Tribunal decisions

The decision

St
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/13430/2015

THE IMMIGRATION ACTS

At Field House
on 23rd December 2016
Decision and Reasons Promulgated
on 4th January 2017

Before
DEPUTY JUDGE OF THE UPPER TRIBUNAL FARRELLY

Between

MR. V.N
(ANONYMITY DIRECTION MADE)
Appellant
And
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original Appellant. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.

Representation:
For the Appellant: Mr. G. Dolan, Counsel, instructed by ADP Solicitors.
For the Respondent: Mr Walker, Home Office Presenting Officer.

DECISION AND REASONS
Introduction

1. The appellant is a national of Sri Lanka born in September 1983. He came to the United Kingdom on a student visa in 2008. He returned home the following year for one week. He then returned to the United Kingdom until March 2012 when he returned to Sri Lanka. Some months later he returned to the United Kingdom and two months later made a claim for protection. The basis of that claim is that he is at risk because of his association with the LTTE.

2. He claimed that he had been detained by the Sri Lankan authorities before he came to the United Kingdom in 2008 because of suspected activity. He also claimed that he was abused and detained by the authorities when he returned in March 2012.

3. The respondent refused the claim on 9 November 2015, principally on credibility issues. It was not considered credible that he would repeatedly return to his country if his claim were true. It was noted that he travelled backwards and forward using his own passport without difficulty. Reference was made to his delay in claiming asylum.

4. The country guidance decision of GJ and others identified certain risk categories none of which applied to the appellant's situation. Reference was made to a positive change in attitude following the election of a new President in January 2015 and the subsequent formation of a new government.

The First tier Tribunal

5. His appeal was heard by Judge of the First tier Swaney. The judge found that he was a member of the LTTE from 2003, involved in relatively low-level activities which included delivering packages as he had claimed. The judge found his account to be internally consistent. The judge attached weight to the documentary evidence provided as to his claim of detention in 2008. The judge also heard from a friend of the appellant's about his detention. The judge accepted that he was detained as claimed in 2008 and was released by the court following an inability by the police to link him to any crime or involvement with the LTTE. The judge concluded that his involvement with the LTTE was relatively low-level and that when the appellant was released he was no longer of any interest to the authorities. The judge found his failure to claim asylum when he arrived in 2008 was consistent with this as was his ability to enter and return from Sri Lanka without hinder in 2009.

6. The judge did not accept the truth of his claimed detention in 2012. The judge found his credibility was damaged by his failure to claim protection immediately when he returned in 2012. Having concluded that the appellant was of no interest to the authorities when released in 2008 the judge said that the appellant had given no explanation as to why he would then be of interest to them in 2012.

7. Medical evidence had been supplied to support the claim that the appellant had been abused whilst in custody in 2008 and 2012. The judge attached little weight to this evidence and referred to the possibility of alternative causes.

8. The appellant claimed that his mother had been visited by the authorities who are enquiring about his whereabouts. The judge did not accept this and viewed it as an attempt to bolster his claim.

9. The judge found no evidence that his activities in the United Kingdom in the intervening years were likely who have come to the attention of the authorities in Sri Lanka or if they had, that they would give them cause for concern .The appellant said he was a member of the British Tamils Forum (BTF) and a volunteer worker with the UK section of the Transnational Government of Tamil Eelam.(TGTE).He had produced photographs of his attendance at various events here. The judge accepted he was involved with both organisations but concluded there was no evidence that he had a high profile. Should the authorities in Sri Lanka be aware of his activities the judge concluded they would not consider him to have any significant role in post-conflict Tamil separatism.

The Upper Tribunal

10. Permission to appeal was granted on the basis that in 2014 the TGTE was prescribed and it was arguable the effect of prescription meant that the level of involvement with the party was less relevant. First tier Judge Swaney had accepted the appellant was involved with the TGTE in the United Kingdom but may not have appreciated the effect of proscription on the risk on return. It was also arguable the judge may have misconstrued the appellant's claim of his detention in 2012 and there was a possibility his activities in the United Kingdom may have become known to the authorities.

11. At hearing, Mr Dolan referred me to the respondent's Country Information and Guidance on Sri Lanka dated August 2016 and an extract from a Gazette published in Sri Lanka dated 20 November 2015.It referred to the prescription of the TGTE in February 2014. Mr Dolan contended that the adverse findings made by the judge could have been different had there been an awareness of proscription. It had implications for the conclusion on the claim of detention in 2012; the explanation for the delay in claiming, namely, physical and mental health issues; whether in a risk category and on a watch list.

12. In response, Mr Walker referred to the lack of evidence before the judge that the appellant was a high-profile member of the BTF or the TGTE. He pointed out that the letter submitted at the hearing from the BTS did not identify the activities the appellant was engaged in and the letter from the TGTE was non-specific as to his activities and referred to an individual of a different name albeit corrected by hand. The judge concluded that had the appellant a high profile in either of these organisations this should have been reflected in the letter submitted. Mr Walker submitted that the evidence was that the appellant did not have a significant role and would not have a profile. In reply, Mr Dolan said that the issue was one of perception.

