[2004] UKIAT 39
- Case title: SS (Adjudicators differing on family members)
- Appellant name: SS
- Status of case: Reported
- Hearing date:
- Promulgation date:
- Publication date:
- Last updated on:
- Country: Sri Lanka
- Judges: Hon Mr Justice Ouseley, Mr S L Batiste, Mr M L James
- Keywords Adjudicators differing on family members
The decision
SS (Adjudicators differing on family members) Sri Lanka [2004] UKIAT00039
IMMIGRATION APPEAL TRIBUNAL
Date of Hearing: 3rd February 2003
Date determination notified:
05 March 2004
Before:
The Honourable Mr Justice Ouseley (President)
Mr S L Batiste
Mr M L James
Between:
APPELLANT
and
Secretary of State for the Home Department
RESPONDENT
For the Appellant: Ms C Bayati, instructed by M K Sri & Co
For the Respondent: Ms T Hart, Home Office Presenting Officer
DETERMINATION AND REASONS
1. This is an appeal from an Adjudicator, Mr Andrew Jordan, in a human rights appeal given in a determination promulgated on 15th November 2002. He dismissed the Appellant’s human rights claim.
2. The Appellant is a Tamil citizen of Sri Lanka, born in January 1967, who arrived by plane in the United Kingdom from Colombo on 14th March 1999 with no travel documents and claimed asylum on arrival. On 12th April 2000 the immigration officer refused her leave to enter and proposed that she be removed to Sri Lanka. Her asylum appeal was heard on 15th August 2000 by an Adjudicator, Mrs Symons JP, who in a determination promulgated on 5th September 2000 dismissed her asylum claim.
3. Mrs Symons did not find the Appellant or her story of arrest, detention and beating to be credible. She had given evidence that one of her brothers, who had left Colombo with her and had made an asylum claim, had been detained and released with her. Mrs Symons found a number of inconsistencies in her evidence about that which added to her doubts about the Appellant’s credibility.
4. On 30th June 2000, another Adjudicator, Mr J F W Phillips, heard the appeal of her brother Balarmanan against the refusal of his asylum claim by the Secretary of State on 3rd April 2000. He had arrived in the United Kingdom with the Appellant on 14th March 1999. Mr Phillips allowed the asylum appeal in a determination sent on 14th August 2000. He described how he had been arrested by the Sri Lankan army in October 1998, detained for one week and severely beaten during questioning on one day. He was also beaten by PLOTE. The essence of the Respondent’s case in the brother’s appeal was not so much to take issue with his credibility but rather to say that he was not at a real risk of persecution were he to be returned. Mr Phillips found the brother to be generally credible, said that there had been no real cross-examination on credibility and found that there was a reasonable likelihood that what the brother had told him was true. Mr Phillips concluded that the brother’s detention and mistreatment amounted to persecution for a Convention reason and concluded that there was a real risk that, as a failed asylum seeker, he would be interrogated on return, that that interrogation might lead to more rigorous questioning and to potential ill-treatment which might reveal his LTTE connections. Accordingly, he concluded that to return the brother to Sri Lanka would be in breach of the Geneva Convention. There was no appeal by the Secretary of State against the decision in respect of Balarmanan.
5. M K Sri and Co were acting for both Appellants. However, on 11th September 2000 after the determination of her brother’s appeal, this Appellant sought leave to appeal from the determination of Mrs Symons. Various grounds were raised covering some seven pages. The grounds complained about the absence of weight attached to scarring, the alleged disregard of objective evidence and the finding that the Appellant did not have a well founded fear of persecution in the north of Sri Lanka. Permission to appeal was refused by the Tribunal in a determination notified on 29th September 2000. There were no subsequent proceedings. None of the grounds of appeal referred to the decision in her brother’s appeal by Mr Phillips, which would already have been received by M K Sri and Co.
6. Neither the brother no the sister gave evidence in each other’s asylum appeals, even though at the time when the sister’s appeal was being heard, the brother’s appeal and his evidence in it had already been heard, though the determination had not yet been received. Her appeal was heard the day after the determination in her brother’s appeal was promulgated, but the determination would not yet have been available. At no stage did either of them seek the linking of the cases. The brother did not seek the adjournment of his appeal so that it could be dealt with at the same time as his sister’s. She made no application in that respect either.
7. Subsequently, this Appellant sought leave to remain under the Human Rights Act 1998 in a letter of 12th January 2002. This was refused by a notice dated 17th January 2002 and the Appellant appealed under section 65(1) of the Immigration and Asylum Act 1999 on 24th January 2002. It is this appeal which was heard by the Adjudicator, Mr Jordan, in November 2002.
8. Her main claim was based on Article 3 which had a close relationship to the case which she had failed to make in relation to persecution. She did, however, rely upon the success that her brother had had. She also relied under Article 8 upon the fact that she had three brothers in the United Kingdom. One is the brother who was granted asylum on appeal by Mr Phillips, another had been in the United Kingdom for ten years and had originally been granted ELR which had led later to a grant of indefinite leave to remain. A third brother in the United Kingdom since 1996 had had his asylum claim refused and was awaiting the result of a human rights claim from the Home Officer. Her mother and sister were in Canada; her only relatives in Sri Lanka were LTTE members.
9. The Tribunal gave guidance in Devaseelan [2002] UKIAT 00702* as to how an Adjudicator hearing a human rights appeal should approach the findings of fact made by an earlier Adjudicator in the related asylum appeal by the same Appellant. The Adjudicator rightly concluded that the guidelines were relevant to the decision which he had to make. We set out those guidelines from paragraphs 39-42 of the determination.
“(1) The first Adjudicator’s determination should always be the starting-point. It is the authoritative assessment of the Appellant’s status at the time it was made. In principal issues such as whether the Appellant was properly represented, or whether he gave evidence, are irrelevant to this.
(2) Facts happening since the first Adjudicator’s determination can always be taken into account by the second Adjudicator. If those facts lead the second Adjudicator to the conclusion that, at the date of his determination and on the material before him, the Appellant makes his case, so be it. The previous decision, on the material before the first Adjudicator and at that date, is not inconsistent.
(3) Facts happening before the first Adjudicator’s determination but having no relevance to the issues before him can always be taken into account by the second Adjudicator. The first Adjudicator will not have been concerned with such facts, and his determination is not an assessment of them.
(4) Facts personal to the Appellant that were not brought to the attention of the first Adjudicator, although they were relevant to the issues before him should be treated by the second Adjudicator with the greatest circumspection. An Appellant who seeks, in a later appeal, to add to the available facts in an effort to obtain a more favourable outcome is properly regarded with suspicion from the point of view of credibility. (Although considerations of credibility will not be relevant in cases where the existence of the additional fact is beyond dispute). It must also be borne in mind that the first Adjudicator’s determination was made at a time closer to the events alleged and in terms of both fact-finding and general credibility assessment would tend to have the advantage. For this reason, the adduction of such facts should not usually lead to any reconsideration of the conclusions reached by the first Adjudicator.
(5) Evidence of other facts – for example country evidence – may not suffer from the same concerns as to credibility, but should be treated with caution. The reason is different from that in (4). Evidence dating from before the determination of the first adjudicator might well have been relevant if it had been tendered to him: but it was not, and he made his determination without it. The situation in the Appellant’s own country at the time of that determination is very unlikely to be relevant in deciding whether the Appellant’s removal at the time of the second Adjudicator’s determination would breach his human rights. Those representing the Appellant would be better advised to assemble up-to-date evidence than to rely on material that is (ex hypothesi) now rather dated.
(6) If before the second Adjudicator the Appellant relies on the facts that are not materially different from those put to the first Adjudicator, and proposes to support the claim by what is in essence the same evidence as that available to the Appellant at that time, the second Adjudicator should regard the issues as settled by the first Adjudicator’s determination and make his findings in line with that determination rather than allowing the matter to be re-litigated. We draw attention to the phrase ‘the same evidence as that available to the Appellant’ at the time of the first detention. We have chosen this phrase not only in order to accommodate guidelines (4) and (5) above, but also because, in respect of evidence that was available to the Appellant, he must be taken t have made his choices about how it should be presented. An Appellant cannot be expected to present evidence of which he has no knowledge: but if (for example) he chooses not to give oral evidence in his first appeal, that does not mean that the issues or the available evidence in the second appeal are rendered any different by his proposal to give oral evidence (of the same facts) on this occasion.
