Tribunal decisions

The decision

UPPER Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/13019/2015

THE IMMIGRATION ACTS

Heard at: Field House
Decision and Reasons Promulgated
On: 8 November 2016
On: 6 December 2016

Before

LORD BANNATYNE
(SITTING AS A JUDGE OF THE UPPER TRIBUNAL)
DEPUTY UPPER TRIBUNAL JUDGE MAILER

Between

secretary of state for the home department
Appellant
and

K K
(anonymity direction CONTINUED)
Respondent

Representation
For the Appellant: Mr C Avery, Senior Home Office Presenting Officer
For the Respondent: Miss K Reid, counsel, instructed by Jacobs and Co Solicitors

DECISION AND REASONS
1. We continue the anonymity direction made. This direction is to remain in place unless and until this Tribunal or any other appropriate court, directs otherwise. As such, no report of these proceedings shall directly or indirectly identify the appellant or any member of his family. Failure to comply with this direction could amount to a contempt of Court.
2. We shall refer to the appellant as "the secretary of state" and to the respondent as "the claimant."
3. The secretary of state appeals with permission against the decision of First-tier Tribunal Judge Onoufriou who allowed the claimant's appeal for asylum, in a decision promulgated on 24 August 2016.
4. It was common ground that the claimant is a national of Sri Lanka, born on 10 June 1986. His application for asylum was refused by the secretary of state on 20 October 2015. He claimed that on return to Sri Lanka he would face mistreatment on account of political opinion, having actively assisted the LTTE. His claimed activities are set out in detail at paragraphs [3-5] of the decision.
5. Judge Onoufriou heard evidence from the claimant's brother, Thangaraaj Gopalakrishnan, who produced his French passport and ID. The registration number on his ID was the same as that set out in the list of proscribed groups and wanted persons in Sri Lanka. This evidence was produced in the claimant's bundle of documents, which also confirmed that he was living in France. When cross-examined, Mr Thangaraaj was unable to produce evidence as to why he was granted refugee status in France. He confirmed that he did not know what his brother's political activities were in Sri Lanka [19].
6. Judge Onoufriou concluded that the claimant's alleged involvement with the LTTE had been fabricated for the reasons set out at [43-44]. This included the timing of his asylum claim, made when his immigration status in the UK had become precarious. He found at [46] that in those circumstances, he did not fall within any of the categories of risk set out in headnote 7 of GJ and Others (Post Civil War; Returnees) Sri Lanka CG [2013] UKUT 319.
7. He considered at [42] whether "?..the fact that he is the brother of Thangaraaj who is on the wanted list, in itself puts him at risk". He had regard to paragraph 2.2.2 of the 2014 COI, which referred to the report of the Bar Human Rights Committee of England and Wales, that the focus of the investigations by the Sri Lankan authorities is on the identities of former cadres, their roles and place in the command structure, and hierarchy of the LTTE as well as their family connection (the Judge's emphasis).
8. He recorded that the Home Office Presenting Officer 'conceded' that the claimant and Thangaraaj are indeed brothers. He found that he wound therefore clearly be of interest to the Sri Lankan authorities as the brother of a very high profile LTTE member who is on the wanted list and who is identified as a member of the diaspora working towards destabilising the Sri Lankan state. The wanted list refers to Thangaraaj's registration number on his French ID card and therefore he is clearly one and the same person [42].
9. After taking into account GJ and Others and the two COI reports, he found that the claimant is likely to be at risk on return to Sri Lanka on account of his connection with Thangaraaj [42-46].
10. In granting permission to appeal, Upper Tribunal Judge McWilliam found it to be arguable that the Judge did not give adequate reasons for allowing the appeal as he found that the claimant did not come within any of the risk categories identified in GJ and Others (Post Civil War; Returnees) Sri Lanka CG, supra. She also noted that that the basis of the concession recorded at [43] was arguably unclear.
Submissions
11. Mr Avery contended that the Judge failed to apply GJ and Others properly. He erred in considering the claimant to be at risk purely on the basis of his claimed relationship with his brother. That was an unwarranted extension of the risk categories set out in GJ and clarified by MP and Other v SSHD [2014] EWCA Civ 829, where Lord Justice Underhill stated at [50] that the clear message of the Upper Tribunal's guidance in GJ is that a record of past LTTE activism does not as such constitute a risk factor for Tamils returning to Sri Lanka because the government's concern is now with current or future threats to the integrity of Sri Lanka as a unitary state.
12. However, Lord Justice Underhill also went on to state that he did not read paragraph 356(7)(a) of the Tribunal's determination in GJ and Others as prescribing that diaspora activism is the only basis upon which a returning Tamil might be regarded as posing such a threat and thus of being at risk on return. Even apart from cases falling under heads (b)-(d) of paragraph 356(7) there may, though untypically, be other cases (of which MP may be an example) where the evidence shows particular grounds for concluding that the government might regard the applicant as posing a current threat to the integrity of Sri Lanka as a single state, even in the absence of evidence that he or she has been involved in diaspora activism.
