Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01189/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7 October 2016

On 12 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE SHERIDAN

Between

KR
(ANONYMITY DIRECTION made)
Appellant
And

Secretary of State FOR THE Home Department
Respondent

Representation
For the Appellant: Ms D Qureshi, instructed by Linga & Co
For the Respondent: Ms A Fijiwala, Home Office Presenting Officer

Anonymity
Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the appellant. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.

DECISION AND REASONS

1. This appeal arises from the decision of the respondent, dated 8 December 2015, to refuse the appellant's application for asylum. The appellant's ensuing appeal to the First-tier Tribunal ("FtT") was dismissed. The appellant now appeals against the decision of the FtT, which was made by Judge Grant and promulgated on 4 July 2016.

2. The appellant, who is a citizen of Sri Lanka born on 15 June 1991, entered the UK in September 2014 on a student visa. He did not pursue a course of study and his leave was curtailed. He applied for asylum in July 2015.

The appellant's claim

3. The basis of the appellant's asylum claim is that he fears the Sri Lankan authorities because of his involvement with (or perceived involvement with) the LTTE and that the authorities have an ongoing interest in him because of his father.

4. He claims that his father, with whom he states he has not had contact since 2001, was a fighter for the LTTE and a member since 1995. He claims that he was detained by the authorities in 2004, 2005 and 2007 and questioned about his father. Each of these detentions was for a single day.

5. The appellant gave an account of undergoing training with the LTTE (against his wishes) in 2009 and then undertaking surveillance activity for them for about 6 weeks. He claims to have escaped from the area under LTTE control to avoid further involvement. Thereafter he surrendered to the military and was detained for three days for questioning and then imprisoned for a month. He does not claim to have suffered torture during this period of imprisonment, although he was subjected to mis-treatment. Following his release he resumed his studies.

6. He claims that in 2013 he participated in pro Tamil activities and protests including a protest at the Commonwealth Conference in November 2013 where he held a placard in front of The British Prime Minister about missing persons.

7. He claims that he was imprisoned by the army in 2014 for two months, during which time he was subjected to torture. The appellant has significant scarring which he states is due to the torture he suffered in 2014. During this period of imprisonment, he claims to have been asked about his activities and those of his father. The asylum interview record makes multiple references to questioning about the appellant's father during the 2014 imprisonment. For example:

Answer to Question 201. They asked me whether I was in the LTTE earlier and about the activities of my father.
Answer to Question 206. When I denied my father's presence in the LTTE they asked me if any of my father's friends were there.

8. In the appellant's witness statement he states at paragraph 14 that, during the 2014 incarceration, he would repeatedly be asked about the activities of his father as well as his own affiliations with the LTTE.

9. According to the appellant's account, he was released following the intervention of the Red Cross. He left Sri Lanka in 2014 using his own passport, having obtained a visa to enter the UK as a student.

Medical evidence adduced by the appellant

10. In support of his appeal before the First-Tier Tribunal, the appellant adduced a report prepared by Dr Joanna MacKenzie, who is a qualified GP (qualifying in 2009) with some training and experience in psychiatry. The report is based on five appointments and a total of ten hours spent with the appellant. In the preface to the report Dr MacKenzie refers to having undertaken specific training in relation to evaluation of scars and the physical and psychological effects of torture. However, her curriculum vitae appended to the report does not list any such training and no explanation has been given as to how her qualification as a GP gives her the necessary expertise, particularly in respect of analysing scars.

11. In the report, at paragraph 98, Dr MacKenzie states that once the original injury has healed it is not possible to date the injury. Accordingly, her report is of no assistance in ascertaining when the appellant suffered his physical injuries; that is, whether they occurred in 2014, as claimed, or at an earlier time.

12. Following a detailed review of the appellant's lesions, Dr MacKenzie concluded that it was highly unlikely they were self inflicted and that the appellant's attribution for the lesions is the most likely cause. In respect of his psychological state, she concluded that he suffers from symptoms of PTSD and that the symptoms were "those expected or typical reactions to extreme stress within the cultural and social context" (paragraph 139). Dr MacKenzie concludes her report, at paragraph 142, by stating that "the clinical picture does not suggest a false allegation of torture".

Decision of the First-tier Tribunal

13. The appellant's appeal was heard by FtT Judge Grant. The judge found the appellant to not be credible. He found the appellant's account of being trained by, and acting as a look out for, the LTTE in 2009 not credible in light of the background information about the conflict at that time. He also considered it not credible that the appellant would be trained to undertake surveillance at a time when the LTTE needed more fighters.

14. The judge also did not accept the appellant was detained and tortured in 2014. The judge's reasons for so finding were that there were no grounds for the authorities to be interested in the appellant six years after the war ended, the appellant's delay in seeking asylum were "not the actions of a genuine refugee" and he left Sri Lanka in 2014 using his own passport.