(7) The force of the reasoning underlying guidelines (4) and (6) is greatly reduced if there is some very good reason why the Appellant’s failure to adduce relevant evidence before the first Adjudicator should not be, as it were, held against him. We think such reasons will be rare.
(8) We do not suggest that, in the foregoing, we have covered every possibility”.
10. Miss Bayati, who appeared before Mr Jordan as she did before us, submitted that the decision in the brother’s case was a fact that occurred after the making of Mrs Symon’s determination and fell to be taken into account under guideline 2. The Adjudicator, however, said:
“The underlying facts, however, on which Mr Phillip’s determination was made, remain unchanged. In other words, issues such as whether the Appellant’s brother and sister were members of the LTTE have not changed, albeit another Adjudicator has reached a different conclusion on those matters on the basis of hearing different evidence”.
11. He then pointed out that the facts upon which the Appellant relied in relation to risk upon return were the very facts which Mrs Symons had found not established in the asylum appeal. Accordingly, in relation to those matters he concluded that he should follow her findings in accordance with guideline 6. He also concluded that guideline 7 did not assist the Appellant. He said at paragraph 22:
“The brother did not give evidence at the hearing of the Appellant’s appeal. He could have done so. I do not consider the fact that he had not received the determination in his own appeal as a satisfactory reason for failing to do so. There may be a number of reasons why two witnesses are not called to give evidence about the same incidents. Clearly, there is a risk that inconsistencies will arise which may be avoided if the evidence is restricted to a single witness”.
12. He then said at paragraph 23:
“In essence, it is submitted that I should approach this appeal by reversing the findings made by Mrs Symons and substituting the much more favourable findings made by Mr Phillips. There were no specific submissions addressed to me as to why I should prefer the conclusions of Mr Phillips to those of Mrs Symons. I accept, of course, that the determination of the one is inconsistent with the determination of the other. For me to prefer the decision of Mr Philips would not remove the inconsistencies. It might mean that the decisions in the brother’s and sister’s case are rendered more consistent but then there would be an inconsistency between the decision in the Appellant’s asylum claim and the Appellant’s human rights claim. Further, looking at the determination of Mrs Symons, it is plain why she reached the decision she did as to the Appellant’s credibility. That approach has been endorsed by the Immigration Appeal Tribunal. On the other hand, whilst Mr Phillips found the brother to be credible, there is little by way of reasoning in his determination that encourages me to prefer his conclusions to those of Mrs Symons”.
13. At this stage, the Adjudicator has already summarised the decisions of both Mr Phillips and Mrs Symons. He pointed out that each Adjudicator was required to reach a decision on the material before him or her and given the differences in the evidence it was not altogether surprising that different conclusions were reached. He pointed out that it had been open to the Appellant and her brother to give evidence in each other’s appeals but they had chosen not to.
14. This conclusion as to the relative value in this appeal of the earlier determinations is in our view entirely justified. Mrs Symons had to deal with a challenge to the credibility of the Appellant, but Mr Phillips, at least in general terms did not have to deal with a challenge to the brother’s credibility because the Respondent argued that even if his evidence were believed, he could not succeed in making out his claim. Mr Phillips reached shortly expressed conclusions in relation to risk on return and persecution. He did not therefore have to consider the issues which plainly and justifiably troubled Mrs Symons.
15. The Adjudicator then pointed out correctly that the Appellant had not raised her brother’s decision in her application for permission to appeal to the Tribunal after receipt of her brother’s determination. The Adjudicator then set out what he considered to be the correct approach for him to adopt in these circumstances. He said that it was for him to take into account the fact that there had been two inconsistent determinations, without attempting to reverse either one of them. He then considered fresh medical evidence directed towards establishing ill-treatment of the Appellant by the Sri Lankan army, evidence that could have been but was not made available in the asylum appeal. He found that it did not assist in establishing that the Appellant was ill-treated whilst in custody. The Appellant made a short statement repeated in evidence before the Adjudicator giving details of her claim to have suffered persecution. The Adjudicator then concluded as follows in paragraphs 29, 30 and 31:
“In my judgment, nothing has happened since the determination of Mrs Symons that causes me to re-open her findings of fact. Just as she was not satisfied that the appellant was at risk of persecution on return to Sri Lanka, I am not satisfied that the Appellant will suffer adverse consequences amounting to a violation of her Article 3 or 8 rights.
The Appellant’s brother gave evidence in line with the statement that he has made and which is to be found at pages 34 to 35 in the Appellant’s Personal Bundle. He reiterated the finds that were made in his favour in his own asylum appeal. In the course of his evidence, the Appellant’s counsel did not seek to re-litigate the facts of what happened in Sri Lanka. Mr Beer, on behalf of the Home Office, did not cross-examine the brother as to what occurred to them in Sri Lanka. There appears to have been some sort of evidential truce based on an underlying assumption that these matters had already been dealt with.
The fact that the brother gave limited evidence that could have been given at the earlier hearing, does not undermine the findings of fact made in the asylum appeal. As a matter of principle as the Devaseelan guidelines suggest, the fact that an Appellant withholds a witness at his first appeal cannot then entitle him (or her) to re-litigate the issue when the witness could have given evidence before. See the seventh guideline”.
16. The Adjudicator then set out the claims under Article 3 and 8. The first part of the claim related to her mental health. The Adjudicator considered a report from Dr Michael Seear of September 2002 who had concluded that the Appellant was suffering from a major depressive episode in respect of which she needed antidepressants and support that might take the form of helpful chats with her GP, for at least a year and possibly up to eighteen months, by which time there should have been a spontaneous improvement. Were she to be returned to a frightening place, she could lose the gains or possibly even deteriorate.
17. However, the Appellant had not been seen by a psychiatrist in the United Kingdom since her arrival in March 1999. There was no evidence that antidepressants were not available in Sri Lanka. The Adjudicator concluded that the Appellant had not established that her medical condition could not be treated in Sri Lanka or that the consequences of her return established a sufficiently real risk, for her removal in those terms to be contrary to Article 3 or 8.
18. He then turned to the pure Article 8 claims as he called it based on her United Kingdom family ties. We have set these out already. She lives with the brother Balarmanan and sees her other two brothers normally at least once a week. She had had no contact with the brother who had joined the LTTE in 1992 since then, nor with the sister who joined the LTTE just before 1999. However, the Adjudicator noted that Mrs Symons had not accepted her evidence that either her brother or sister in Sri Lanka were members of the LTTE. Her brother gave oral evidence to the Adjudicator and was asked some questions about his life in England, though not about events which had happened to him in Sri Lanka. The Adjudicator pointed out that he supported his sister from his income, and could continue to do that if she were in Sri Lanka.
19. The Adjudicator concluded that the Appellant had a family life in the United Kingdom and that her return would inevitably prejudice it. Such, he said, was the inevitable consequence of the fragmentation of this family by the process of immigration and relocation. Had she remained in Sri Lanka, she would have been able to visit her UK relatives as a visa holder and would have been in a position to apply for settlement. He concluded that it would be proportionate for the Appellant to be returned to Sri Lanka. This was based on the finding that she was not at risk of persecution or of inhuman or degrading treatment. He was not satisfied about the position of her brother and sister in Sri Lanka. Her medical condition did not prevent her return. Her position in relation to her mother and sister in Canada would be unaltered.
20. In her submissions before us, Miss Bayati accepted that paragraph 19 of the Adjudicator’s determination in which he set out the Devaseelan guidelines was the correct starting point. The determination of the brother’s appeal was further evidence within the second guideline. The Grounds of Appeal had suggested that where there were two contradictory sets of findings of fact the Adjudicator should have accepted that it is reasonably likely that the more favourable findings in the brother’s appeal were true and should follow those. Miss Bayati, however, was reluctant to submit that that decision amounted by itself to a sufficient basis for the Adjudicator on the human rights appeal to overturn the findings of the Adjudicator in the asylum appeal. She submitted more strongly that at the very least, if there were two inconsistent determinations, the Adjudicator was obliged to reassess the evidence and although he could find the brother not to be credible after hearing all that he had to say, nonetheless his duty was to assess that evidence. The Adjudicator had not assessed it; he had simply said that he could not undermine the decision of the first Adjudicator. He was not bound to accept as true what the brother said, but in this case the Home Office had not cross-examined the brother when he gave evidence in his sister’s second appeal about events in Sri Lanka.
