Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: UI-2021-001302
(IA/02572/2020) PA/52695/2020

THE IMMIGRATION ACTS

Heard at Field House, London
Decision and Reasons Promulgated
On Friday the 8 April 2022
On Tuesday the 14th June 2022

Before

UPPER TRIBUNAL JUDGE SMITH

Between

N B
[ANONYMITY DIRECTION MADE]
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
An anonymity order was made by the First-tier Tribunal. As this is an appeal on protection grounds, I continue that order. Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies, amongst others, to both parties. Failure to comply with this direction could lead to contempt of court proceedings.

Representation:
For the Appellant: Ms F Allen, Counsel instructed by AASK Solicitors
For the Respondent: Mr D Clarke, Senior Home Office Presenting Officer.

DECISION AND REASONS
1. The Appellant appeals against the decision of First-tier Tribunal Judge Plumptre dated 27 September 2021 (“the Decision”). By the Decision, the Judge dismissed the Appellant’s appeal against the Respondent’s decision dated 28 December 2020 refusing his protection and human rights claims. This is the Appellant’s second appeal. The earlier appeal was rejected on the basis that the Appellant’s claimed risk on return was not credible.

2. The Appellant is a citizen of Sri Lanka. He came to the UK in 2015 and claimed asylum. His current protection claim is predicated both on risk arising from his past in Sri Lanka and on his sur place activities, particularly as a member and supporter of the TGTE.

3. Judge Plumptre did not find to be credible the Appellant’s claim to be at risk based on what he said had happened to him in the past. She relied in that regard on the findings of the previous Judge. In relation to his sur place activities, the Judge found that the Appellant was not genuinely committed to the Tamil separatist cause. She found that his role was not significant and that he would not have any profile within the TGTE which would bring him to the attention of the Sri Lankan authorities. Relying on the findings of the previous Judge, she found that the Appellant would be able to return to Sri Lanka on his own passport and would not be on any wanted or stop list ([32] of the Decision).

4. The Appellant appeals the Decision on several grounds. First, he says that his motivation for joining and supporting the TGTE is irrelevant to the risk which arises therefrom. Second, he says that the Judge has failed to have regard to the relevance of the membership cards produced which show that the Appellant is not only a member of a proscribed organisation but also an organiser. It is also said that the Judge ignored evidence from the TGTE MP Sockalingam Yogalingam which set out in letter form the activities in which the Appellant was involved. The Judge is also said to have ignored or failed to make clear findings about the risk arising from the Appellant’s association with his brothers who were LTTE members. Finally, it is said that the Judge has failed to follow the recent country guidance in KK and RS (Sur place activities; risk) Sri Lanka CG [2021] UKUT 0130 (IAC) (“KK”) in relation to the relevance of membership of the TGTE without more.

5. Permission to appeal was granted by First-tier Tribunal Judge Gumsley on 23 November 2021 in the following terms so far as relevant:

“..2. I have had regard to the Grounds of Appeal as advanced and the Decision and Reasons in full.
3. Having done, although the FtT Judge appears to set out the evidence before her in some detail and in doing so is plainly aware of the Appellant’s involvement in sur place activities as was stated in paragraph 14 of the Grounds of Appeal, the findings made as to the (actual or what would be perceived) lack of profile is flawed. I am also satisfied that it is arguable that the Judge (whilst perfectly entitled to find that the Appellant’s motivation was not genuine) placed too much emphasis upon this when assessing risk. The other Grounds, in my view, have far less merit but in the circumstances, I do not seek to restrict the Grounds which may be argued.
4. Permission to appeal is therefore granted upon that basis.”

6. At the outset of the hearing, Mr Clarke indicated that he conceded there was an error of law in the Decision for reasons I have set out below. Although he was not prepared to concede all of the grounds and I heard submissions also from Ms Allen as to the extent of the error (also see below), I formed the view that I did not need to reach a view on the merit of the grounds taken individually. This is an appeal which turns largely on credibility and assessment of risk based on facts as found. As a result of the error conceded, and as Mr Clarke fairly accepted, it is not appropriate to preserve any of the findings made and the appeal will have to be determined entirely afresh.