15. The judge has considered the appellant's injuries in various parts of the decision. In paragraph 10 he states that "the appellant has suffered some injuries but not torture as claimed". In paragraph 11 the judge states that the appellant "has not disclosed how he truly came by the scars on his back?" At paragraph 18 the judge stated, in respect of the appellant's scars:

"I do not know how they [the appellant's scars] were caused but I reject his claim that they were caused by torture. It is equally possible and a matter not explored by the doctor who looked at his back that the appellant suffered injuries during the general fighting and chaos of the last months of the civil war?If the appellant had genuinely been tortured as claimed in 2014 he would have required medical treatment upon release and yet he has adduced no hospital records or medical evidence from Sri Lanka?"

Grounds of appeal and submissions

16. The grounds of appeal contend that the judge erred in four ways. Firstly, it is argued that the judge failed to take into account, or consider, the appellant's father's involvement with the LTTE. Secondly, the grounds maintain that the judge failed to engage with the medical report about the appellant's injuries. Thirdly, the grounds take issue with the judge's basis for rejecting the appellant's claimed 2014 detention. Fourthly, it is argued that the judge failed to give proper consideration to the appellant's post conflict political activities.

17. Ms Qureshi, on behalf of the appellant, elaborated on the grounds. Ms Fijiwala argued that criticising the judge for failing to consider the father's involvement in the LTTE was misconceived because that was not the appellant's case. The appellant's account of the 2014 detention indicates the primary interest of the authorities was the appellant's activities, not his father. In respect of the medical report, Ms Fijiwala argued that this was given proper regard. It was for the judge to form a view, based on the totality of the evidence, as to whether the appellant's claim to have suffered torture in 2014 was credible and that is what the judge did. The judge has assessed this case in light of the country guidance GJ and Others [2013] UKUT 00319 (IAC) and reached a decision that was open to her.

Consideration

18. Having considered the submissions of Ms Qureshi and Ms Fijiwala, and reviewed afresh the evidence that was before the FtT, I find that the judge made two material errors of law which undermine the decision.

19. The first error concerns the appellant's scars. At paragraph 18 the judge rejected the appellant's claim that they were caused by torture and found it "equally possible" they were due to "the general fighting and chaos" in the last months of civil war. At paragraph 11 the judge stated that it is more likely than not that the appellant "was injured at some point during his A level studies" rather than by torture. It is unclear what is meant by stating the scars are due to "general fighting" but, read as a whole, it appears the judge is rejecting the notion that they were intentionally inflicted wounds, either through torture, self infliction or by proxy, and suggesting the injuries were instead caused by something not specifically targeting the appellant.

20. This is inconsistent with the medical evidence before the judge. Dr MacKenzie's report makes it clear that, in her view, the appellant's scarring, which take the form of cigarette burns and long linear burns from a heated implement, were intentionally inflicted, and most likely the result of torture.

21. The judge was not obliged to accept Dr MacKenzie's opinion, and there may have been good reasons for not doing so, but if there were such reasons none are apparent from the decision. Dr MacKenzie's report is comprehensive, clear and addresses one of the central issues in the appellant's account. If the judge decided to reject this evidence she needed to give reasons and the absence of any such reasons in the decision amounts to an error of law.

22. The second error of law concerns the judge's failure to consider the appellant's claims about the interest of the authorities in his father. The appellant's case is that despite not having seen his father since 2001 and not being aware of his father's whereabouts or role in relation to Tamil separatism, the authorities have on multiple occasions, most recently in 2014, subjected him to questioning about his father.

23. It may be that the judge rejected the appellant's claims about his father but there is no reasoning or explanation for this in the decision. It is notable that the respondent, in her reasons for refusal letter, addressed in detail (and rejected) the appellant's account about his father (see paragraphs 42-46 under the heading "Your father's involvement with the LTTE"). No such assessment is present in the decision of the FtT.

24. The absence of any consideration of the appellant's father is material because the appellant's claims about his father are relevant to the plausibility of his account of being arrested in 2014. One of the reasons the appellant's account of being detained and arrested in 2014 was rejected was that the judge did not consider there any reasons for him to be perceived as a threat by the Sri Lankan authorities. It is understandable how this conclusion was reached. The appellant's own evidence was that his involvement with the LTTE was at a low level and his post conflict activism has been limited. As such, there would not seem to be a real risk of him falling into one of the risk categories identified in GJ. In particular, his profile does not appear to be such that he would be perceived to be a threat to the integrity of Sri Lanka as a single state because of a role (or perceived role) in relation to post-conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka. However, it is the appellant's case that he does not know the role and profile of his father and it may be that his father is of such interest to the authorities that it places him at risk. The absence of any consideration of, or findings regarding, the appellant's father amounts to a material error of law.
25. Both parties submitted that if I found there to be an error of law the appeal should be remitted to the FtT. I agree. The errors of law I have indentified undermine the credibility findings and consequently I consider that it will be necessary for a judge rehearing this appeal to consider all of the evidence again without any of the findings being preserved. Having regard to Section 7 of the President's Practice Statement, it is my view that the level of fact finding required means this case should be remitted to the FtT.

Decision

a. The decision of the First-tier Tribunal contains a material error of law such that it should be set aside in its entirety and the appeal heard afresh.

b. The appeal is remitted to the First-tier Tribunal for hearing afresh before a judge other than First tier Tribunal Judge Grant.

Signed

Deputy Upper Tribunal Judge Sheridan

Dated: 11 October 2016