21. Miss Bayati explained that the brother had not given evidence in the Appellant’s first appeal, as a result of an unreported decision of Ognall J on 29th January 1997 called Kimbesa. In Kimbesa, two brothers, who had arrived very shortly before the hearing of the Appellant’s appeal and had claimed asylum, contended that as their cases were very much the same as and involved with that of the Appellant, the three cases should be dealt with together. Ognall J was persuaded that it would be unfair to expect either of the two brothers to give evidence and be tested on it a short time after they had arrived and before they had been interviewed.
22. Miss Bayati said that a practice had grown of Appellants not calling as witnesses those who had yet to have their appeals determined, even if they had had their interview. Indeed, in this case the brother had actually given his evidence on appeal to the Adjudicator before his sister’s first appeal.
23. Miss Hart for the Respondent submitted that the determination by Mr Phillips was unreasoned on the brother’s credibility, because no challenge had been raised to credibility, whereas Mrs Symons had undertaken a full and reasoned assessment of credibility in relation to this Appellant and had rejected it. It was obviously right for this Adjudicator to put more weight on that determination both because it considered credibility in detail and because it specifically related to this Appellant’s case and evidence. She submitted that the determination in the brother’s appeal was not new evidence but rather a new view of the facts, following a different interpretation by another Adjudicator of some of the same evidence.
24. In reality the Adjudicator, it was submitted, had weighed up the merits of the evidence when pointing out that the determination of Mrs Symons was to be preferred and there was nothing that required her determination of this Appellant’s first appeal to be re-thought. The evidence which was placed before Mr Jordan by the brother could have been placed before Mrs Symons but was not. It could have been appealed and was not.
Conclusions
25. The Adjudicator was right to treat this as a case to which the guidelines in Devaseelan applied. That much was common ground at least as a starting point. They applied because this was a second appeal. Devaseelan does not directly deal with the consequences for such an appeal of subsequent credibility findings which are to a degree inconsistent with the credibility findings in the first appeal. Its guidance nonetheless enables a proper answer to be given.
26. The determination letter in the brother’s appeal was said, tentatively, inevitably to be sufficient of itself to overturn the findings in the Appellant’s first appeal. The argument was put more boldly in the Grounds of Appeal. It appears from paragraph 23 of Mr Jordan’s determination that that is how the argument was put to him.
27. The suggestion was that in the light of the standard of proof in asylum and human rights cases, the decision in the brother’s appeal raised a reasonable doubt about the untruthfulness of the Appellant’s story as concluded by the first appeal Adjudicator, and she should now be given the benefit of it. We cannot accede to that suggestion. The second Adjudicator must look at the determination of the first Adjudicator in the framework provided by the guidelines in Devaseelan. He must examine the material before him in the light of the conclusions reached on the evidence before the first Adjudicator. He cannot simply defer to a different decision, albeit one to which his appeal is related, on the grounds that it is more favourable to the Appellant’s version of events, regardless of the issues raised, the way the case was presented, or the evidence given or the nature of the first Adjudicator’s reasoning and conclusions or the availability of evidence which was not provided. It would be wholly inappropriate for related Appellants to make what may be tactical decisions about which witnesses to call, perhaps hoping to avoid the exposure of contractions which could damage all their cases, and then to require an Adjudicator to follow whichever was the most favourable to an Appellant regardless of that Adjudicator’s own assessment of the evidence placed before him.
28. The second Adjudicator was correct to say that he had to take into account that there were two inconsistent determinations without attempting to reverse either of them. But the brother’s determination is not itself a fact which has happened since the first appeal, in the context of the second Devaseelan guideline. The starting point is always the first Adjudicator’s decision. The purpose of the second guideline was to deal with relevant events which thereafter happened which could cause an Adjudicator hearing a human rights appeal to consider reaching a different conclusion from the earlier asylum decision. The obvious example is where subsequent events cause a rejected persecution claim to be re-examined when put forward as an Article 3 claim. But here the Appellant seeks no more than a different appraisal on different evidence of the same or some of the same facts. That is not what the guidelines had in mind to permit.
29. Alternatively, if the Appellant’s point is simply that the brother’s determination had to be looked at to see if, of itself, it justified overturning the Appellant’s first adjudication, acknowledging that it could not do so automatically and solely because it was more favourable, the second Adjudicator did that and for the reasons which he gave in paragraph 23, he rejected that. We agree with his assessment of the two determinations. That of Mrs Symons is a detailed and thorough examination of credibility, following cross-examination. That issue was not really raised before Mr Phillips, because the HOPO had expected to win, even taking the brother’s case at its highest. It would have to be a remarkable set of circumstances justifiably to cause the second Adjudicator to set aside the findings of the first simply in the light of the findings of another Adjudicator in another person’s appeal on different evidence and arguments. A difference of view as to the credibility of a witness would not of itself remotely suffice.
30. Here, the real point in the appeal relates to the evidence which the brother gave at his sister’s second appeal, in the light of the acceptance of his evidence at his own appeal, rather than that determination being a new fact by itself. Evidence of that sort is governed by guidelines 4, 6 and 7. That evidence had to be taken into account and appraised, submitted Miss Bayati, which the Adjudicator had not done.
31. Guideline 4 deals with facts not brought to the attention of the first Adjudicator and the need for the greatest of circumspection when they are raised in the second appeal. The adduction of such facts should not usually lead to any reconsideration of the conclusions reached by the first Adjudicator. This guideline does not help the Appellant. The relevant evidence for these purposes given in the sister’s second appeal by the brother related to events in Sri Lanka rather than to events in the United Kingdom. The evidence was given in a written statement which in this respect stood as the brother’s evidence in the Appellant’s appeal and was not elaborated on. There is nothing new in the few short paragraphs except for the reference to the outcome of his appeal and the fact that, although Mr Phillips did not refer to his sister’s arrest, that had been before him from the interview records. All the substantive points which he made were before the first Adjudicator through his sister’s evidence. There is nothing in the brother’s statement for example which deals with any of the points which the first Adjudicator raised as to why she found inconsistencies and implausibilities in the sister’s evidence. In short, it wholly fails to address any point which would naturally have had to be considered by any Adjudicator who was being asked to reach a different conclusion from the first Adjudicator. It is not necessary to consider it even with great circumspection. There is no new material at all – apart from the result of the brother’s appeal which could have been raised before the Immigration Appeal Tribunal when leave to appeal was sought from the decision of Mrs Symons and refused.
32. Guideline 6 is in point because the facts relied on before Mr Jordan were not materially different from those before the first Adjudicator and the case was supported by “the same evidence as that available to the Appellant at that time…”. Accordingly, the Adjudicator was obliged to regard the issues as settled by the first Adjudicator’s determination and had to make his findings in line with that determination. Although the brother was a witness whose evidence had not been given to the first Adjudicator, the evidence which he gave was not materially different from that given by his sister in her first appeal. He was a witness who had been available to give evidence in that appeal. He did not do so.
33. Nothing in guideline 7 helps the Appellant because the reason given for the evidence not being given in the first appeal was not a very good one. We were told that this was because of the practice to which we have referred. But that practice, if it existed, was never sanctioned by the Tribunal; it was based on a complete misreading of Ognall J’s decision in Kimbesa. It was a case that depended upon earlier Rules, an application being made for an adjournment and evidence that was to be given in an appeal shortly before the asylum interview; so it does not parallel the present case. Kimbesa also dealt with the Procedure Rules which were superseded by the 2000 Rules. The provisions in relation to adjournment were made very much tighter in Rule 31(1) of the 2000 Rules than they had been.
34. In Rajan 8th February 2002 CC/51103/99 (01/TH/0244*) the general inapplicability of Kimbesa was dealt with. There was and is no obligation to adjourn pending appeals, if there are concurrent applications by relations, and Kimbesa was not authority for that proposition. We can see no reason why somebody should not give evidence in an appeal, whilst their own appeal determination remains outstanding or before they have given evidence in their own appeal. It is particularly undesirable for that witness to be brought in to give evidence at a subsequent appeal. Now that second, human rights, appeals should be diminishing in numbers, it is yet more important that all the evidence is brought forward to be dealt with at the first opportunity; that is because it will be generally the Appellant’s only opportunity. As the Adjudicator in this case pointed out correctly, a second witness may not be called in the first appeal for the tactical reason that discrepancies and contradictions may arise and wedges may be driven between the different accounts; thus it is hoped to advance the prospects of success for an Appellant by limiting those opportunities. It is highly undesirable for parties to litigation to seek to avoid that risk and then to bring the evidence in when the initial strategy has not succeeded. The appeal system does not permit an attempted finesse, followed by a replay of the lost trick.
