Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/13087/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 29th July 2016
On 24th August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS

Between

Mr MM
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A McKenzie, Counsel
For the Respondent: Mr E Tufan, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a citizen of Sri Lanka born on [ ] 1976. The Appellant entered the UK on a student visa on 15th October 2011 using his Sri Lankan passport. He applied for leave to remain as a student on 23rd January 2013 and this application was refused. On 22nd November 2013 the Appellant claimed asylum and was served with an IS151A as an overstayer.
2. On 21st October 2015 the Secretary of State refused the Appellant's asylum application. In refusing the application the Secretary of State noted the Appellant's claim for asylum was based upon a fear that if he returned to Sri Lanka he would face mistreatment due to his political opinion.
3. The Appellant appealed the refusal of the Secretary of State and the appeal came before Judge of the First-tier Tribunal Scott sitting at Taylor House on 8th March 2016. In a decision and reasons promulgated on 15th April 2016 the Appellant's appeal was dismissed on asylum and human rights grounds and the Appellant was found not to be in need of humanitarian protection. The Appellant was however granted anonymity. No application is made to vary the anonymity direction and consequently it remains in place.
4. On 21st April 2016 Grounds of Appeal were lodged to the Upper Tribunal. Those Grounds of Appeal noted that the key facts in the applicant's history had been accepted by the Secretary of State, including that the applicant had been detained in September 2011 on suspicion of assisting the LTTE, tortured and released the following month, on payment of a bribe. It was noted that the question for the Tribunal was whether those facts placed the applicant at risk on return to Sri Lanka in the light of the guidance given in GJ (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC). It was noted in the Grounds of Appeal that the judge had held that they did not for reasons which she gave at paragraph 33 onwards of her judgment. The secondary issue was whether the Appellant's removal would breach Article 3 because of her risk of suicide.
5. The Grounds of Appeal set out four grounds:-
That the judge had reversed the standard of proof and/or failed to make findings to the appropriate standard.
The judge's findings were inconsistent with country guidance.
The judge failed to consider the guidance in GJ as to psychiatric facilities.
The judge misunderstood crucial aspects of the psychiatric evidence.
6. On 4th May 2016 First-tier Tribunal Judge Holmes granted permission to appeal. On 13th May 2016 the Secretary of State responded to the Grounds of Appeal under Rule 24.
7. Thereafter, the matter came before Deputy Upper Tribunal Judge Monson at Field House on 6th June. The hearing before Judge Monson was to determine whether or not there was a material error of law in the decision of the First-tier Tribunal Judge. In a decision and reasons handed down on 15th June 2016 the judge found:-
(a) That the decision of the First-tier Tribunal dismissing the Appellant's appeal on Article 3 ECHR (mental health/suicide risk) grounds and under Article 8 did not contain an error of law, and accordingly that part of the decision stands.
(b) The decision of the First-tier Tribunal dismissing the Appellant's appeal against a decision to recognise him as a refugee did contain an error of law and the decision was set aside.
8. Judge Monson gave directions that there would be a further hearing in the Upper Tribunal before him to re-make the decision on the asylum claim and that the hearing would proceed by way of submission only. None of the findings of fact on the asylum claim made by the First-tier Tribunal were preserved.
9. It is on that basis that the appeal appears before me in my list. The Appellant appears by his instructed Counsel Mr McKenzie. Mr McKenzie is extremely familiar with this matter. He appeared before the First-tier Tribunal and he is the author of the Appellant's skeleton argument. The Secretary of State appears by her Home Office Presenting Officer Mr Tufan.
Preliminary Issue
10. As a preliminary issue I raised with the parties why the matter was listed before me, bearing in mind the normal protocol and the specific fact that Judge Monson had reserved the matter to himself. Neither legal representative was able to answer that question but there was unanimous agreement that the matter should proceed as scheduled before me and that I should be the determining judge rather than Judge Monson as to adjourn to a further date would merely delay this matter. It is on that basis that the appeal comes before me.
The Issue
11. The issue is a relatively straightforward one, namely whether on the facts of the case the Appellant falls within the risk categories set out within GJ.
The Law
12. The law is set out in GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC). The head note to that authority states:-
"(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".
Submissions/Discussion