13. Mr Avery submitted that the suggestion that the claimant will be perceived to be a threat on account of his association with his brother was inadequately reasoned and irrational, having regard to the Judge's adverse credibility finding of the claimant's claim to have been involved the LTTE, and in view of the Sri Lankan authorities' approach to sophisticated intelligence.
14. On behalf of the claimant, Ms Reid submitted that there has been a reasoned finding regarding the risk that the claimant would face on account of his association with his brother.
15. She referred to the 2014 COI report which noted that the focus of the investigations by the authorities includes the identities of former cadres, their roles and place in the command structure, and hierarchy of the LTTE, as well as their family connections.
16. She accordingly submitted that there would be a risk having regard to the family connection. His brother is on the wanted list of the Sri Lankan government for being involved with the TCC, a proscribed organisation in Sri Lanka. His family connection therefore relates to a brother who has a high profile.
17. Ms. Reid also referred to paragraph 396 of GJ, where the Tribunal set out its conclusions regarding first appellant's appeal. The Tribunal stated that:
"Given the close connections the appellant's family had with Prabhakaran, and his irregular exit from Sri Lanka, we are satisfied that he is a person with what the UNHCR Guidelines describe as "more elaborate links with the LTTE" and that there remains a real risk that he would be of interest on return. In order to obtain a TTD he will be required to complete a form, provide full details of his previous addresses and family members in Sri Lanka, and attend an interview. When he arrives in Sri Lanka the authorities will know everything they need to know about him."
18. Ms Reid noted that in order to obtain a temporary travel document the claimant would be required to complete a form, provide full details of his previous addresses and family members in Sri Lanka, and attend an interview. When he arrives in Sri Lanka the authorities will know everything they need to know about him.
19. Accordingly, the authorities will require him to attend an interview. They will be aware of his family members and that his brother is on a list. He thus fell within the current categories of persons at real risk of persecution or serious harm on return to Sri Lanka, whether in detention or otherwise. This includes 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 - (Ms Reid's emphasis).
Assessment
20. The finding by the Judge that the claimant's brother, Thangaraaj is on a wanted list, has not been disputed.
21. It was also conceded at [42] that the claimant and Thangaraaj are indeed brothers and therefore he clearly would be of interest to the Sri Lankan authorities as the brother of a very high profile LTTE member who is on the wanted list and who is identified as a member of the diaspora working towards destabilising the Sri Lankan state.
22. There has been no challenge to the concession recorded at [42] made by the home office presenting officer to the Judge that the claimant is related to Thangaraaj. In that respect we have had regard to Judge Onoufriou's record of proceedings where he has recorded that the presenting officer stated when making her closing submissions that '?.given the documents produced today it is difficult to maintain that they are no related'.
23. Nor is it disputed that the wanted list refers to his brother's registration number on his French ID card and that he is one and the same person [42]. As already npoted he had regard to the report of the Bar Human Rights Committee of England and Wales referred to at 2.2.2 of COI report (2014) including their family connections. He also took account of GJ Sri Lanka [42], which included the Upper Tribunal's findings at paragraph [396] of GJ.
24. In MP, supra, Lord Justice Underhill stated that even apart from cases falling under heads (b)-(d) in paragraph 356(7) of GJ, there may, though untypically, be other cases where the evidence shows particular grounds for concluding that the government might regard the applicant as posing a current threat to the integrity of Sri Lanka as a single state even in the absence of evidence that he has been involved in diaspora activism.
25. In the circumstances we find that there was a proper basis for Judge Onoufriou's conclusions that the claimant is an individual who is likely to be asked about family members being involved with the LTTE. He found that it was clear from the documentary evidence that his brother is on the wanted list for being involved with a proscribed organisation in Sri Lanka, namely, the Tamil Co-ordinating Committee - the TCC in France. He had been a fund raiser for, and is still active, in the LTTE [30].
26. Having regard to the available evidence, we find that Judge Onoufriou has has properly directed himself and has made sustainable findings of fact.
Notice of Decision
The decision of the First-tier Tribunal did not involve the making of any material error on a point of law. It shall accordingly stand.
Anonymity direction continued.

Signed Date 5 December 2016
Deputy Upper Tribunal Judge C R Mailer