35. It is to be hoped that any misconception as to the propriety or fairness of an Appellant giving evidence in someone else’s appeal, when he has yet to give evidence in his own appeal or that appeal has yet to be determined, can be laid to rest.
36. Guideline 8, however, points out that the guidelines do not cover every eventuality; but the major categories are covered and the principles should be applied. The factor which is not explicitly dealt with in the guidelines is the effect of a determination which has reached a relevant but different credibility finding. It is relevant to consider that other determination, the evidence which was given and the arguments addressed. It is relevant to see how far it contains factors not before the first Adjudicator and the extent to which it addresses matters of concern to the first Adjudicator. It would be relevant to examine any later evidence supplied to the second Adjudicator but to do so with the guidelines 4, 6 and 7 firmly in mind. But it would be wrong for the second Adjudicator not to give the greatest weight to the decision of the first Adjudicator. The principles of the guidelines still apply to that situation. We consider that that is how this Adjudicator in fact approached the problem.
37. It was said that there was nonetheless an obligation on the Adjudicator to assess the evidence of the brother in the appeal and that had not been done. Miss Bayati referred to the language of paragraph 30 of the determination. She said that the decision had merely been noted but the evidence had not been appraised. The first sentence of the paragraph is not as clear as it might be; it could be read as confining consideration to the mere fact of the brother giving evidence. But that is too narrow a reading of it. There is a short appraisal of the evidence in the word “limited”. It is indeed limited evidence as we have discussed above. There is nothing in it which could or should have impelled the second Adjudicator to a different conclusion about its weight, or to a different conclusion as to the sister’s credibility.
38. If the second Adjudicator did not in fact appraise the further evidence, we are in as good a position as he was to do so, because the relevant evidence was in written form and not supplemented by oral evidence from the brother. There is nothing of substance in it to warrant a change in the first Adjudicator’s conclusions on credibility. There is no new material as such. The evidence does not begin to grapple with the reasoning of the first Adjudicator in rejecting the sister’s credibility. The mere fact that another Adjudicator, on different evidence and argument, had reached a different conclusion as to the credibility of the brother does not mean that the same view should be taken of the sister’s evidence. There is nothing in the coherence or thoroughness of the determination in the brother’s appeal which makes it intrinsically more persuasive than that in the sister’s first appeal. It is the reverse. But there was no real challenge anyway to the brother’s credibility in his appeal because, as we have said, the focus of the Secretary of State’s argument was that he could safely be returned even if what he said was true. His evidence was not conceded to be correct in this appeal and the case was presented by the Home Office Presenting Officer to the second Adjudicator as one which was in effect covered by the guidelines, as in principle it is. The fact that this means that there are to a degree inconsistent credibility findings is not desirable, but it is the consequence of the way the two chose to give evidence. We uphold the determination of the second Adjudicator.
39. It was accepted that if we were to do so, there was no need to consider the other points which related to Article 3 and 8. Permission to appeal had been in effect refused on those grounds. Miss Bayati made submissions in relation to those matters in case we reached a conclusion favourable to her on the Grounds of Appeal which was permitted, but then wished to consider human rights issues rather than remitting the matter to another Adjudicator. We can record them and our conclusions briefly. This assumes that the Appellant’s evidence had been accepted, so it is in part on a false hypothesis.
40. The Appellant would be returning to Sri Lanka as a single woman from the Jaffna area, who had had a low level involvement with the LTTE, doing sewing work for three months. She had a brother and sister somewhere in Sri Lanka who were LTTE members, the sister joining after the Appellant had left. She had been detained once with her brother briefly and then both had been released nearly 6 years ago. She had been ill treated in detention. She had some body scarring. She had no family in Sri Lanka whose whereabouts she knew or could access. Her home village was within a High Security Zone to which she would not have access. A medical report from September 2002 found her to be suffering from a major depressive episode which required antidepressants and support in the form of helpful chats with her GP. If she stayed in Colombo she would be an unsupported single female, which according to a report by a Dr A Good on a fact-finding visit in August 2003, would be completely unfeasible. It was culturally unacceptable for a single woman to live on her own. The HSZs had created a large number of refugees in Jaffna, covering as they did some thirty percent of it. The UNHCR were cautious in its assessment of the position. It was premature to advocate the return of all asylum seekers to Sri Lanka. Miss Bayati drew attention to the fact that the President had declared a state of emergency, albeit now reserved, and that there were more roadblocks and searches. There was less scope for optimism about the ceasefire and its durability. Dr Good suggested in his August Report that the LTTE were using the ceasefire to regroup and infiltrate Colombo and assassinating Tamil opponents. The October 2003 CIPU Report predated the uncertainties created by the actions of the President and her rift with the Prime Minister.
41. We do not accept the submissions in relation to either Article 3 or 8. Her medical condition was said to be one which antidepressants and gentle support for a year or perhaps eighteen months would resolve. That time has very nearly elapsed since the report was compiled. The fear of a return of the condition must be seen in the light of the availability of antidepressants in Sri Lanka. She does not require specialist treatment or support. She has another brother whose asylum claim in this country has failed, who is waiting upon the determination by the Home Office of his human rights claim. There is nothing before us to suggest that he could not return. The brother who was granted refugee status with whom she lives can continue to send her financial support, as he now supports her, so she would not be an unsupported female in Colombo. Her family life here is with the brother with whom she lives and with another who has indefinite leave to remain; it is more precarious with the brother whose asylum claim has been rejected. She would experience some disruption to that family life. Her family is also in Canada, and her relations with them would not be disrupted. We accept the Adjudicator’s conclusions on this in paragraphs 41 and 42.
42. As to the concern about the return of a single female to Colombo, we are not persuaded that that is shown to be sound, by the single source from which it comes. She would not be unsupported financially, even if she were alone and even if her unsuccessful asylum-seeker brother were not to return. She would be in a position to find accommodation, whether or not in someone else’s house, in a capital which has many refugees from the civil war and many Tamils. Dr Good’s report in paragraph 76 refers to the fact that in Jaffna there are 20,000 female-headed households, who often live alone even though they feel that they have no security.
43. On a more general level, Miss Bayati recognised that the cautious note sounded by the UNHCR was the same as sounded before the Tribunal decided in Jeyachandran [2002] UKIAT 01689 that it was only the exceptional case which would not be able to return in safety. The position was reviewed in Thiagarajah [2002] UKIAT 04917. The current problems have been considered in a number of cases and the consistent position has been that the recent developments do not warrant a change in that assessment. Miss Bayati recognised that we should refer to our own reported cases on these country conditions. The pessimism in Dr Good’s report of August 2003 is consistent with the pessimistic line which he has taken in the past, an approach which was considered by the Tribunal in May 2003, in P (Sri Lanka) [2003] UKIAT 00145. The current problems had not occurred by the time of his August report. That decision also considered the availability of medical treatment in relation to a case where the problems of the claimant were markedly more severe than here. He had been detained as a LTTE supporter and ill treated on a number of occasions. Nonetheless, the Tribunal concluded that he could be returned.
44. The position after the declaration of the state of emergency was considered in N (Sri Lanka) [2003] UKIAT 00150 in which the Tribunal also dealt with body scarring. That was not seen as a bar to return. The October CIPU does not deal with the current position politically, as between the President and the Prime Minister. Nonetheless, the essential features are that the ceasefire is still holding, the ban on the LTTE remains lifted, it engages in political activities outside its area of control, even if it has an unsavoury and violent undertone to some of what it does, as Dr Good suggests. There is nothing in any evidence which we have seen to suggest that the picture in the October 2003 CIPU Report or in the determinations to which we have referred, has significantly changed as regards the way returning asylum seekers are treated on arrival or in the way in which searches are carried out. There may be greater tension and a higher incidence of searches and roadblocks; there may be more arbitrary restrictions imposed on the free movement of goods and people, as the UNHCR letter of 8th December 2003 to Sri and Co says may have happened. But that does not support the notion that there would be a real risk of treatment which breached Article 3. The assessment made in Jeyachandran and subsequent cases remains good. There is nothing to suggest that the Appellant is wanted in a relatively serious way. She was a low level supporter briefly detained, and released, who without further arrest later made her way to Colombo whence she department through the series of checks at the main airport.
