Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00135/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 3 April 2017
On 13 April 2017

Before

UPPER TRIBUNAL JUDGE KEKIĆ

Between

K K
(anonymity order made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent
Representation:

For the Appellant: Mr P Haywood of Counsel, Direct Access
For the Respondent: Mr Duffy, Senior Home Office Presenting Officer

DETERMINATION AND REASONS

1. These proceedings follow my decision of 20 February 2017 to set aside the decision of First-tier Tribunal Colvin due to errors of law.

2. The appellant is a national of Sri Lanka of Tamil ethnicity. He is an overstayer and has a conviction for people smuggling as a result of which he received a five-year prison sentence. He pleaded not guilty although he admitted to the First-tier Tribunal that he had committed the offences and had lied throughout the 8 -week trial. His claim of being wanted for his political activities in Sri Lanka prior to his departure was rejected by Judge Colvin and by a judge at an earlier hearing and his article 8 claim was also dismissed.

3. The appellant also argued that if deported to Sri Lanka, he would be known to the authorities, given the media coverage of his case in the press both here and in Sri Lanka, would be interrogated about his contacts and would be tortured. The assessment of any risk on return on that basis remains the only live issue and I heard submissions on these matters.

4. Mr Haywood sought to have fresh evidence admitted. This was received by the Tribunal late on the previous working day. It consisted of a statement from P Anton Punethanayagam, a Sri Lankan Attorney in Vavuniya, an expert report from Dr Chris Smith, a witness statement from Kulasegaram Geetharthanan and a Human Rights Watch report dated 12 January 2017. No good reason was offered for the late submission other than the fact that the documents were recently obtained and the appellant had sought Counsel through Direct Access. As there were no objections from Mr Duffy to the late submission of the documents, these were admitted. Mr Haywood also relied on a skeleton argument and a newspaper article which he submitted at the hearing.

5. Mr Geetharthanan was called to give evidence. He confirmed he had read and understood the witness statement before he signed it and that he had instructed Dr Smith on behalf of the appellant by email on 28 or 29 March 2017. He did not have evidence of that with him but could produce it if required. In cross -examination he confirmed that the appellant had paid for the report. He stated that the appellant had been referred to him by a member of the British Tamil Forum. He did not charge the appellant for his services. In response to questions I put, the witness stated that the Attorney’s report had been faxed to him and Dr Smith’s report had been sent to him by email. There was no payment for the Attorney’s letter. There were no questions arising and that completed the oral evidence.

6. Mr Haywood made submissions. He submitted that applying GJ and others (post-civil way: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) to the facts of the appellant’s case, he would be at risk because there would be an interest by the Sri Lankan authorities in investigating him on suspicion of separatist activities. He submitted the LTTE were known to have used organised crime to fund raise. He also submitted that the authorities were known to ill-treat suspects during interrogation / detention. He submitted that the press had reported that the smuggling network was a sophisticated operation and so the appellant would be questioned about this and his contacts in Sri Lanka. That had to be considered along with his involvement, albeit limited, in the BTF and the death of his brother, an LTTE supporter/member, in the course of the conflict. There was evidence that criminal organisations were used to fund raise for the LTTE and the authorities would, therefore, be interested to know what information the appellant had about those whom he smuggled in and those who were involved in the operation. The CID was interested in those with criminal records. The appellant would be unable to conceal his crime and for all these reasons he would be at risk on return. On the basis of GJ alone, the case was made out. Article 3 was engaged.

7. Mr Duffy submitted that as the Sri Lankan authorities used sophisticated intelligence, they would know the appellant was not funding separatist movements. The evidence was that he and others in the gang were bringing people in for their own financial gain. There was no reason to suspect that the funds raised were then diverted to the LTTE and nothing on which to base such an assumption. The case of Uganda Bala, reported by the Attorney and in the newspaper article submitted, was different. He had smuggled hard-core LTTE members out of the country for many years but there was no suggestion that the appellant had brought in LTTE members. Moreover, the appellant’s conviction occurred many years after the end of the civil war, the detention and ill-treatment of individuals in detention as reported in GJ focused on those who were suspected of separatism. The appellant was not a suspected separatist and so there was no reason why he should be ill-treated. His low-level activities with the BTF were inconsequential. He did not have connections of an elaborate kind. Whilst his brother was in the LTTE, every Tamil family in the north had a family member in the LTTE. It was speculative to argue that the appellant would be at risk. The appeal should be dismissed.

8. Mr Haywood replied. He submitted that the authorities would want to investigate matters further, not just in relation to who else was involved in the operation but who was smuggled out of Sri Lanka. The authorities had reasonable grounds for wanting to investigate the appellant and if they did so, it was likely he would be ill-treated.

