Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00935/2016
PA/00939/2016
PA/00940/2016

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On Thursday 16 February 2017
On Monday 27 February 2017

Before

UPPER TRIBUNAL JUDGE SMITH

Between

A S K D
D S K K S G D
I A K K D
(ANONYMITY DIRECTION MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M Murphy, Counsel instructed by Nag Law solicitors
For the Respondent: Ms Z Ahmad, Senior Home Office Presenting Officer

Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
Anonymity was granted by the First-tier Tribunal. The case involves protection issues and it is therefore appropriate to continue that order. Unless and until a tribunal or court directs otherwise, the Appellants are granted anonymity. No report of these proceedings shall directly or indirectly identify them or any member of their family. This direction applies both to the Appellants and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

DECISION AND REASONS
Background
1. The Appellants appeal against a decision of First-Tier Tribunal Judge Fox promulgated on 19 October 2016 ("the Decision") dismissing the Appellants' appeals against the Secretary of State's decision dated 21 January 2016 refusing their protection and human rights claims. The appeal against the Decision relates only to dismissal of the appeal on protection grounds.
2. The Appellants are nationals of Sri Lanka of Sinhalese ethnicity. Their protection claim is founded upon the First Appellant's previous employment as the general manager of a nightclub in Colombo. It is asserted that, in that capacity, in January 2010, he employed a Tamil employee with whom he became friends, that this employee was found dead following a period of home leave and that the First Appellant was then arrested and detained by the Sri Lankan CID. It is said that during this detention, he was questioned about the employee who it is said was a member of the LTTE. It is claimed that the First Appellant was tortured during this period of detention.
3. Having been released on bail and having lost his job on account of these events, the First Appellant claims he was then arrested and detained for a further period during which he was again tortured and accused of assisting LTTE members and having provided funding for the LTTE. Following his release on bail, he left Sri Lanka with his wife. It is said that he was assisted in doing so by an agent who bribed an officer to get them through the airport. It is claimed that the Sri Lankan authorities continue to be interested in the First Appellant who is now also in breach of his bail conditions.
4. In support of his protection claim, the First Appellant has produced an arrest warrant and a letter from his lawyer in Sri Lanka. The Respondent has produced a document verification report in relation to the arrest warrant following enquiries made by the British authorities of the Sri Lankan CID. That report asserts that the arrest warrant is not genuine.
5. The First Appellant's account of being employed as a nightclub manager and having employed the Tamil employee as claimed is accepted. It is also accepted that the Tamil employee is dead. The rest of the First Appellant's account was not however accepted by the Respondent.
6. In the Decision, the Judge found the First Appellant's account of the events not to be credible. He did not accept that the First Appellant had been detained and ill-treated as alleged. He did not accept that the Sri Lankan authorities have any interest in the First Appellant. Accordingly, he dismissed the Appellants' appeals.
7. Permission to appeal was granted by First-tier Tribunal Judge Saffer on 22 November 2016, on the basis that the Judge may have erred by requiring corroboration of the First Appellant's claim. Although he considered the other grounds to have less weight, the Judge granted permission on all grounds.
8. The matter comes before me to decide whether the Decision contains a material error of law and, if so, to re-make the decision or remit the appeal for rehearing to the First-Tier Tribunal.
The grounds and submissions
9. The Appellants' first ground is that the Judge failed to consider relevant evidence and that he required corroboration of the First Appellant's account. That latter point arises from a number of instances where the Judge refers to the lack of "eye witness detail" ([51], [61], [83] of the Decision). Mr Murphy suggested that this could only be read as requiring the Appellants to produce evidence from a third-party source.
10. In reply on this point, Ms Ahmad accepted that the terminology was odd but did not accept that the reference pointed to a requirement for corroboration. In particular, she noted that at [61] and [83] the Judge there is making reference to the First Appellant's own evidence. She submitted that the words are in fact otiose and that all the Judge is saying is that there is a lack of detail in the evidence.
11. Mr Murphy's oral submissions focussed on the remainder of that ground which includes challenges to factual findings on the basis that the Judge has misunderstood the First Appellant's evidence. The first of those errors is at [51] of the Decision where the Judge does not accept the First Appellant's account of the first period of detention because he does not accept that the First Appellant would be able to return to work three days after release if he had been tortured as claimed, apparently without any person remarking on the injuries he would have sustained from the ill-treatment alleged. Mr Murphy took me to [33] of the First Appellant's statement where he says that after the torture occurred, he was transferred to a prison for a period of fourteen days prior to release during which time he was not beaten any further. Mr Murphy pointed out that the Judge had failed to make reference to or take into account that evidence.