45. Accordingly, even had we concluded otherwise in relation to the Appellant’s credibility, we would not have allowed her appeal. It is dismissed.
MR JUSTICE OUSELEY
PRESIDENT
IMMIGRATION APPEAL TRIBUNAL
Date of Hearing: 3rd February 2003
Date determination notified:
05 March 2004
Before:
The Honourable Mr Justice Ouseley (President)
Mr S L Batiste
Mr M L James
Between:
APPELLANT
and
Secretary of State for the Home Department
RESPONDENT
For the Appellant: Ms C Bayati, instructed by M K Sri & Co
For the Respondent: Ms T Hart, Home Office Presenting Officer
DETERMINATION AND REASONS
1. This is an appeal from an Adjudicator, Mr Andrew Jordan, in a human rights appeal given in a determination promulgated on 15th November 2002. He dismissed the Appellant’s human rights claim.
2. The Appellant is a Tamil citizen of Sri Lanka, born in January 1967, who arrived by plane in the United Kingdom from Colombo on 14th March 1999 with no travel documents and claimed asylum on arrival. On 12th April 2000 the immigration officer refused her leave to enter and proposed that she be removed to Sri Lanka. Her asylum appeal was heard on 15th August 2000 by an Adjudicator, Mrs Symons JP, who in a determination promulgated on 5th September 2000 dismissed her asylum claim.
3. Mrs Symons did not find the Appellant or her story of arrest, detention and beating to be credible. She had given evidence that one of her brothers, who had left Colombo with her and had made an asylum claim, had been detained and released with her. Mrs Symons found a number of inconsistencies in her evidence about that which added to her doubts about the Appellant’s credibility.
4. On 30th June 2000, another Adjudicator, Mr J F W Phillips, heard the appeal of her brother Balarmanan against the refusal of his asylum claim by the Secretary of State on 3rd April 2000. He had arrived in the United Kingdom with the Appellant on 14th March 1999. Mr Phillips allowed the asylum appeal in a determination sent on 14th August 2000. He described how he had been arrested by the Sri Lankan army in October 1998, detained for one week and severely beaten during questioning on one day. He was also beaten by PLOTE. The essence of the Respondent’s case in the brother’s appeal was not so much to take issue with his credibility but rather to say that he was not at a real risk of persecution were he to be returned. Mr Phillips found the brother to be generally credible, said that there had been no real cross-examination on credibility and found that there was a reasonable likelihood that what the brother had told him was true. Mr Phillips concluded that the brother’s detention and mistreatment amounted to persecution for a Convention reason and concluded that there was a real risk that, as a failed asylum seeker, he would be interrogated on return, that that interrogation might lead to more rigorous questioning and to potential ill-treatment which might reveal his LTTE connections. Accordingly, he concluded that to return the brother to Sri Lanka would be in breach of the Geneva Convention. There was no appeal by the Secretary of State against the decision in respect of Balarmanan.
5. M K Sri and Co were acting for both Appellants. However, on 11th September 2000 after the determination of her brother’s appeal, this Appellant sought leave to appeal from the determination of Mrs Symons. Various grounds were raised covering some seven pages. The grounds complained about the absence of weight attached to scarring, the alleged disregard of objective evidence and the finding that the Appellant did not have a well founded fear of persecution in the north of Sri Lanka. Permission to appeal was refused by the Tribunal in a determination notified on 29th September 2000. There were no subsequent proceedings. None of the grounds of appeal referred to the decision in her brother’s appeal by Mr Phillips, which would already have been received by M K Sri and Co.
6. Neither the brother no the sister gave evidence in each other’s asylum appeals, even though at the time when the sister’s appeal was being heard, the brother’s appeal and his evidence in it had already been heard, though the determination had not yet been received. Her appeal was heard the day after the determination in her brother’s appeal was promulgated, but the determination would not yet have been available. At no stage did either of them seek the linking of the cases. The brother did not seek the adjournment of his appeal so that it could be dealt with at the same time as his sister’s. She made no application in that respect either.
7. Subsequently, this Appellant sought leave to remain under the Human Rights Act 1998 in a letter of 12th January 2002. This was refused by a notice dated 17th January 2002 and the Appellant appealed under section 65(1) of the Immigration and Asylum Act 1999 on 24th January 2002. It is this appeal which was heard by the Adjudicator, Mr Jordan, in November 2002.
8. Her main claim was based on Article 3 which had a close relationship to the case which she had failed to make in relation to persecution. She did, however, rely upon the success that her brother had had. She also relied under Article 8 upon the fact that she had three brothers in the United Kingdom. One is the brother who was granted asylum on appeal by Mr Phillips, another had been in the United Kingdom for ten years and had originally been granted ELR which had led later to a grant of indefinite leave to remain. A third brother in the United Kingdom since 1996 had had his asylum claim refused and was awaiting the result of a human rights claim from the Home Officer. Her mother and sister were in Canada; her only relatives in Sri Lanka were LTTE members.
9. The Tribunal gave guidance in Devaseelan [2002] UKIAT 00702* as to how an Adjudicator hearing a human rights appeal should approach the findings of fact made by an earlier Adjudicator in the related asylum appeal by the same Appellant. The Adjudicator rightly concluded that the guidelines were relevant to the decision which he had to make. We set out those guidelines from paragraphs 39-42 of the determination.
“(1) The first Adjudicator’s determination should always be the starting-point. It is the authoritative assessment of the Appellant’s status at the time it was made. In principal issues such as whether the Appellant was properly represented, or whether he gave evidence, are irrelevant to this.
(2) Facts happening since the first Adjudicator’s determination can always be taken into account by the second Adjudicator. If those facts lead the second Adjudicator to the conclusion that, at the date of his determination and on the material before him, the Appellant makes his case, so be it. The previous decision, on the material before the first Adjudicator and at that date, is not inconsistent.
(3) Facts happening before the first Adjudicator’s determination but having no relevance to the issues before him can always be taken into account by the second Adjudicator. The first Adjudicator will not have been concerned with such facts, and his determination is not an assessment of them.
(4) Facts personal to the Appellant that were not brought to the attention of the first Adjudicator, although they were relevant to the issues before him should be treated by the second Adjudicator with the greatest circumspection. An Appellant who seeks, in a later appeal, to add to the available facts in an effort to obtain a more favourable outcome is properly regarded with suspicion from the point of view of credibility. (Although considerations of credibility will not be relevant in cases where the existence of the additional fact is beyond dispute). It must also be borne in mind that the first Adjudicator’s determination was made at a time closer to the events alleged and in terms of both fact-finding and general credibility assessment would tend to have the advantage. For this reason, the adduction of such facts should not usually lead to any reconsideration of the conclusions reached by the first Adjudicator.
(5) Evidence of other facts – for example country evidence – may not suffer from the same concerns as to credibility, but should be treated with caution. The reason is different from that in (4). Evidence dating from before the determination of the first adjudicator might well have been relevant if it had been tendered to him: but it was not, and he made his determination without it. The situation in the Appellant’s own country at the time of that determination is very unlikely to be relevant in deciding whether the Appellant’s removal at the time of the second Adjudicator’s determination would breach his human rights. Those representing the Appellant would be better advised to assemble up-to-date evidence than to rely on material that is (ex hypothesi) now rather dated.
(6) If before the second Adjudicator the Appellant relies on the facts that are not materially different from those put to the first Adjudicator, and proposes to support the claim by what is in essence the same evidence as that available to the Appellant at that time, the second Adjudicator should regard the issues as settled by the first Adjudicator’s determination and make his findings in line with that determination rather than allowing the matter to be re-litigated. We draw attention to the phrase ‘the same evidence as that available to the Appellant’ at the time of the first detention. We have chosen this phrase not only in order to accommodate guidelines (4) and (5) above, but also because, in respect of evidence that was available to the Appellant, he must be taken t have made his choices about how it should be presented. An Appellant cannot be expected to present evidence of which he has no knowledge: but if (for example) he chooses not to give oral evidence in his first appeal, that does not mean that the issues or the available evidence in the second appeal are rendered any different by his proposal to give oral evidence (of the same facts) on this occasion.
(7) The force of the reasoning underlying guidelines (4) and (6) is greatly reduced if there is some very good reason why the Appellant’s failure to adduce relevant evidence before the first Adjudicator should not be, as it were, held against him. We think such reasons will be rare.