9. That completed the submissions. At the conclusion of the hearing I reserved my determination which I now give.

Discussion and Findings

10. In reaching my findings, I have taken careful note of all the evidence relied on by the parties, whether or not it is specifically referred to in my determination. I also have regard to the lower standard of proof on the appellant to make out his case.

11. It was accepted on behalf of the respondent that the appellant’s crime and conviction would be likely to be known by the Sri Lanka authorities on his return. I proceed on that basis. The conviction of the appellant and four others was widely reported in the press. The duration of their sentences was also reported as was the fact that they had entered into the smuggling racket for their own financial gain. As Mr Duffy submitted, there is no suggestion at all that the funds raised were diverted to LTTE separatist organisations and, indeed, the appellant’s own profile is modest to say the least. Although his brother was killed whilst with the LTTE, the authorities know ”that everyone in the northern province had some level of involvement with the LTTE during the civil war” (GJ: headnote 8). Given that the war came to an end in May 2009 and that the appellant was convicted in 2014 and had no political involvement to speak of, there is no reason at all why the authorities should, given their wide and sophisticated network of intelligence, suspect that the appellant is a Tamil separatist or that he was diverting the funds he made through his criminal activities to Tamil separatism. It is wholly speculative to argue that such a connection would be made. Such an argument appears to me to be more of a desperate attempt on the part of the appellant to frustrate attempts to deport him for reasons other than a genuinely held fear of serious harm.

12. There is also no evidence whatsoever that any of those smuggled into the UK were themselves Tamil separatists. This has never been claimed by the appellant and there is no suggestion that any have claimed asylum. The Sri Lankan authorities are aware that many Tamils are economic migrants (GJ: headnote 8) and there is no reason why they should suspect those who were smuggled in to be anything other than that.

13. It is argued that the evidence provided by Dr Smith suggests that there are links between Tamil criminal gangs and the LTTE. I accept Dr Smith’s work for the police in the past (according to his CV this was in 2004) however the examples he provides to support his opinion are several years old. Whilst there may well have been gangs in the past using criminality to fund Tamil separatism, I have seen no evidence that this has continued in more recent years and I was not referred to any. Dr Smith does not explain why he believes that the authorities would now approach involvement in such a gang as a good reason for investigating whether there are any links to separatists. If, as he suggests, the Sri Lankan authorities monitor the diaspora very carefully and trade information with the British authorities on issues relating to criminality and terrorism, then they would be well aware that the appellant was motivated by financial self-gain rather than anything else. Nor is it clear why Dr Smith takes the view that the authorities believe that people trafficking is organised by the LTTE or LTTE remnants.

14. It is argued that the appellant would be questioned about his activities. Since he has already been convicted, he can be expected to tell the truth during any questioning. It was not suggested that he would be at risk of harm from his contacts if he did so and if he provided the authorities with the information they sought there is no reason why he should be harmed. Mr Haywood did not put forward any double jeopardy argument.

15. The appellant has no previous profile in Sri Lanka so there would be no question of suspicion of any past involvement with Tamil groups.

16. The appellant’s case cannot be compared to Uganda Bala. The latter was involved in the smuggling of hard-core LTTE members for a number of years during the duration of the war. In any case, the newspaper article on him is several years old and there is no update on what happened to him after his arrest.

17. It is argued that the appellant may be placed on a stop list. If that is the case, he would be monitored by the security services after his return. However, it is clear from GJ that “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 reasonably likely to be detained by security forces” (headnote 9).

18. In reaching my conclusions I have had full regard to the report of Dr Smith and the letter from the Attorney. Whilst I have, since the hearing, received a copy of the instructions sent to Dr Smith, there has been no confirmation of the instructions sent to the Attorney.

19. I have no documentary evidence to confirm the instructions sent to the Attorney and he refers to no instructions in his letter other than to vaguely indicate he was “asked to write a letter” to confirm what he knew about “recent events with the family”. His letter is unsatisfactory as it makes assertions about events without necessarily providing any information as to how those matters are known to him. He does not state how he was aware of the interest of the CID and TID in the appellant in 2014, he does not state where he obtained information which he perused in his records, he does not state when the appellant’s father contacted him or when he himself contacted the local police, which station or how contact was made. The information in the letter about a recent visit to the family house and an attack on the appellant’s father has not been independently verified by the Attorney. He is merely putting forward what he claims he was told by the appellant’s family members. As such I cannot place weight on that. Further, his opinion as expressed in the concluding paragraphs of his letter are not based on any specified information or evidence; I have already dealt with the Bala incident. I have not been pointed to any evidence to suggest that those who depart Sri Lanka illegally are prosecuted on return. However, in fairness to Mr Haywood, he did not place any particular reliance on this letter in his submissions.

20. For all the reasons given, the appeal fails on all grounds.

21. Decision

22. The appeal is dismissed on all grounds.

Signed

Upper Tribunal Judge

Date: 7 April 2017