Tribunal decisions

The decision

Upper Tier Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00357/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 20 January 2017
On 26 January 2017

Before

Deputy Upper Tribunal Judge Pickup

Between

Secretary of State for the Home Department
Appellant
and

TK
[Anonymity direction made]
Claimant

Representation:
For the claimant: Ms B Nunhoo, instructed by Kulendran
For the appellant: Mr S Staunton, Senior Home Office Presenting Officer

DECISION AND REASONS
1. This is the Secretary of State's appeal against the decision of First-tier Tribunal Judge Lawrence promulgated 29.11.16, allowing on asylum, humanitarian protection, and human rights grounds the claimant's appeal against the decision of the Secretary of State, dated 8.1.16, to refuse her protection claim.
2. The Judge heard the appeal on 2.11.16.
3. First-tier Tribunal Judge Murray granted permission to appeal on 22.12.16.
4. Thus the matter came before me on 20.1.17 as an appeal in the Upper Tribunal.
Error of Law
5. In the first instance I have to determine whether or not there was an error of law in the making of the decision of the First-tier Tribunal such that the decision of Judge Lawrence should be set aside.
6. Briefly summarised, the claimant's case was that she and her husband were members of a political party and ardent supporters of the LTTE, such that they gave refuge to wounded LTTE combatants who had fled Sri Lanka. In 2010 first her husband and then she was arrested, interrogated and mistreated by torture, including by being burnt with a cigarette butt. She also claims that she was raped. Bail was secured by bribery and she and her husband were released after signing a document. They did not surrender to bail but went into hiding until arrangements were made for them to flee India. She fears that if returned to India she would be returned to prison and again mistreated.
7. It is clear from a reading of the decision and in particular from [28] that Judge Lawrence found both the claimant and her witnesses credible. At [30] the judge found the evidence of physical injuries consistent with her account, and concluded that she had been arrested, detained, tortured, raped, sentenced to imprisonment, and that her release from prison was secured by bribery.
8. The judge was satisfied that if returned to India the claimant would be detained in conditions which breach international norms and is likely to be sexually assaulted or raped in custody. The judge concluded that she qualifies as a refugee in need of international protection, and cannot benefit from internal relocation. I find that the judge made a careful and detailed assessment of the evidence and gave clear and cogent reasons for the conclusions drawn.
9. The grounds of appeal complain that the judge ignored and failed to take into account in assessing the claimant's credibility, pursuant to section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, of the the significant delay of some 5 years between her arrival in the UK in 2010, on the basis of a 6-month visit visa, and her claim for asylum made in March 2015, only after she was encountered by Immigration Officers and served with a notice of liability to removal as an overstayer. It is submitted that this failure undermines the overall credibility assessment. Allied to this ground is the failure to take into account that despite allegedly being wanted by the authorities, the claimant went to the British High Commission to submit her biometrics for her visit visa, and that she left India on her own passport.
10. I accept that the judge failed to refer to the delay when or before assessing credibility, although it is clear that he was aware of the fact of the delay, which is mentioned in the decision. I reject the submission of Ms Nunhoo that the judge expressly took the delay into account at [29] of the decision; I cannot read that into [29]. However, it transpires that the claimant was asked about the delay during the appeal hearing and as part of her evidence it was clear that she was reluctant, for obvious reasons, to talk about the rape that took place whilst she was in prison. That is certainly alluded to at [29], with the judge referring to the stigma he accepts she felt, and which appears to have been the reason why her husband abandoned her some 2 months after arriving in the UK.
11. Although delay was not expressly taken into account in the overall assessment of credibility, and accepting that the Tribunal was required to take account of that delay as potentially damaging the claimant's credibility, I find that the error cannot be material. Given the extent to which the judge accepted virtually every part of the appellant's case, it cannot be that even with taking full account of the delay in claiming asylum as damaging to her credibility, the section 8 matters could have resulted in any different outcome. If, for example, the judge had reached the finding he did on credibility as to the claimant's account, as well as that of her witnesses, and noting the expert evidence fully supported her account, but then stated because of the section 8 delay delay considerations the account had to be rejected, it would have been perverse and irrational. On the facts of this case, I cannot see that even taking full account of the five year delay as damaging the claimant's credibility, and ignoring any reluctance to talk about the distressing events such as rape, any different conclusion as to the core claim could have been reached. In the circumstances, I reach the conclusion that the error was not material.
12. A further and potentially more significant ground of appeal is that it is alleged that the judge failed to make findings as to why the claimant would still be at risk some 5 years or more after the claimed events, and why the State of India would have any continuing interest in her, save for a passing reference to an anonymous phone call, the significance of which is said to be unclear.
13. However, a simple consideration of the accepted facts fully explains why the judge accepted that she would be at risk on return. The claimant was not merely released from prison on completion of a sentence, but was released on bail, which was itself obtained by bribery. Being on bail implies that the claimant would have had an obligation to return to court or prison at some point in the future. She avoided that criminal legal process by fleeing the country. It follows that on return to India she is liable to be returned to prison and further prosecuted for jumping bail. There may also be some adverse consequences arising from obtaining her release through corruption.
14. The judge addressed prison conditions in India from [11] onwards of the decision, referring to the Home Office COIS report, which in turn cites a 2013 US State Department report describing poor prison conditions in India, which do not meet international standards, and that there continues to be a serious problem of custodial rape of female detainees. The claimant asserts that not only was she raped by two policemen, but that afterwards they put a stick up her vagina. On examination of the claimant's genital area, the expert witness observed direct trauma which could be due to traumatic sexual intercourse and was thus consistent with the claimant's account.
15. In the circumstances, I find that the First-tier Tribunal Judge has given clear, cogent reasons justifying why the claimant would still be at risk on return, even 5 or more years after fleeing India. The evidence is that she is likely to remain of adverse interest to the authorities and that if imprisoned, she is at real risk of mistreatment or a real risk of serious harm.
16. It follows that the grounds of appeal fail to identify sufficient material error of law in the making of the decision to require it to be set aside. Neither can it be said that the decision was perverse or irrational.
17. If satisfied to the lower standard of proof that the claimant qualified for refugee status, it was unnecessary for the judge to also allow the appeal on humanitarian protection and human rights grounds. However, it make no material different to the outcome or consequences of allowing the appeal.
Conclusions:
18. The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law such that the decision should be set aside.
I do not set aside the decision.
The decision of the First-tier Tribunal on asylum grounds stands and the appeal of the claimant remains allowed.

Signed

Deputy Upper Tribunal Judge Pickup

Dated 23 August 2021

Anonymity
I have considered whether any parties require the protection of any anonymity direction. No submissions were made on the issue. The First-tier Tribunal made an order pursuant to rule 13(1) of the Tribunal Procedure Rules 2014.
Given the circumstances, I continue the anonymity order.

Fee Award Note: this is not part of the determination.
In the light of my decision, I have considered whether to make a fee award pursuant to section 12(4)(a) of the Tribunals, Courts and Enforcement Act 2007.
I have had regard to the Joint Presidential Guidance Note: Fee Awards in Immigration Appeals (December 2011).
I make no fee award.
Reasons: No fee is payable and thus no fee award can be made.

Signed

Deputy Upper Tribunal Judge Pickup

Dated 23 August 2021