Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/12925/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 1st March 2017
On 8th March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE GRIMES

Between

Mr PS
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms F Allen, Counsel, instructed by Jein Solicitors
For the Respondent: Mr N Bramble, Home Office Presenting Officer

DECISION AND REASONS

Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

1. The Appellant, a citizen of Sri Lanka, appealed to the First-tier Tribunal against a decision made by the Secretary of State on 12th October 2015 to refuse his application for asylum. First-tier Tribunal Judge Monaghan dismissed the Appellant’s appeal and he now appeals to this Tribunal with permission granted by the Upper Tribunal on 23rd January 2017.
2. The background to this appeal is that the Appellant entered the UK on 8th November 2011 and was granted leave to remain as a student on the basis of a visa issued in Chennai. He applied for asylum on 28th April 2012 when he made an appointment at the Asylum Screening Unit. The basis of the Appellant’s claim is that he was forcibly recruited to the LTTE, that he was arrested and detained and tortured by the Sri Lankan Army, that he left Sri Lanka on his own passport and that he has taken part in Diaspora activities in the United Kingdom.
3. The First-tier Tribunal Judge heard evidence from the Appellant and two witnesses and considered the documentary evidence including a medical report. The judge set out the evidence at paragraphs 13 to 56 and her findings at paragraphs 60 to 68. The judge’s findings are summarised at paragraph 68 where she found:
“In summary therefore I find that the Appellant was recruited forcibly to the LTTE and that he underwent basic training before taking part in some activities behind the frontline assisting fighters. He did not take part in the fighting but may have assisted in making parts for bombs or mines, although he did not plant them. He was at all times a low level member of the LTTE who did not hold any rank. His involvement lasted for no more than six months including his training. He was arrested, detained and tortured by the Sri Lankan Army for an indeterminate length of time but was released either voluntarily by them or because his father paid a bribe. He left Sri Lanka on a student visa. He had little if any difficulty exiting Sri Lanka and travelled on his own passport.”
4. The judge went on to find that the Appellant
“did not take part in any Diaspora activities at all until a date after May 2016. His involvement in the same has been at a very low level consisting of assisting at a sports day and attending one demonstration. Such activities have been designed to enhance his asylum claim given that he has been in the United Kingdom since 2011 without participating in any activities previously. There is little evidence that he is suffering from ongoing psychological trauma. He is not medicated for or currently treated for any mental health problem. He takes occasional over the counter pain relief for aches and pains.” [68]
5. The judge went on to say at paragraph 69 that in light of these findings of fact she was satisfied that the Appellant does not come within any of the categories of persons at real risk of persecution or serious harm on return to Sri Lanka identified in the case of GJ and others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC).
6. The grounds put forward in the application for permission to appeal to the Upper Tribunal made to the First-tier Tribunal and in the renewed grounds to the Upper Tribunal contain a number of contentions in relation to the First-tier Tribunal Judge’s assessment of the credibility of the Appellant’s detention and allegations of a number of errors of fact. Permission to appeal was refused by the First-tier Tribunal but was granted by the Upper Tribunal on the basis that there was an arguable error in relation to the judge’s finding about the Appellant’s alleged detention and ill-treatment.
7. At the outset of the hearing before me Mr Bramble accepted that the First-tier Tribunal Judge had made two material errors of law. Mr Bramble accepted that, having accepted that the Appellant was detained, the judge failed to make any specific finding as to the Appellant’s evidence that he was released on reporting conditions. He accepted that this would be relevant to the assessment of risk in accordance with the guidelines set out in GJ. Mr Bramble also accepted that, although she made negative findings in relation to the evidence of one of the witnesses as to enquiries made about the Appellant since his departure, the judge was silent in relation to the Appellant’s own evidence about this issue. Accordingly, he accepted that the judge failed to make definitive findings as to whether enquiries had been made about the Appellant’s whereabouts since his departure. Mr Bramble accepted that these were material errors.
8. Ms Allen, although acknowledging that the judge had made positive findings in relation to the Appellant’s credibility, contended that the judge had not made clear findings as to the Appellant’s claimed three periods of detention. Ms Allen accepted that there were a number of positive findings that had not been challenged.
9. Given the credibility findings, which had not been challenged, and given the narrow basis for Mr Bramble’s concession Mr Bramble submitted that there were sufficient findings for me to remake the decision on the basis of the findings made by the First-tier Tribunal Judge and the evidence before the First-tier Tribunal. Ms Allen took instructions from the Appellant and confirmed that she too was content to go ahead and make submissions as to remaking the decision on the basis of the evidence before the First-tier Tribunal and the existing findings of fact.
10. In these circumstances and in light of the concession by Mr Bramble I find that the First-tier Tribunal Judge’s decision contains a material error of law in that the judge failed to make adequate findings in relation to the conditions of the Appellant's release from detention and events after his release or to adequately consider the country guidelines in the context of this evidence. I find that, despite the evidence before her, the judge failed to make any findings as to whether any enquiries had been made about the Appellant following his departure from Sri Lanka. These are material errors as they go to the assessment of risk on return. In light of these material errors I set aside the decision of the First-tier Tribunal.