(8) We do not suggest that, in the foregoing, we have covered every possibility”.
10. Miss Bayati, who appeared before Mr Jordan as she did before us, submitted that the decision in the brother’s case was a fact that occurred after the making of Mrs Symon’s determination and fell to be taken into account under guideline 2. The Adjudicator, however, said:
“The underlying facts, however, on which Mr Phillip’s determination was made, remain unchanged. In other words, issues such as whether the Appellant’s brother and sister were members of the LTTE have not changed, albeit another Adjudicator has reached a different conclusion on those matters on the basis of hearing different evidence”.
11. He then pointed out that the facts upon which the Appellant relied in relation to risk upon return were the very facts which Mrs Symons had found not established in the asylum appeal. Accordingly, in relation to those matters he concluded that he should follow her findings in accordance with guideline 6. He also concluded that guideline 7 did not assist the Appellant. He said at paragraph 22:
“The brother did not give evidence at the hearing of the Appellant’s appeal. He could have done so. I do not consider the fact that he had not received the determination in his own appeal as a satisfactory reason for failing to do so. There may be a number of reasons why two witnesses are not called to give evidence about the same incidents. Clearly, there is a risk that inconsistencies will arise which may be avoided if the evidence is restricted to a single witness”.
12. He then said at paragraph 23:
“In essence, it is submitted that I should approach this appeal by reversing the findings made by Mrs Symons and substituting the much more favourable findings made by Mr Phillips. There were no specific submissions addressed to me as to why I should prefer the conclusions of Mr Phillips to those of Mrs Symons. I accept, of course, that the determination of the one is inconsistent with the determination of the other. For me to prefer the decision of Mr Philips would not remove the inconsistencies. It might mean that the decisions in the brother’s and sister’s case are rendered more consistent but then there would be an inconsistency between the decision in the Appellant’s asylum claim and the Appellant’s human rights claim. Further, looking at the determination of Mrs Symons, it is plain why she reached the decision she did as to the Appellant’s credibility. That approach has been endorsed by the Immigration Appeal Tribunal. On the other hand, whilst Mr Phillips found the brother to be credible, there is little by way of reasoning in his determination that encourages me to prefer his conclusions to those of Mrs Symons”.
13. At this stage, the Adjudicator has already summarised the decisions of both Mr Phillips and Mrs Symons. He pointed out that each Adjudicator was required to reach a decision on the material before him or her and given the differences in the evidence it was not altogether surprising that different conclusions were reached. He pointed out that it had been open to the Appellant and her brother to give evidence in each other’s appeals but they had chosen not to.
14. This conclusion as to the relative value in this appeal of the earlier determinations is in our view entirely justified. Mrs Symons had to deal with a challenge to the credibility of the Appellant, but Mr Phillips, at least in general terms did not have to deal with a challenge to the brother’s credibility because the Respondent argued that even if his evidence were believed, he could not succeed in making out his claim. Mr Phillips reached shortly expressed conclusions in relation to risk on return and persecution. He did not therefore have to consider the issues which plainly and justifiably troubled Mrs Symons.
15. The Adjudicator then pointed out correctly that the Appellant had not raised her brother’s decision in her application for permission to appeal to the Tribunal after receipt of her brother’s determination. The Adjudicator then set out what he considered to be the correct approach for him to adopt in these circumstances. He said that it was for him to take into account the fact that there had been two inconsistent determinations, without attempting to reverse either one of them. He then considered fresh medical evidence directed towards establishing ill-treatment of the Appellant by the Sri Lankan army, evidence that could have been but was not made available in the asylum appeal. He found that it did not assist in establishing that the Appellant was ill-treated whilst in custody. The Appellant made a short statement repeated in evidence before the Adjudicator giving details of her claim to have suffered persecution. The Adjudicator then concluded as follows in paragraphs 29, 30 and 31:
“In my judgment, nothing has happened since the determination of Mrs Symons that causes me to re-open her findings of fact. Just as she was not satisfied that the appellant was at risk of persecution on return to Sri Lanka, I am not satisfied that the Appellant will suffer adverse consequences amounting to a violation of her Article 3 or 8 rights.
The Appellant’s brother gave evidence in line with the statement that he has made and which is to be found at pages 34 to 35 in the Appellant’s Personal Bundle. He reiterated the finds that were made in his favour in his own asylum appeal. In the course of his evidence, the Appellant’s counsel did not seek to re-litigate the facts of what happened in Sri Lanka. Mr Beer, on behalf of the Home Office, did not cross-examine the brother as to what occurred to them in Sri Lanka. There appears to have been some sort of evidential truce based on an underlying assumption that these matters had already been dealt with.
The fact that the brother gave limited evidence that could have been given at the earlier hearing, does not undermine the findings of fact made in the asylum appeal. As a matter of principle as the Devaseelan guidelines suggest, the fact that an Appellant withholds a witness at his first appeal cannot then entitle him (or her) to re-litigate the issue when the witness could have given evidence before. See the seventh guideline”.
16. The Adjudicator then set out the claims under Article 3 and 8. The first part of the claim related to her mental health. The Adjudicator considered a report from Dr Michael Seear of September 2002 who had concluded that the Appellant was suffering from a major depressive episode in respect of which she needed antidepressants and support that might take the form of helpful chats with her GP, for at least a year and possibly up to eighteen months, by which time there should have been a spontaneous improvement. Were she to be returned to a frightening place, she could lose the gains or possibly even deteriorate.
17. However, the Appellant had not been seen by a psychiatrist in the United Kingdom since her arrival in March 1999. There was no evidence that antidepressants were not available in Sri Lanka. The Adjudicator concluded that the Appellant had not established that her medical condition could not be treated in Sri Lanka or that the consequences of her return established a sufficiently real risk, for her removal in those terms to be contrary to Article 3 or 8.
18. He then turned to the pure Article 8 claims as he called it based on her United Kingdom family ties. We have set these out already. She lives with the brother Balarmanan and sees her other two brothers normally at least once a week. She had had no contact with the brother who had joined the LTTE in 1992 since then, nor with the sister who joined the LTTE just before 1999. However, the Adjudicator noted that Mrs Symons had not accepted her evidence that either her brother or sister in Sri Lanka were members of the LTTE. Her brother gave oral evidence to the Adjudicator and was asked some questions about his life in England, though not about events which had happened to him in Sri Lanka. The Adjudicator pointed out that he supported his sister from his income, and could continue to do that if she were in Sri Lanka.
19. The Adjudicator concluded that the Appellant had a family life in the United Kingdom and that her return would inevitably prejudice it. Such, he said, was the inevitable consequence of the fragmentation of this family by the process of immigration and relocation. Had she remained in Sri Lanka, she would have been able to visit her UK relatives as a visa holder and would have been in a position to apply for settlement. He concluded that it would be proportionate for the Appellant to be returned to Sri Lanka. This was based on the finding that she was not at risk of persecution or of inhuman or degrading treatment. He was not satisfied about the position of her brother and sister in Sri Lanka. Her medical condition did not prevent her return. Her position in relation to her mother and sister in Canada would be unaltered.
20. In her submissions before us, Miss Bayati accepted that paragraph 19 of the Adjudicator’s determination in which he set out the Devaseelan guidelines was the correct starting point. The determination of the brother’s appeal was further evidence within the second guideline. The Grounds of Appeal had suggested that where there were two contradictory sets of findings of fact the Adjudicator should have accepted that it is reasonably likely that the more favourable findings in the brother’s appeal were true and should follow those. Miss Bayati, however, was reluctant to submit that that decision amounted by itself to a sufficient basis for the Adjudicator on the human rights appeal to overturn the findings of the Adjudicator in the asylum appeal. She submitted more strongly that at the very least, if there were two inconsistent determinations, the Adjudicator was obliged to reassess the evidence and although he could find the brother not to be credible after hearing all that he had to say, nonetheless his duty was to assess that evidence. The Adjudicator had not assessed it; he had simply said that he could not undermine the decision of the first Adjudicator. He was not bound to accept as true what the brother said, but in this case the Home Office had not cross-examined the brother when he gave evidence in his sister’s second appeal about events in Sri Lanka.
21. Miss Bayati explained that the brother had not given evidence in the Appellant’s first appeal, as a result of an unreported decision of Ognall J on 29th January 1997 called Kimbesa. In Kimbesa, two brothers, who had arrived very shortly before the hearing of the Appellant’s appeal and had claimed asylum, contended that as their cases were very much the same as and involved with that of the Appellant, the three cases should be dealt with together. Ognall J was persuaded that it would be unfair to expect either of the two brothers to give evidence and be tested on it a short time after they had arrived and before they had been interviewed.