13. Mr McKenzie indicates the starting point is to look at the Appellant's interview record and I am referred to question 136 therein. That is a long question but Mr McKenzie submits that it is clear from the answers given therein that the authorities believed that the Appellant had connections with the LTTE. He refers me to the four risk categories set out at paragraph 7 of the head note of GJ emphasising that amongst those category of people who would be at real risk of persecution or serious harm on return to Sri Lanka are individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka. Mr McKenzie submits the Appellant, judging from the detention which he suffered, the questions asked of him and the torture, is believed by the security forces to have been involved with ongoing LTTE activity and, as such, he falls within the first of these risk categories, namely that of persons 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. He comments that if the authorities did not believe he was involved in LTTE activities, then they would not have detained him. He points out that the fact that the Appellant was detained, which only came to an end when he escaped, and the seriousness of the ill-treatment which he suffered, created in themselves a clear risk that such persecution would be repeated.
14. Mr McKenzie also points out that the Appellant comes within the fourth risk category under GJ, namely a person on a computerised "stop" list accessible to the security forces at the airport comprising a list of those against whom there is an extant court order or arrest warrant.
15. Mr McKenzie accepts that the Tribunal in GJ did not give specific guidance as to who would be subject to an arrest warrant and therefore included on the "stop" list, but he refers me to expert evidence provided therein of Dr Chris Smith whose evidence he points out was corroborated in GJ by the evidence of a Sri Lankan lawyer, Anton Punethanayagam, and by further expert witness evidence of Professor Good. He submits that the evidence in GJ shows it is possible to use bribery as a method of release from detention as occurred in the Appellant's case and that this has no bearing on whether or not someone is of interest to the authorities. He asked me to allow the appeal.
16. Mr Tufan acknowledges the issue is simply whether or not the Appellant comes within the risk categories of GJ. He does however consider on behalf of the Secretary of State that there are credibility issues within Section 8 of the 2004 Act, namely that the Appellant came to the UK with entry clearance as a student in 2011 but never applied at that stage for asylum. He submits that the Appellant could quite reasonably have been detained by the authorities but that this in itself would not bring him within the risk categories and that at most, the Appellant was unwittingly accused of helping someone within the LTTE. He submits that the Appellant does not come within that risk category and that he is of no significance to the authorities whatsoever. He likens the Appellant to the second Appellant in GJ and that he is not someone actively seeking to destabilise the Sri Lankan state. He asked me to give consideration to paragraphs 430, 432 and 433 of GJ and to conclude that the Appellant would not be perceived as having a significant role in relation to post-conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka. He asked me to dismiss the appeal.
17. In brief response, Mr McKenzie points out that Section 8 of the 2004 Act does not apply. And that the Appellant was not accused of unwittingly helping the LTTE, but was deliberately accused and an arrest warrant was issued for him because he escaped.
Findings
18. This appeal has a lengthy history and I am now asked to rule, based on a factual matrix of this case, as to whether or not the Appellant falls within the risk categories of GJ and in particular two risk categories, namely whether the Appellant is an individual who either is, or is perceived to be, a threat to the integrity of Sri Lanka as a single state because he 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, and whether his name would appear 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.
19. Certain facts do not appear to be in dispute. These include the fact that the Appellant was arrested, that he escaped and that an arrest warrant for him was issued. I have considered in some detail the Appellant's asylum interview particularly at paragraph 136, and there appears to be evidence within that that indicates quite clearly that the Appellant was detained on the basis that he was questioned as to whether he had connections with the LTTE. He was further, it appears, tortured and it is reasonable to assume that for such methods to be carried out, the authorities held a belief that the Appellant did have association with the LTTE.
20. Paragraph 27 of the Notice of Refusal states:-
"The Sri Lankan government's objective is no longer to find people with perceived involvement in the LTTE, rather they are focusing on those that are actively seeking to revive the LTTE or Tamil separatist organisations. In effect, past LTTE membership is no longer a concern to the Sri Lankan authorities. Therefore it is considered you do not engage this risk factor".
21. Whilst acknowledging that the position in Sri Lanka has moved on, that statement does not engage with paragraph 7(a) of the head note to GJ. It is clear that based on the evidence, which is not challenged, that the authorities perceived the Appellant to be a threat because of a relationship with the LTTE. That is compounded by the Appellant's escape and by the fact that he would potentially be on a list of people appearing on a computerised stop list due to the arrest warrant that is outstanding.
22. In such circumstances, and addressing the narrow issues as set out herein, I am satisfied that this is an Appellant who falls within the risk categories set out within GJ and for these reasons, and these reasons alone, the Appellant's appeal succeeds on asylum grounds.
Notice of Decision

The Appellant's appeal is allowed on asylum grounds.

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 their 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.

Signed Date 21st August 2016

Deputy Upper Tribunal Judge D N Harris

TO THE RESPONDENT
FEE AWARD

No application is made for a fee award and none is made.

Signed Date 21st August 2016

Deputy Upper Tribunal Judge D N Harris