12. In reply, Ms Ahmad initially sought to submit that the witness statement was inconsistent with the First Appellant's account during interview. She was though constrained to accept that the answers to which she referred related to the second period of detention and that in fact the answers given about the first period of detention were consistent with the witness statement. She accepted that the Judge had not taken that evidence into account.
13. Mr Murphy also pointed me to the Judge's finding at [58] of the Decision where the First Appellant's claim was found to be implausible because the First Appellant was only the employer of the Tamil employee concerned and that would be unlikely to provoke interest in him by the Sri Lankan authorities for LTTE connections. Mr Murphy said that this ignored the substance of the case which the First Appellant asserted was being made against him for helping other LTTE suspects. He also pointed out that the First Appellant's evidence was not simply that he and the Tamil employee were employer and employee but that he had befriended him, assisted him to find accommodation and had helped out the family with the cost of the funeral arrangements.
14. Turning then to the second ground, the Appellants challenge certain of the Judge's findings on the basis that they involve impermissible speculation. Mr Murphy conceded that the point made in the grounds about the Judge's acceptance that he had not put all points to the First Appellant was factually incorrect. The reference at [83] of the Decision is to the Second Appellant. He submitted however that the remainder of that ground was made out. He pointed in particular to [55] of the Decision where the Judge finds implausible that the First Appellant would be targeted by the authorities when they had not similarly targeted the family of the Tamil employee. Mr Murphy pointed out that there was no evidence one way or another about whether the family had been targeted and he said this was an example of the Judge failing to put this point to the First Appellant during his evidence.
15. Mr Murphy relied in this regard on the Court of Appeal's judgment in Secretary of State for the Home Department v Maheshwaran [2002] EWCA Civ 173. He relied in particular on what is said at [4] of that judgment concerning fairness. In her reply, Ms Ahmad pointed to what is said at [5] of the judgment. As I pointed out, as the Court of Appeal remarked in that case at [6] "the requirements of fairness are very much conditioned by the facts of each case". Ms Ahmad did not make any submissions in response to Mr Murphy's main point on ground two concerning the instance of speculation which is asserted.
16. Ground three focusses on the Respondent's document verification report concerning the arrest warrant (see reference at [4] above). Much of Mr Murphy's challenge in this regard was focussed on what the Respondent herself had done when seeking to verify the document and whether that should have been done differently (for example by making enquiries of the Court rather than CID and making enquiries also of the lawyer who had written the letter on which the Appellants rely). He made reference a number of times to the case of PJ (Sri Lanka) v Secretary of State for the Home Department [2014] EWCA Civ 1011 which deals with the process of verification and the burden of proof to be applied and weight to be given to such evidence.
17. As I reminded Mr Murphy, the question for me at this stage is not what the Respondent did or did not do when seeking to verify the arrest warrant but what error of law the Judge made when dealing with that evidence. Ultimately, his submission in that context appeared to me to amount to a criticism of the Judge's reliance on the document verification report without critical evaluation of it and without taking into account the Appellants' submissions about the weight which that should be given.
18. In reply, Ms Ahmad accepted that it would be open to the Judge to find that the document verification report was unreliable. She submitted however that it could not be said that, just because the information emanated from the Sri Lankan CID that it was bound to be unreliable. Simply because they are regularly accused of torture and might have an interest in the First Appellant if his account is true did not render unreliable their assertion that the warrant is not genuine.
19. It was, Ms Ahmad said, for the Judge to consider what weight to give to the report in light of the evidence in the round applying Tanveer Ahmed principles. I asked her to direct me to where in [62] to [64] of the Decision, the Judge had weighed the evidence in the round and what, other than the report, the Judge had relied upon for finding the warrant not to be genuine. She submitted that the Judge had taken into account his findings that the First Appellant is not a credible witness. She accepted that the Decision in this regard could have been better expressed. However, read as a whole, she pointed out that the section dealing with the Judge's findings at [50] to [86] is very thorough.
20. The Appellants' final ground concerns the First Appellant's case that he was able to leave Sri Lanka notwithstanding the case against him because he did so using an agent who had bribed an official. It is said that the Judge's findings at [72] to [77] of the Decision fail to take account of the evidence considered in GJ and others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) as to the prevalence of corruption of officials at the airport. It is also said that the Judge has failed to take into account the fact that the arrest warrant post-dates the First Appellant's departure.
21. In reply, Ms Ahmad accepted that the First Appellant's evidence as to how he left Sri Lanka has been consistent as to the use of an agent and bribery of an official. She also accepted that the warrant (if genuine) post-dates the First Appellant's departure. She said though that just because the First Appellant used an agent did not mean that the Judge had to accept that the evidence as to bribery of an official was true. Simply because that was consistent with the evidence in GJ and others did not mean it had to be accepted that this had occurred in every case where an agent was said to be used.