7. I therefore found there to be an error of law in the Decision. I set the Decision aside without preserving any findings. I agreed with the representatives that it was appropriate to remit the appeal as it needs to be determined entirely afresh which will require findings to be made on all aspects of the claim. I indicated that I would set out my reasons for the concession and finding of error of law briefly which I now turn to do.

8. Mr Clarke accepted that the Judge failed to make findings about the risk to the Appellant if returning to Sri Lanka on his own passport. He did not accept that the Judge had made any error at [32] of the Decision in reaching the finding that the Appellant would be able to travel on his own passport. However, he submitted that, although the “pinch-point” for an individual travelling on his own passport would be different, the Judge still needed to make a finding whether the Appellant’s profile would mean that he would be known to the authorities and whether he would be at risk on that account (having regard to the factors set out at [477] to [501] of KK).

9. Ms Allen pointed out that the Appellant’s case is that he does not have a valid passport. His case before the previous Judge (whose decision appears at [B2-12] of the Respondent’s bundle) was that he left Sri Lanka using his own genuine passport in 2015 and travelled to Malaysia where an agent provided him with a false passport which he used to enter the UK. The finding of the previous Judge (at [35] of that decision) was that the Appellant would be able to apply for a replacement of his genuine passport and could use that to re-enter Sri Lanka. Ms Allen pointed out that this still entailed an application being made by the Appellant to the Sri Lankan authorities. She said that this would still alert the authorities to the Appellant who would still be placed on a stop or watch list. She drew attention to [508] of KK as follows:
“The position of returnees in possession of a valid passport is different, but only to a limited extent. The evidence indicates that such individuals will not be part of the readmission process and that the authorities at BIA will not automatically be provided with their names in advance of arrival, in contrast to those returning on a TTD. We conclude that such returnees will not automatically be subject to questioning on arrival as regards the establishment of identity: their passport will confirm this. However, it is the case that passports are swiped at immigration control. It would be fanciful to suppose that the terminals used for this are not linked to the general electronic database and the stop list and watch list derived therefrom. If the individual appears on one or other of the two lists it is reasonably likely that they will be questioned further.”

10. That reference is not entirely apposite as it pre-supposes that an individual will have a valid passport and not be in the position of having to re-apply for one prior to return. As Mr Clarke pointed out, though, there is no evidence of what the Sri Lankan authorities would know in consequence of such an application. As I have already indicated, Mr Clarke accepted that the more relevant question in any event is whether the Appellant has such a profile that the authorities would have any interest in the Appellant at whatever stage they became aware of his return or potential return. It was the Judge’s failure to consider that latter point which gave rise to the error which he conceded existed. As he also pointed out, in all likelihood, the Appellant having been alerted to this lacuna in the evidence about the procedure for obtaining a replacement passport, would obtain evidence about this prior to the next hearing of his appeal. The point was not therefore something I needed to consider or decide.

CONCLUSION

11. In conclusion therefore, I find that there is an error of law disclosed by the Appellant’s grounds taken together and based on the Respondent’s concession. I set aside the Decision. It is not appropriate to preserve any part of the Decision as the appeal turns largely on the credibility of the claim coupled with an assessment of risk based on the findings made about that claim. As the Appellant’s credibility is at the core of this appeal and the appeal will have to be redetermined entirely afresh, it is appropriate to remit the appeal to be re-heard.

DECISION
I am satisfied that the Decision involves the making of a material error on a point of law. The Decision of First-tier Tribunal Judge Plumptre dated 27 September 2021 is set aside in its entirety. No findings are preserved. The appeal is remitted to the First-tier Tribunal for re-hearing before a Judge other than Judges Plumptre or Walker (who determined the Appellant’s first appeal).

Signed L K Smith Dated: 12 April 2022
Upper Tribunal Judge Smith