Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA080862015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 28 April 2016
On 17 June 2016

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Navendra Frank DAVID
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mrs Pettersen, Senior Home Office Presenting Officer
For the Respondent: Ms Soltani, Hanson Young Solicitors

DECISION AND REASONS
1. I shall refer to the appellant as the respondent and the respondent as the appellant (as they appeared respectively before the First-tier Tribunal). The appellant, Navendra Frank David, was born on 12 February 1971 and is a male citizen of Sri Lanka. The appellant appealed against a decision of the respondent dated 23 April 2015 to refuse his application for asylum and to issue directions for his removal to Sri Lanka. The First-tier Tribunal (Judge Saffer) in a decision promulgated on 21 September 2015 allowed the asylum/Article/2/3 ECHR appeals. The Secretary of State now appeals, with permission, to the Upper Tribunal.
2. The appeal turns on the question posed by Judge Robertson (who refused permission in the First-tier Tribunal) namely, would the appellant be perceived to be a threat to the integrity of Sri Lanka as a single state and to have a significant role in relation to post-Tamil separatism and a renewal of hostilities with Sri Lanka? In granting permission, Judge McWilliam considered that it was
"... arguable that the judge inadequately explained why [the appellant] would on return be perceived as a Tamil activist working to destabilise a unitary Sri Lankan state or revive international armed conflict. This is in the light of the limited sur place activities and historic arrest and detention."
In the grounds of appeal, the Secretary of State refers to the country guidance case of GJ and Others (Post-Civil War: Returnees) Sri Lanka CG [2013] UKUT 319 (IAC). The head note reads:
(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.
3. The appellant did not claim to be involved with the LTTE in Sri Lanka or with LTTE-related groups in the United Kingdom [decision, 19]. The judge did not accept the respondent's argument that the appellant had produced forged documents in connection with an application to extend his stay in 2011. The judge did consider that the appellant's credibility was damaged by a failure to claim asylum in 2008 when he arrived from Sri Lanka. In general, however, the judge found the appellant to be a credible witness. At [50] the judge accepted that
"Having seen the pictures and considered the oral and documentary evidence it is reasonably likely that [the appellant] has attended meetings and two demonstrations which would be perceived by the Sri Lankan authorities as being anti-government."
The judge made that finding against the background of the appellant's account of having been detained and ill-treated for a period of more than two months in Sri Lanka in 2008. The judge recorded [35] the fact that the Sri Lankan authorities have a sophisticated approach to intelligence gathering and are able to distinguish between economic migrants who have travelled abroad and those who offer a threat to the Sri Lankan state. The respondent's case before the Upper Tribunal is that the appellant would not be of interest to the Sri Lankan authorities after his 2008 detention given that the conflict with the Tamil separatists has subsequently ceased. There was no reason to suppose that, simply because they had detained the appellant in 2008, he would be perceived as a threat to the Sri Lankan state.
4. The grounds do not directly challenge the credibility findings of the judge although it is submitted that the judge has made the findings which I have quoted at [50] whilst failing to consider the appellant's own evidence against [having attended anti-government meetings] that he has never been involved in the LTTE and sympathises with them for humanitarian reasons." I reject that submission. As the judge notes, the important issue here is the perception of the appellant and his activities by the Sri Lankan authorities. The appellant has never actively supported the LTTE and, indeed, his motives for attending demonstrations and meetings may not be entirely genuine but rather are self-serving. If the Sri Lankan authorities perceive the appellant to be a threat then there is a reasonable likelihood that they will persecute him upon return to Sri Lanka. Having accepted the appellant's account in particular having found that he attended meetings and demonstrations which "would be perceived by the Sri Lankan authorities as being anti-government" it was clearly open for the judge to make the findings which I have quoted above [51]. That was not a conclusion which was perverse or irrational in the face of the evidence and I am satisfied also that the judge has given [38-49] clear and cogent reasons for rejecting the attacks on the appellant's credibility made by the respondent and accepting the appellant's account of past events as true and accurate and, having found those facts, concluding on the basis of the country guidance that the appellant would be at real risk on return. In the circumstances, I find that the judge has not erred in law as asserted in the grounds or at all.
Notice of Decision

This appeal is dismissed.

Signed Date 1 June 2016

Upper Tribunal Judge Clive Lane