicate that the appellant was not in reality of any ongoing interest to the authorities. In summary, he submitted that the judge had reached sustainable conclusions on the evidence before her.

Assessment of whether the Judge erred in Law

10. I am satisfied that the judge erred in law by failing to make a clear finding on whether the appellant had been detained as he claims until July 2015 and secondly, whether he had escaped from detention. The judge accepted in the light of the appellant's evidence and the medical evidence that he had been detained and severely ill-treated whilst in detention but, when considering whether there would be a risk on return, she said that she was troubled to accept that he would have been detained from 2008 to 2015. She took the view that, given the appellant's limited participation in the LTTE, she saw little need in there being any ongoing interest in him such as to require such a lengthy rehabilitation period. The expert evidence from Mr Harris was to the effect that there were rehabilitation centres where a large number of ex-LTTE cadres were being held and that active rehabilitation programmes were continuing alongside periodic releases from detention. He said at para 3.1.1 of his report that the evidence supported the appellant's claim that he was still in detention and undergoing a rehabilitation programme in 2015 at the time of his escape.

11. Mr Bates submitted that the judge had not accepted that the appellant had been detained until 2015 and it must logically follow that she did not accept the evidence relating to his escape at that time. However, it is not clear to me whether the judge was in fact making a finding that she was not satisfied to the lower standard of proof that the appellant's detention had continued to 2015. The phraseology she used suggests that she regarded this as evidence falling within the category identified in Karanakaran [2000] Imm AR 271 as evidence to which she was willing to attach some credence even if she could not say that it was probably true. Further, in the judge's assessment of risk on return, she failed to deal expressly with the appellant's assertion that he escaped in 2015 with the cooperation of one of the guards. It is clear from para 3.2.5 of Mr Harris' report that he regarded the question of an escape as significant and as, potentially at least, leading to the prospect of the appellant being detained on return when he would fall within one of the risk categories identified in GJ.

12. Therefore, in the light of the failure to deal expressly with two important parts of the appellant's account, the length of his detention and whether he escaped from detention it is not clear on what factual basis the risk to the appellant was being considered. In the light of Dr Harris' report and the country guidance, this is not a case where it can be said that even if the appellant's account had been accepted in full, that would have made no material difference to the outcome of the appeal.

13. In these circumstances, this is a case where the decision must be set aside and remade. Both representatives accepted that the proper course was for the appeal to be remitted to the First-tier for further consideration. The judge's findings that the appellant had been detained and ill-treated whilst in detention are to be preserved. Further findings will need to be made on the length of the detention, whether the appellant escaped from detention and what the implications of those findings are when assessing the risk on return.

Decision

14. I am satisfied that the First-tier Tribunal erred in law and the decision is set aside. The appeal is remitted to the First-tier Tribunal to be heard at Manchester before a different judge to reassess the issue of risk on return in the light of further findings on the issues identified above. The anonymity order made by the First-tier Tribunal remains in force until further order.

Signed H J E Latter Date: 13 February 2017

Deputy Upper Tribunal Judge Latter