11. However, as there is no challenge to the findings of fact made by the judge I preserve those findings.
12. Although the Appellant’s solicitors had made an application under Rule 15 to adduce further evidence in the event that the First-tier Tribunal Judge’s decision was set aside there was no need to consider that application in light of the approach agreed by the parties.
Submissions
13. Mr Bramble submitted that the issue to be determined was whether the Appellant was released on reporting conditions. He referred to the evidence before the judge as recorded at paragraphs 18 and 19 of the decision based on the Appellant’s asylum interview. He acknowledged that if the Appellant left Sri Lanka without complying with ongoing reporting conditions he could be on a stop list. He accepted that the First-tier Tribunal Judge had found that the Appellant had been detained and tortured. He submitted that the issue to be determined is whether that evidence is sufficient to bring him within the categories of persons at real risk of persecution as set out in GJ.
14. Ms Allen submitted that it had been accepted that the Appellant had been forcibly recruited to the LTTE and that he had been detained and tortured. She referred to the judge’s finding that the Appellant had “given a largely credible account” [61] and that at paragraph 64 the judge had accepted the Appellant’s account of his detention and torture and found him to be a credible witness in respect of that part of his account. She referred to the evidence before the judge as set out in the decision at paragraphs 18, 19, 21 and 35. She submitted that the Appellant said a number of times that he was reporting weekly after his release. She submitted that given the judge’s credibility findings there was no reason not to accept the Appellant’s account of his release and the terms of his release.
15. She submitted that although the Appellant left Sri Lanka on his own passport with the help of an agent the decision in GJ says that the fact that a person can leave without problems on their own passport is not determinative as to whether the authorities have an ongoing interest in that person. She submitted that the issue is the impact upon his return of his departure in those circumstances having failed to comply with reporting conditions. She submitted that this could mean that he would be on a stop list. If he is on a stop list there is a risk of detention at the airport and if he is detained it is likely that he will be tortured. She referred to the Home Office Country of Origin Information Report of August 2016 at paragraph 3.1.5, which states that a person who is known to the authorities is likely to be at risk of persecution. She submitted that this Appellant is known to the authorities as he had failed to comply with reporting conditions.
16. In the alternative she submitted that the Appellant would be on a watch list as a result of his failure to comply with reporting conditions. Although in these circumstances he may get through the airport he is likely to be detained in his home area. In relation to his sur place activities she referred to the judge’s assessment of that evidence at paragraph 67 and, although the judge did not accept all of the Appellant’s evidence or that of the witness, the judge did accept that the Appellant had “attended and assisted our recent sports day held by [the TGTE] and was issued with an identity card valid for one day for the event” and also that he “has attended one demonstration on the basis of two photographs in the bundle”.
17. She submitted that we know from the case of GJ that there are informants within the Diaspora. She submitted that the Appellant had gone further than simply attending activities. The judge accepted that he assisted at an event. She relied on the August 2016 Country of Origin Information Report, paragraphs 6.5.2, 6.5.6 and 6.5.7. She submitted that the Appellant’s accepted activities would be added to his failure to report and would be reflected in the risk to him.
Remaking the Decision
18. The judge set out all of the evidence before her at paragraphs 13-56 of the decision. At paragraph 18 the judge noted that the Appellant said in his asylum interview on 22nd December 2014 that, after his first detention, he had to sign on once per week as a condition of his release. It is noted that after the Appellant's second detention, when he was kept for one day, tortured and then release, he had to sign as before. At paragraph 20 the judge noted that the Appellant claimed that he was arrested again in August 2011 and at paragraph 21 it is noted that after his release he was reporting weekly.
19. The judge recorded the Appellant's cross-examination at paragraph 35 where she noted that the Appellant said that after his release in 2010 (after the first detention) he had to report at a police station. The judge noted that the Appellant said that in August 2011 he was released after four days “with the same reporting conditions as before. He was signing weekly from August 2011 until he left Sri Lanka in November 2011.”
20. It is clear from the Appellant’s own evidence therefore that he was consistent in his claim that he was required to report regularly up until the time he left Sri Lanka. The judge accepted that the Appellant was arrested, detained and tortured. The judge accepted that the Appellant was largely credible and there is no specific adverse credibility finding in relation to the Appellant’s own evidence. Any doubts expressed by the judge are in relation to the lack of evidence from the Appellant’s father [65] and the evidence of the Appellant’s witnesses [66] and [67]. However, the Appellant’s own evidence was not significantly crticised. In view of the fact that the Appellant has been consistent in his claim that he was required to report I accept this part of the Appellant’s claim.
21. I consider the case of GJ and the guidelines in relation to determining the categories of people at real risk of persecution in Sri Lanka. I note that the guidance given by the Tribunal is summarised in the head note as follows:

“(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.
(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.”
22. Paragraph (7)(d) of the guidance in the head note is relevant in this case. A person whose name appears on a computerised stop list, which is a list of those against whom there is an extant court order or arrest warrant would be stopped at the airport and handed over to the appropriate authorities. I accept that in light of the fact that the Appellant left Sri Lanka without authority whilst being required to sign weekly may mean that he appears on such a stop list.
23. In addition I note that paragraph 8 refers to activities within the Diaspora. Although the Appellant has not undertaken significant activities he has assisted with the TGTE at a sports day and attended a demonstration. This may well have been reported to the Sri Lankan authorities and may, combined with his past history, indicate to the Sri Lankan authorities a present risk to the Sri Lankan state.
24. Further, paragraph 9, which relates to the maintenance of a watch list, may be relevant in this case. Therefore, even if the Appellant is not detained at the airport, his history including the fact that he left whilst being subject to reporting conditions combined with his Diaspora activities may well place him at real risk of detention by the security forces.
25. Therefore, applying the guidance in GJ to the evidence and the findings of fact made by the First-tier Tribunal Judge and the additional findings of fact I have made I am satisfied that this Appellant has established that there is a real risk that he faces persecution in Sri Lanka.
Humanitarian Protection
26. I find that, for the reasons above, the appellant has established that he would face a real risk of suffering serious harm in Sri Lanka.
Articles 2 & 3
27. In this appeal Articles 2 and 3 stand or fall with the asylum claim. In light of my findings above I am satisfied that if he returns to Sri Lanka the appellant may be subjected to torture, inhuman or degrading treatment or punishment or face death in breach of Articles 2 or 3 of the ECHR.

Notice of Decision

The decision of the First-tier Tribunal contained a material error of law. I set it aside and remake the decision.

The appeal is allowed on asylum grounds, humanitarian protection grounds and on human rights grounds.

Signed Date: 6 March 2017

Deputy Upper Tribunal Judge Grimes

TO THE RESPONDENT
FEE AWARD

As no fee is payable there can be no fee award.

Signed Date: 6 March 2017

Deputy Upper Tribunal Judge Grimes