22. Following discussions, both parties agreed that, if I found an error of law, it would be appropriate to remit the appeal as the challenge is to adverse credibility findings.
Discussion and conclusions
23. Dealing with the grounds in order, I do not find an error in relation to the Judge's reference to "eye witness detail" at a number of points in the Decision. Whilst I accept Mr Murphy's submission that this might at first sight suggest evidence from a third party, when it is read in context in particular at [61] and [83] of the Decision, it cannot bear that meaning. Whilst neither the representatives nor I can know why the Judge chose those words, and I agree that the terminology is unfortunate, I am persuaded by Ms Ahmad's submission that the words are otiose and what the Judge is really saying is that the evidence lacked detail.
24. I am however persuaded that the remainder of grounds one and two are made out. In particular, I accept Mr Murphy's submission that the Judge has failed to have regard to the evidence as to the First Appellant's treatment during his first period of detention and that there was a period of fourteen days prior to his release when the First Appellant says he was not mistreated. That then undermines the reasoning at [51] of the Decision.
25. I also accept that the First Appellant's account before the Judge was that he was more than merely an employer of the Tamil employee. The Judge could of course reject that evidence but he did need to take it into account.
26. I am also satisfied that the reason given at [55] of the Decision for finding the First Appellant's account to be implausible is undermined by speculation. There was no evidence one way or another before the Judge about interest of the authorities in the Tamil employee's family and therefore the finding that they had not been approached amounts to speculation which at the very least should have been explored in evidence.
27. Whilst I do not accept the force of Mr Murphy's criticism of the document verification report, and I accept Ms Ahmad's submission that the report could be relied upon as showing that the warrant is not genuine provided the report was adequately considered and sufficient reasons were given, I am also satisfied that the Judge has erred in the way in which he dealt with this evidence. The documentary evidence is dealt with at [62] to [64] as follows:-
"[62] The appellant claims that it is more likely that the authorities seek to deceive the respondent and that the arrest warrant is a genuine document. When the available evidence is considered in the round I am unable to place any weight upon the arrest warrant to support the appellant's assertions.
[63] The DVR is a reliable document. There can be no dispute that the Sri Lankan authorities confirm, unequivocally, that the arrest warrant is a false document. When the available evidence is considered in the round there is no force in the assertion that the Sri Lankan authorities seek to deceive the respondent and that the appellant should be relied upon as an honest witness.
[64] Nor can I rely upon the documents provided by the Sri Lankan lawyer for the same reasons. The documents are of limited probative value when considered in the round; Tanveer Ahmed applied. I also note that the appellant acknowledges the prevalence of corruption in Sri Lanka as formal documents can be purchased (substantive interview question 49) PJ considered."
28. I acknowledge that the Judge has taken into account the Appellants' criticisms of the document verification report at least in passing. I also accept that it is open to the Judge to find that the DVR is reliable in spite of those criticisms. However, I was not persuaded by Ms Ahmad's submissions concerning the consideration of the arrest warrant and the lawyer's letter. It is difficult to see, for example, for what reason the lawyer's letter is rejected out of hand. That is said to be "for the same reasons" (presumably as those given for rejecting the arrest warrant). However, the lawyer's letter was not subject to any verification. The way in which the documentary evidence is considered overall therefore fails to provide sufficient reasons and does not show that the Judge did consider it in the round.
29. I am not persuaded by ground four. It is clear from [72] to [73] of the Decision that the Judge was well aware of the relevant chronology. As Ms Ahmad submitted and I accept merely because there is evidence in the country guidance case that it is possible to bribe officials to allow a person through the airport does not mean that the evidence of every person that this is how they managed to leave has to be accepted. It was therefore open to the Judge not to accept the First Appellant's account of having left in this way for the reasons set out at [72] to [77] of the Decision.
30. However, that reasoning is impacted in part by other findings which I have found to be not open to the Judge, particularly in relation to ground three (see [77] of the Decision in particular). For that reason, I do not preserve the findings in that section of the Decision.
31. For those reasons, I am satisfied that the Decision discloses an error of law on grounds one to three. I set aside the Decision. Since the sole focus of this appeal is the adverse credibility findings, it is appropriate to remit this appeal to the First-tier Tribunal for redetermination. Although I have found that there is no error in relation to ground four, I do not consider it appropriate to preserve the findings there challenged for the reasons set out at [30] above.
DECISION
I am satisfied that the Decision contains material errors of law. The decision of First-tier Tribunal Judge Fox promulgated on 19 October 2016 is set aside. The appeal is remitted to the First-tier Tribunal for re-hearing before a different Judge.

Signed Dated: 24 February 2017
Upper Tribunal Judge Smith