Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/12881/2011

THE IMMIGRATION ACTS

Heard at Field House
Determination Sent
On 10 September 2013
On 4 December 2013

Before

DEPUTY UPPER TRIBUNAL JUDGE G A BLACK

Between

MR JEYARAJAH GANEESHGAN

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms K Akther (Counsel)
For the Respondent: Ms A Everett, Home Office Presenting Officer

RESUMED HEARING - DETERMINATION AND REASONS

1. The appellant whose date of birth is 11 December 1981 is a citizen of Sri Lanka. This is a resumed hearing before me following a decision made that there was an error of law.

Background

2. The appellant was granted leave to remain as a Tier 4 Student Migrant until 16 July 2012. He applied on 1 August 2011 for variation of his leave on the basis that he was entitled to be recognised as a refugee in the United Kingdom. His application was refused by the respondent under paragraph 336 of the Immigration Rules, HC 395 (as amended) on 9 November 2011. In addition it was decided that he would not be granted humanitarian protection and or that he was not entitled to be granted any other form of leave following consideration of his claim under the European Convention for Human Rights. A further decision was taken that he should be removed to Sri Lanka pursuant to directions given under Section 47 of the Immigration, Asylum and Nationality Act 2006.

3. The appellant's appeal was heard before a Judge of the First-tier Tribunal Buckwell on 22 December 2011. Judge Buckwell did not find the appellant's account to be credible and dismissed the appeal on all grounds. An application for permission to appeal was granted by Upper Tribunal Judge B W Dawson.

4. The initial error of law hearing took place before Deputy Upper Tribunal Judge Wood on 13 August 2012. In a decision dated 24 April 2013 he set out his reasons for finding that the judge made a material error of law as follows. He found that the Judge failed to consider, as a discrete issue, the risks to the appellant in the event of his return to Sri Lanka. On all other grounds the First-tier Tribunal decision of 13 January 2012 was upheld and there were no other material errors of law.

5. The matter came before me on 2 May 2013 by way of a resumed hearing to deal with the issue of risk on return. The matter was adjourned pending determination of up-to-date country guidance on Sri Lanka (GJ & others(post civil war returnees) Sri Lanka CG [2013] UKUT 00319) .

The Hearing Before Me

6. An application to adduce new evidence was made by Miss Akther. This evidence was not before the First-tier Tribunal nor raised in any subsequent proceedings or grounds in the Upper Tribunal. Ms Everett opposed the application on the grounds that it was new evidence which had not been tested or subject to scrutiny by the Tribunal and the respondent would require an opportunity to cross-examine.

7. I decided that there were no grounds on which the appellant could now seek to introduce what was effectively entirely new material in a supplementary bundle at the resumed hearing which was to consider the issue of risk on return. There had been no compliance with Rule 15A of the Procedure Rules 2008 and I refused the application.

Submissions
8. As to the substantive issue of risk on return Ms Akther submitted that the appellant was affiliated with the LTTE and that in her view the First-tier Tribunal Judge had not entirely rejected this issue. The appellant may be perceived as being a low level member of the LTTE.

9. She acknowledged that the new country guidance case GJ emphasised risks facing those seeking to revive the LTTE in Sri Lanka and that the authorities were now focused on rooting out the opposition and any separatist movement. The appellant was a Tamil and had relatives in the LTTE. It was likely he would be interviewed in London before the decision was made to issue travel documents. The fact that he had been based in the UK since January 2010 was relevant and in particular the fact that he came from London would be viewed with suspicion. The fact that he would be of interest would be flagged up at the airport, although it was conceded that he would not necessarily be stopped at the airport. He may be followed up later. The authorities now had sophisticated intelligence in place. She submitted that the appellant would appear on the computer " stop" list at the airport which placed him in the GJ risk factors. He would face risks as a failed asylum seeker from the UK.

10. Ms Everett submitted that following GJ there was no risk to the appellant. He was found not to be credible in his claim and the Judge of the First-tier found the evidence given by the appellant that his uncle was in the LTTE was very weak. There was no evidence of any LTTE membership activities or activities in London and as was indicated in paragraph 356 of GJ the authorities with their increasingly sophisticated intelligence were seeking to root out and identify Tamil separatists. There was no evidence that the appellant was a journalist or that there were any factors showing that he faced any risk on return. Simply coming from London as a failed asylum seeker did not amount to a risk factor. There was no evidence to show that the appellant even after arriving in Sri Lanka intended to pursue the Tamil cause.

Decision and Reasons

11. At the end of the hearing I dismissed the appeal.

12. I took into account the submissions made by both representatives with regard to the issue of risk on return to Sri Lanka. I took into account the risk factors now listed in the recent country guidance case of GJ where it is clear that the Tribunal emphasised that the risks were faced by those looking to revive the LTTE/Tamil cause and/or separatism. Having considered all of the evidence before me I find that there is no evidence that the appellant would face any real risk on return. He was found to be lacking in credibility as to the core of his claim and there is no evidence to show that he has been involved in any political activities in the UK and or any involvement either past or present with the LTTE. The suggestion that he would be at risk because of his uncle's activities in the LTTE is not sustainable. I find that the evidence on this issue was indeed very weak. I find that the appellant would be returning to Sri Lanka as a failed asylum seeker Tamil who originally entered the UK as a student. I find no evidence to show that he is involved in any activities or support for Tamil separatism. There is no evidence to show that the appellant's name would appear on any "stop" list. There is nothing to show that he is an individual who is or is perceived to be a threat to the integrity of Sri Lanka as a single State because he is or is 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. I also take into account that the Tribunal in GJ considered that the Sri Lankan authorities were aware that many Sri Lankan Tamils travelled abroad as economic migrants and that almost everyone in the northern province had some level of involvement with the LTTE during the civil war. The emphasis in post-conflict Sri Lanka of 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.

13. The appellant's appeal is dismissed on all grounds.
The original decision made by the First-tier Tribunal shall stand.

Signed Date 27.9.2013
G. Black

Deputy Upper Tribunal Judge G A Black