Consideration

13. When analysing the decision it is important to read it as a whole. Whilst individual passages are scrutinised they must be placed in the context of the overall judgement and the claim being made.

14. The reasons for refusal rejected all of the key aspects of the claim and challenged the appellant's credibility. His identity was known from his student applications. His claim of fear from the Sri Lankan authorities was premised on an association with the LTTE which would place him in danger. He described being detained by the authorities and abused in 2008. He then came to the United Kingdom on a student visa. He made no claim to the United Kingdom authorities. In 2009 he returned to his home country for a short visit. His failure to claim and his willingness to return were important aspects of the assessment of how he perceived the risk. He returned again in 2012 and claimed he was again detained; abused and raped. He then returned to the United Kingdom. He did not claim protection immediately but waited several months. His return in 2012; his ability to pass through airport security to return to the United Kingdom; his delay in claiming all understandably gives rise to credibility issues.

15. Central in the argument to the Upper Tribunal is the proscription of the TGTE. The LGTE has been prescribed subsequent to the country guidance case. The country information indicates that the situation in Sri Lanka has improved following the Presidential elections. I was provided with a publication from Sri Lanka dated 20 November 2015 which amends the list of proscribed organisations. It refers to the LGTE being proscribed on 25 February 2014 and this is maintained. Significantly, the amendments are intended to reflect the improving situation. The first schedule relates to organisations rather than individuals. It is not apparent what the consequences are for individuals associated with a proscribed organisations or whether there is a hierarchy of associates and members. It does suggest a link to such an organisation could bring the individual into conflict with Sri Lankan authorities.

16. Judge Swaney would not appear to have had the Country Information prepared by the respondent at the beginning of August 2016. The appeal was heard towards the end of August 2016 and the report should have been made available by then though the proximity of the hearing date with its publication may explain its omission. Nothing suggests its omission was deliberate as suggested in the leave application.

17. Judge Swaney was aware of the proscription. Reference is made to it in the appellant's statement and at paragraph 12 of the decision.

18. The judge accepted the appellant's account of events before he came to the United Kingdom in 2008. The judge had the benefit of court documents; evidence from a witness who had been found credible and correspondence from the Red Cross. Notably, the judge concluded that when released the Sri Lankan authorities had no further interest in him. The judge found that this explained his failure to make any claim on arrival in the United Kingdom and his willingness to subsequently return to his home country. The judge did accept the appellant's account of an involvement with the LTTE for a number of years earlier, albeit at a low level. These findings suggest an even handed approach by the judge who did not simply dismiss the claim outright.

19. The judge did not accept the appellant's claim of events in 2012. A number of reasons were given for this. Firstly, there was a delay in claiming. Had the appellant been abused and raped as described then the need for sanctuary would have been foremost in his mind. The judge rejected the appellant's claim he was unaware of the concept of asylum, referring to the fact he had lived in the United Kingdom and had been involved with Sri Lankans in relation to their rights. The appellant had also advanced by way of explanation for not claiming earlier his mental state. The judge adequately addresses this at paragraph 47.

20. The appellant had submitted a medical report in relation to scarring in support of his claim. Four scars to his back he attributed to the 2012 claim. The judge pointed out that whilst the doctor indicated the position of the scarring meant it was unlikely to have been self-inflicted consideration was not given to the possibility of infliction by proxy. Furthermore, the doctor did not comment on the age of the scars or their consistency with the claim made. I find the judge dealt with this evidence adequately.

21. It was suggested that the judge erred at paragraph 49 in stating the appellant had failed to explain why he would be of interest to the Sri Lankan authorities in 2012 when he was not in 2009. In support of this it was submitted the appellant had explained at screening and in interview that the renewed interest was associated with his activities in the United Kingdom. However, if the previous paragraph is considered it is apparent that the judge was mindful of his activities here. The point the judge was making was that when the appellant returned to Sri Lanka in 2009 he was someone who had been suspected of previous involvement with the LTTE in his home country. He had been involved with the BTF and Sri Lankan groups in the United Kingdom. At paragraph 49 the judge said there was no evidence that his activities in the United Kingdom between 2009 and 2012 would have given the Sri Lankan authorities cause for concern.

22. The judge set out at paragraphs 51 to 54 an assessment of his involvement in the United Kingdom. The conclusions are summarised at paragraphs 56 and 57. I find no fault with these conclusions. At paragraph 60 the judge concluded that his low-level activities would not place him at risk on return even if those activities were known.

Error of law

23. I do not find any material error of law established. The decision indicates a fair and balanced approach with a careful analysis of the evidence. The judge was aware of proscription and evaluated the risk on return for the appellant. The conclusion reached was open to the judge.

Decision.

The decision of First tier Judge Swaney dismissing the appellant's appeal shall stand.

Deputy Upper Tribunal Judge Farrelly.

Fee Order

No fee order is applicable

Deputy Upper Tribunal Judge Farrelly.