22. Miss Bayati said that a practice had grown of Appellants not calling as witnesses those who had yet to have their appeals determined, even if they had had their interview. Indeed, in this case the brother had actually given his evidence on appeal to the Adjudicator before his sister’s first appeal.
23. Miss Hart for the Respondent submitted that the determination by Mr Phillips was unreasoned on the brother’s credibility, because no challenge had been raised to credibility, whereas Mrs Symons had undertaken a full and reasoned assessment of credibility in relation to this Appellant and had rejected it. It was obviously right for this Adjudicator to put more weight on that determination both because it considered credibility in detail and because it specifically related to this Appellant’s case and evidence. She submitted that the determination in the brother’s appeal was not new evidence but rather a new view of the facts, following a different interpretation by another Adjudicator of some of the same evidence.
24. In reality the Adjudicator, it was submitted, had weighed up the merits of the evidence when pointing out that the determination of Mrs Symons was to be preferred and there was nothing that required her determination of this Appellant’s first appeal to be re-thought. The evidence which was placed before Mr Jordan by the brother could have been placed before Mrs Symons but was not. It could have been appealed and was not.
Conclusions
25. The Adjudicator was right to treat this as a case to which the guidelines in Devaseelan applied. That much was common ground at least as a starting point. They applied because this was a second appeal. Devaseelan does not directly deal with the consequences for such an appeal of subsequent credibility findings which are to a degree inconsistent with the credibility findings in the first appeal. Its guidance nonetheless enables a proper answer to be given.
26. The determination letter in the brother’s appeal was said, tentatively, inevitably to be sufficient of itself to overturn the findings in the Appellant’s first appeal. The argument was put more boldly in the Grounds of Appeal. It appears from paragraph 23 of Mr Jordan’s determination that that is how the argument was put to him.
27. The suggestion was that in the light of the standard of proof in asylum and human rights cases, the decision in the brother’s appeal raised a reasonable doubt about the untruthfulness of the Appellant’s story as concluded by the first appeal Adjudicator, and she should now be given the benefit of it. We cannot accede to that suggestion. The second Adjudicator must look at the determination of the first Adjudicator in the framework provided by the guidelines in Devaseelan. He must examine the material before him in the light of the conclusions reached on the evidence before the first Adjudicator. He cannot simply defer to a different decision, albeit one to which his appeal is related, on the grounds that it is more favourable to the Appellant’s version of events, regardless of the issues raised, the way the case was presented, or the evidence given or the nature of the first Adjudicator’s reasoning and conclusions or the availability of evidence which was not provided. It would be wholly inappropriate for related Appellants to make what may be tactical decisions about which witnesses to call, perhaps hoping to avoid the exposure of contractions which could damage all their cases, and then to require an Adjudicator to follow whichever was the most favourable to an Appellant regardless of that Adjudicator’s own assessment of the evidence placed before him.
28. The second Adjudicator was correct to say that he had to take into account that there were two inconsistent determinations without attempting to reverse either of them. But the brother’s determination is not itself a fact which has happened since the first appeal, in the context of the second Devaseelan guideline. The starting point is always the first Adjudicator’s decision. The purpose of the second guideline was to deal with relevant events which thereafter happened which could cause an Adjudicator hearing a human rights appeal to consider reaching a different conclusion from the earlier asylum decision. The obvious example is where subsequent events cause a rejected persecution claim to be re-examined when put forward as an Article 3 claim. But here the Appellant seeks no more than a different appraisal on different evidence of the same or some of the same facts. That is not what the guidelines had in mind to permit.
29. Alternatively, if the Appellant’s point is simply that the brother’s determination had to be looked at to see if, of itself, it justified overturning the Appellant’s first adjudication, acknowledging that it could not do so automatically and solely because it was more favourable, the second Adjudicator did that and for the reasons which he gave in paragraph 23, he rejected that. We agree with his assessment of the two determinations. That of Mrs Symons is a detailed and thorough examination of credibility, following cross-examination. That issue was not really raised before Mr Phillips, because the HOPO had expected to win, even taking the brother’s case at its highest. It would have to be a remarkable set of circumstances justifiably to cause the second Adjudicator to set aside the findings of the first simply in the light of the findings of another Adjudicator in another person’s appeal on different evidence and arguments. A difference of view as to the credibility of a witness would not of itself remotely suffice.
30. Here, the real point in the appeal relates to the evidence which the brother gave at his sister’s second appeal, in the light of the acceptance of his evidence at his own appeal, rather than that determination being a new fact by itself. Evidence of that sort is governed by guidelines 4, 6 and 7. That evidence had to be taken into account and appraised, submitted Miss Bayati, which the Adjudicator had not done.
31. Guideline 4 deals with facts not brought to the attention of the first Adjudicator and the need for the greatest of circumspection when they are raised in the second appeal. The adduction of such facts should not usually lead to any reconsideration of the conclusions reached by the first Adjudicator. This guideline does not help the Appellant. The relevant evidence for these purposes given in the sister’s second appeal by the brother related to events in Sri Lanka rather than to events in the United Kingdom. The evidence was given in a written statement which in this respect stood as the brother’s evidence in the Appellant’s appeal and was not elaborated on. There is nothing new in the few short paragraphs except for the reference to the outcome of his appeal and the fact that, although Mr Phillips did not refer to his sister’s arrest, that had been before him from the interview records. All the substantive points which he made were before the first Adjudicator through his sister’s evidence. There is nothing in the brother’s statement for example which deals with any of the points which the first Adjudicator raised as to why she found inconsistencies and implausibilities in the sister’s evidence. In short, it wholly fails to address any point which would naturally have had to be considered by any Adjudicator who was being asked to reach a different conclusion from the first Adjudicator. It is not necessary to consider it even with great circumspection. There is no new material at all – apart from the result of the brother’s appeal which could have been raised before the Immigration Appeal Tribunal when leave to appeal was sought from the decision of Mrs Symons and refused.
32. Guideline 6 is in point because the facts relied on before Mr Jordan were not materially different from those before the first Adjudicator and the case was supported by “the same evidence as that available to the Appellant at that time…”. Accordingly, the Adjudicator was obliged to regard the issues as settled by the first Adjudicator’s determination and had to make his findings in line with that determination. Although the brother was a witness whose evidence had not been given to the first Adjudicator, the evidence which he gave was not materially different from that given by his sister in her first appeal. He was a witness who had been available to give evidence in that appeal. He did not do so.
33. Nothing in guideline 7 helps the Appellant because the reason given for the evidence not being given in the first appeal was not a very good one. We were told that this was because of the practice to which we have referred. But that practice, if it existed, was never sanctioned by the Tribunal; it was based on a complete misreading of Ognall J’s decision in Kimbesa. It was a case that depended upon earlier Rules, an application being made for an adjournment and evidence that was to be given in an appeal shortly before the asylum interview; so it does not parallel the present case. Kimbesa also dealt with the Procedure Rules which were superseded by the 2000 Rules. The provisions in relation to adjournment were made very much tighter in Rule 31(1) of the 2000 Rules than they had been.
34. In Rajan 8th February 2002 CC/51103/99 (01/TH/0244*) the general inapplicability of Kimbesa was dealt with. There was and is no obligation to adjourn pending appeals, if there are concurrent applications by relations, and Kimbesa was not authority for that proposition. We can see no reason why somebody should not give evidence in an appeal, whilst their own appeal determination remains outstanding or before they have given evidence in their own appeal. It is particularly undesirable for that witness to be brought in to give evidence at a subsequent appeal. Now that second, human rights, appeals should be diminishing in numbers, it is yet more important that all the evidence is brought forward to be dealt with at the first opportunity; that is because it will be generally the Appellant’s only opportunity. As the Adjudicator in this case pointed out correctly, a second witness may not be called in the first appeal for the tactical reason that discrepancies and contradictions may arise and wedges may be driven between the different accounts; thus it is hoped to advance the prospects of success for an Appellant by limiting those opportunities. It is highly undesirable for parties to litigation to seek to avoid that risk and then to bring the evidence in when the initial strategy has not succeeded. The appeal system does not permit an attempted finesse, followed by a replay of the lost trick.
