Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/13424/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 6 October 2016
On 26 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON

Between

THE SECRETARY OF STATE FOR THE HOME DEPARMENT

Appellant
and

kn
(ANONYMITY DIRECTION made)

Respondent
Representation:

For the Appellant: Mr S Kotas, Senior Home Office Presenting Officer
For the Respondent: Mr A Bandegani, Counsel instructed by Lambeth Law Centre

DECISION AND REASONS
Background
1. The Appellant in this case is the Secretary of State. However, I have for the purposes of this appeal I refer to the parties as they were before the First-tier Tribunal where Master KN was the Appellant. The Appellant was born on 10 December 2001 and is 14 years old. He is a national of Sri Lanka, having left Sri Lanka when he was 9 or 10 and travelling through various countries. He claimed asylum in the UK on 7 August 2013. In a decision promulgated on 22 June 2016 Judge of the First-tier Tribunal Mays allowed the Appellant's appeal on asylum grounds, humanitarian protection grounds and under Article 3. The appeal was against the refusal of the Respondent dated 19 November 2015 to grant the Appellant asylum and humanitarian protection and also to refuse the Appellant's claim under Articles 2 and 3 and 8. The Respondent however granted the Appellant discretionary leave to remain until 28 April 2018 on the basis that the Appellant is an unaccompanied asylum seeking minor and there are inadequate reception arrangements in Sri Lanka.
2. Mr Kotas relied on the Respondent's grounds for permission to appeal to the Upper Tribunal. He said that there was no challenge to the analysis of fact-finding by the judge. It was submitted that the judge made an error in paragraphs [71] to [73] of the decision in her consideration of the appellant's best interests and her conflation of those best interests with risk on return to Sri Lanka and that this was a material error which could not be divorced from the judge's wider analysis of the Appellant's risk on return to Sri Lanka. It was also argued that the judge had failed to apply the Court of Appeal guidance in DS Afghanistan EWCA [2011] in that it was argued that the judge had confused the grant of discretionary leave in the UK with an acceptance by the UK authorities that the Appellant could not be returned at his age.
3. Mr Bandegani accepted at the outset that the judge had made an error in her Article 8 consideration and submitted that [71] to [73] of the decision should be disregarded as this error was not material. In relation to DS Afghanistan Mr Bandegani submitted that in effect the judge was simply making statements of fact; I referred Mr Kotas to the Respondent's comment in the Reasons for Refusal Letter that the Appellant qualified for leave as an unaccompanied minor and that "there are inadequate reception arrangements in their own country". As I indicated at the hearing I am satisfied that it was simply not the case that the judge confused this with an acceptance that the Appellant could not be returned to Sri Lanka. The judge made her own findings including, at [73] that the Appellant had no family in Sri Lanka who could offer him support.
4. Mr Bandegani identified that the real complaint by the Respondent in the grounds of appeal (although not developed by Mr Kotas) was in relation to the Upper Tribunal decision of ST Sri Lanka UKUT [2013] and the fact that Judge Mays distinguished the appellant's case. Mr Bandegani referred me to paragraph 65 of ST Sri Lanka where it was accepted that:
"where a child or young person has a well-founded fear of being trafficked or exposed to sexual abuse, this is a form of serious harm sufficient to engage international protection and can be evidence of fear of persecution for a Convention reason: usually membership of a particular social group, vulnerable to such form of harm"
5. It was not disputed that the above is a proper basis on which protection can be granted to a child/young person and I further accept that the judge properly directed herself in relation to ST Sri Lanka which I note was a reported decision and not a country guidance case.
6. At paragraph 73 of ST Sri Lanka Mr Justice Blake commented in relation to the country conditions in Sri Lanka. Paragraph 73(a) of ST Sri Lanka was not relied on by the Respondent in the grounds for permission to appeal to the Upper Tribunal. However, unlike the Appellant in this case, ST not only had a grandmother in Sri Lanka but also had relatives in the UK with whom he was in contact and who were in a position to contribute to his material support and care in Sri Lanka.