35. It is to be hoped that any misconception as to the propriety or fairness of an Appellant giving evidence in someone else’s appeal, when he has yet to give evidence in his own appeal or that appeal has yet to be determined, can be laid to rest.
36. Guideline 8, however, points out that the guidelines do not cover every eventuality; but the major categories are covered and the principles should be applied. The factor which is not explicitly dealt with in the guidelines is the effect of a determination which has reached a relevant but different credibility finding. It is relevant to consider that other determination, the evidence which was given and the arguments addressed. It is relevant to see how far it contains factors not before the first Adjudicator and the extent to which it addresses matters of concern to the first Adjudicator. It would be relevant to examine any later evidence supplied to the second Adjudicator but to do so with the guidelines 4, 6 and 7 firmly in mind. But it would be wrong for the second Adjudicator not to give the greatest weight to the decision of the first Adjudicator. The principles of the guidelines still apply to that situation. We consider that that is how this Adjudicator in fact approached the problem.
37. It was said that there was nonetheless an obligation on the Adjudicator to assess the evidence of the brother in the appeal and that had not been done. Miss Bayati referred to the language of paragraph 30 of the determination. She said that the decision had merely been noted but the evidence had not been appraised. The first sentence of the paragraph is not as clear as it might be; it could be read as confining consideration to the mere fact of the brother giving evidence. But that is too narrow a reading of it. There is a short appraisal of the evidence in the word “limited”. It is indeed limited evidence as we have discussed above. There is nothing in it which could or should have impelled the second Adjudicator to a different conclusion about its weight, or to a different conclusion as to the sister’s credibility.
38. If the second Adjudicator did not in fact appraise the further evidence, we are in as good a position as he was to do so, because the relevant evidence was in written form and not supplemented by oral evidence from the brother. There is nothing of substance in it to warrant a change in the first Adjudicator’s conclusions on credibility. There is no new material as such. The evidence does not begin to grapple with the reasoning of the first Adjudicator in rejecting the sister’s credibility. The mere fact that another Adjudicator, on different evidence and argument, had reached a different conclusion as to the credibility of the brother does not mean that the same view should be taken of the sister’s evidence. There is nothing in the coherence or thoroughness of the determination in the brother’s appeal which makes it intrinsically more persuasive than that in the sister’s first appeal. It is the reverse. But there was no real challenge anyway to the brother’s credibility in his appeal because, as we have said, the focus of the Secretary of State’s argument was that he could safely be returned even if what he said was true. His evidence was not conceded to be correct in this appeal and the case was presented by the Home Office Presenting Officer to the second Adjudicator as one which was in effect covered by the guidelines, as in principle it is. The fact that this means that there are to a degree inconsistent credibility findings is not desirable, but it is the consequence of the way the two chose to give evidence. We uphold the determination of the second Adjudicator.
39. It was accepted that if we were to do so, there was no need to consider the other points which related to Article 3 and 8. Permission to appeal had been in effect refused on those grounds. Miss Bayati made submissions in relation to those matters in case we reached a conclusion favourable to her on the Grounds of Appeal which was permitted, but then wished to consider human rights issues rather than remitting the matter to another Adjudicator. We can record them and our conclusions briefly. This assumes that the Appellant’s evidence had been accepted, so it is in part on a false hypothesis.
40. The Appellant would be returning to Sri Lanka as a single woman from the Jaffna area, who had had a low level involvement with the LTTE, doing sewing work for three months. She had a brother and sister somewhere in Sri Lanka who were LTTE members, the sister joining after the Appellant had left. She had been detained once with her brother briefly and then both had been released nearly 6 years ago. She had been ill treated in detention. She had some body scarring. She had no family in Sri Lanka whose whereabouts she knew or could access. Her home village was within a High Security Zone to which she would not have access. A medical report from September 2002 found her to be suffering from a major depressive episode which required antidepressants and support in the form of helpful chats with her GP. If she stayed in Colombo she would be an unsupported single female, which according to a report by a Dr A Good on a fact-finding visit in August 2003, would be completely unfeasible. It was culturally unacceptable for a single woman to live on her own. The HSZs had created a large number of refugees in Jaffna, covering as they did some thirty percent of it. The UNHCR were cautious in its assessment of the position. It was premature to advocate the return of all asylum seekers to Sri Lanka. Miss Bayati drew attention to the fact that the President had declared a state of emergency, albeit now reserved, and that there were more roadblocks and searches. There was less scope for optimism about the ceasefire and its durability. Dr Good suggested in his August Report that the LTTE were using the ceasefire to regroup and infiltrate Colombo and assassinating Tamil opponents. The October 2003 CIPU Report predated the uncertainties created by the actions of the President and her rift with the Prime Minister.
41. We do not accept the submissions in relation to either Article 3 or 8. Her medical condition was said to be one which antidepressants and gentle support for a year or perhaps eighteen months would resolve. That time has very nearly elapsed since the report was compiled. The fear of a return of the condition must be seen in the light of the availability of antidepressants in Sri Lanka. She does not require specialist treatment or support. She has another brother whose asylum claim in this country has failed, who is waiting upon the determination by the Home Office of his human rights claim. There is nothing before us to suggest that he could not return. The brother who was granted refugee status with whom she lives can continue to send her financial support, as he now supports her, so she would not be an unsupported female in Colombo. Her family life here is with the brother with whom she lives and with another who has indefinite leave to remain; it is more precarious with the brother whose asylum claim has been rejected. She would experience some disruption to that family life. Her family is also in Canada, and her relations with them would not be disrupted. We accept the Adjudicator’s conclusions on this in paragraphs 41 and 42.
42. As to the concern about the return of a single female to Colombo, we are not persuaded that that is shown to be sound, by the single source from which it comes. She would not be unsupported financially, even if she were alone and even if her unsuccessful asylum-seeker brother were not to return. She would be in a position to find accommodation, whether or not in someone else’s house, in a capital which has many refugees from the civil war and many Tamils. Dr Good’s report in paragraph 76 refers to the fact that in Jaffna there are 20,000 female-headed households, who often live alone even though they feel that they have no security.
43. On a more general level, Miss Bayati recognised that the cautious note sounded by the UNHCR was the same as sounded before the Tribunal decided in Jeyachandran [2002] UKIAT 01689 that it was only the exceptional case which would not be able to return in safety. The position was reviewed in Thiagarajah [2002] UKIAT 04917. The current problems have been considered in a number of cases and the consistent position has been that the recent developments do not warrant a change in that assessment. Miss Bayati recognised that we should refer to our own reported cases on these country conditions. The pessimism in Dr Good’s report of August 2003 is consistent with the pessimistic line which he has taken in the past, an approach which was considered by the Tribunal in May 2003, in P (Sri Lanka) [2003] UKIAT 00145. The current problems had not occurred by the time of his August report. That decision also considered the availability of medical treatment in relation to a case where the problems of the claimant were markedly more severe than here. He had been detained as a LTTE supporter and ill treated on a number of occasions. Nonetheless, the Tribunal concluded that he could be returned.
44. The position after the declaration of the state of emergency was considered in N (Sri Lanka) [2003] UKIAT 00150 in which the Tribunal also dealt with body scarring. That was not seen as a bar to return. The October CIPU does not deal with the current position politically, as between the President and the Prime Minister. Nonetheless, the essential features are that the ceasefire is still holding, the ban on the LTTE remains lifted, it engages in political activities outside its area of control, even if it has an unsavoury and violent undertone to some of what it does, as Dr Good suggests. There is nothing in any evidence which we have seen to suggest that the picture in the October 2003 CIPU Report or in the determinations to which we have referred, has significantly changed as regards the way returning asylum seekers are treated on arrival or in the way in which searches are carried out. There may be greater tension and a higher incidence of searches and roadblocks; there may be more arbitrary restrictions imposed on the free movement of goods and people, as the UNHCR letter of 8th December 2003 to Sri and Co says may have happened. But that does not support the notion that there would be a real risk of treatment which breached Article 3. The assessment made in Jeyachandran and subsequent cases remains good. There is nothing to suggest that the Appellant is wanted in a relatively serious way. She was a low level supporter briefly detained, and released, who without further arrest later made her way to Colombo whence she department through the series of checks at the main airport.
45. Accordingly, even had we concluded otherwise in relation to the Appellant’s credibility, we would not have allowed her appeal. It is dismissed.
MR JUSTICE OUSELEY
PRESIDENT