7. Mr Bandegani pointed to the fact that Judge of the First-tier Tribunal Mays, at page 16, had set out that the Appellant's paternal uncle had helped him escape but that he had not had any contact with this uncle since he left Sri Lanka and does not know his whereabouts (paragraph [61] of the decision of the First-tier Tribunal). That finding was not challenged by the Secretary of State.
8. Mr Bandegani submitted that the uncle in the UK did not attend the hearing, there was no explanation for his non-attendance, he was not before the Upper Tribunal and there was no evidence of any support that he provided the Appellant. Therefore It was submitted that in effect this uncle could not be seen, in the way that the relatives in ST were seen, to be "in a position to contribute to his material support and care" on return to Sri Lanka. At paragraph [55] the judge found the Appellant's foster father Mr Raja to be a credible witness. Mr Raja had given evidence that the Appellant had no contact with his family and set out the limitations of the contact with his UK uncle who is essentially someone who is trying to find people who would be in a position to assist the Appellant in Sri Lanka but had been unsuccessful in those attempts. The judge noted at [71] that the Appellant spends regular time with this uncle. However there is no error in the judge's finding that the Appellant's circumstances are substantially different from that of the young person ST Sri Lanka who had two relatives in the UK with whom he had contact and who were in a position to contribute to his material support and care.
9. Paragraph 73(c), at page 22, of ST Sri Lanka indicated the situation for ST was completely different from that of this Appellant. As Judge of the First-tier Tribunal Mays found at paragraph [74] of her decision the Appellant in this case was not assisted and protected in the way that the Appellant in ST was when he became separated from his parents. There has been no challenge to Judge Mays' findings that the Appellant in this case, who was 9 at the time, was ill-treated including physical ill-treatment in detention. The judge clearly distinguished the Appellant's circumstances from the facts of ST. However ST Sri Lanka was not country guidance and therefore there was no error even if she had not.
10. Judge Mays properly directed herself, including at [75], that state protection does not have to be so effective as to eliminate the risk of harm on which the claim for refugee protection is founded but went on to find, taking into account the range of evidence that was before her, that this Appellant would not have sufficient protection, in relation to 'becoming liable to be trafficked, sexually abused or becoming destitute".
11. Although the Respondent, at paragraph 2 of the grounds of permission to the Upper Tribunal, submitted that the judge gave no lawful reason as to why this Appellant would be left homeless in Sri Lanka, that is incorrect on the basis of the findings that the judge made (including at [62], [63], [73] and [74] about the Appellant's lack of family). In addition, although the Secretary of State asserted that the Appellant's experiences in the camp in Sri Lanka were "not materially relevant to assistance available, in fact, one might logically say that he would more likely to be assisted because of that experience" that cannot be right given that Judge Mays accepted that the Appellant was previously subjected to ill treatment in the camp. At [78] the judge concluded that the Appellant would be at risk on return and I am satisfied that there is no error in this finding.
12. I am not satisfied therefore that any error the judge made in considering Article 8 matters is material, if that is indeed what she did. As set out by Mr Justice Blake in ST Sri Lanka, summarised at head note, number 4, the best interests of the child are relevant in Section 83 appeals only to the extent that they "illuminate the claim that the Appellant is a refugee or entitled to humanitarian protection". I am satisfied that that was what Judge Mays was doing in her consideration of the Appellant's best interests. It did not detract from her very careful consideration, for which she gave cogent reasons, as to why the Appellant in this case would be at risk of serious harm on return to Sri Lanka.
13. As I indicated at the hearing I am satisfied the decision of the First-tier Tribunal did not contain an error of law and that decision shall stand. The appeal of the Secretary of State is dismissed.

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: 25 October 2016

Deputy Upper Tribunal Judge Hutchinson

TO THE RESPONDENT
FEE AWARD

No fee was paid or is payable and therefore no fee award is made.

Signed Date: 25 October 2016

Deputy Upper Tribunal Judge Hutchinson