Tribunal decisions

The decision

IAC-AH-sc-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01460/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 1 February 2017
On 20 February 2017

Before

UPPER TRIBUNAL JUDGE O'CONNOR

Between

A.M.
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:
For the Appellant: Ms S Saifolah of Counsel instructed by Krisinth Solicitors
For the Respondent: Mr S Staunton, Senior Presenting Officer

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify the appellant or any member of the appellant's family. Failure to comply with this direction could lead to contempt of court proceedings.

DECISION AND REASONS

Introduction
1. The appellant, a citizen of Sri Lanka, appealed to the First-tier Tribunal ("FtT") against the Secretary of State's decision of 28 January 2016 refusing his protection claim. The FtT heard the appeal on 26 August 2016 and dismissed it in a decision promulgated on 30 September. In summary, the FtT rejected the truth of the appellant's account of the circumstances that he asserts led to him leaving Sri Lanka and, in particular, it rejected the appellant's claim to have been suspected by the Sri Lankan authorities of involvement with the LTTE, detained and ill-treated and to have thereafter been released on reporting condition.
2. On 28 November 2016 Upper Tribunal Judge Plimmer granted the appellant permission to appeal to the Upper Tribunal, thus the matter came before me.
Grounds of Appeal
3. The grounds of challenge, as articulated by Ms Saifolah at the hearing before the Upper Tribunal, focus on two aspects of the FtT's conclusions relating to the credibility of the appellant's account. First, it is asserted that the FtT erred in its consideration and evaluation of the medical evidence put before it. Second, it is submitted that the FtT irrationally treated as being a matter adverse to the appellant the fact he only bribed one individual at the airport when successfully departing Sri Lanka.
Decision and Reasons
4. Taking the aforementioned grounds in turn. The appellant put before the FtT a medical report authored by Dr Andres Izquierdo-Martin, a consultant in emergency medicine. This report sets out the authors analysis of, and conclusions in relation to, the scarring on the appellant's body - which is to be found on the appellant's back, genitalia and lower limbs.
5. In relation to each of the scars Dr Izquierdo-Martin assesses: (i) the likelihood of the scarring having occurred in the manner suggested by the appellant; (ii) the possibility of the scarring being self-inflicted; and, (iii) the possibility of the scarring having been inflicted consensually by a third party.
6. It was concluded that the scarring on the appellant's back and genitalia is "highly consistent" with the account given by the appellant, and that the scars on his lower limbs are "consistent" with his account. As to the possibility of the scars being self-inflicted, the doctor concluded, in relation to the scars on the appellant's back, that they were "very unlikely" to be self-inflicted, as is also the case with the scarring on the appellant's lower limbs. There was found to be a "possibility" that the scarring on the appellant's genitalia could have been as a consequence of deliberate self-harm, although this was said to be "very unusual".
7. As to the possibility of the scars being caused by a third party with the agreement of the appellant, the doctor observed that it was scientifically impossible to differentiate between such injuries and injuries caused by torture.
8. Moving back to the FtT's decision, in paragraphs 13 to 17 thereof the FtT summarises the material aspects of the aforementioned medical report. Thereafter, the FtT observes that: (i) on the appellant's account he only had to bribe one individual at the airport, which suggested an absence of interest in him by the authorities [19]; and, (ii) the answers given by the appellant during his asylum interview lack detail, such detail only later being provided [20 - 22].
9. In paragraph 23 of its decision the FtT returns to the medical evidence, stating:
"Taking the evidence overall I am not satisfied that the medical evidence supports the Appellant's case. It does not address the differences in the accounts of the Appellant. In the circumstances I find that the evidence does not show that the Appellant sustained the injuries recorded by malicious ill-treatment at the hands of the Sri Lankan security forces."
10. Ms Saifolah submits, with reference to aforementioned paragraph, that the FtT erred both in attaching no weight to the medical report and in its expectation that the report should have addressed the differences in the appellant's account. In response Mr Staunton asserts that the FtT considered the evidence in the round, including the evidence provided in the medical report, and concluded that the inconsistencies in, and implausibility of, the appellant's account were such that it could not be believed.
11. I broadly concur with Ms Saifolah's view. Although the FtT accurately summarises the findings of Dr. Izquierdo-Martin [13-17] and immediately thereafter correctly directs itself that it must consider the evidence as a whole [17], this does not undermine the Ms Saifolah's claims regarding the error in approach found in paragraph 23 of the FtT's decision.
12. The FtT specifically states therein that the medical report does not support the appellant's case. Although I disagree with Ms Saifolah's submission that this is indicative of the FtT not having considered the evidence in the round I do accept the alternative submission that when weighing the evidence in the round, the FtT impermissibly attached no weight to the evidence given in the medical report.
13. The medical report clearly provides probative evidence of the appellant's claim to have been tortured. Whatever weight is to be attached to such evidence, it cannot be said that the evidence is not supportive of the account given by the appellant and the FtT erred in concluding to the contrary.
14. Moving on the second ground, at paragraph 19 of the FtT's decision the following is said:
"There is evidence that bribery is used to leave Sri Lanka and to avoid difficult questions at checkpoints and the like. However, the ability of an individual to leave the country on their own passport is equally consistent with their not being of interest to the authorities. The point made in the Refusal Letter that the Appellant would pass more than one level of security and more than one person would be involved in the processing of his departure is a valid one. It seems odd that the Appellant would only need to bribe one individual in order to leave and the ease with which he passed through suggests an absence of interest in him."
15. The aforementioned conclusion has as its source the following observations and findings made by the SSHD in paragraph 26 of her refusal decision:
"If indeed the authorities really did have an adverse interest in you then it is reasonable to expect that you would not have been allowed to leave the country using your own passport. You claim you bribed one official, but this doesn't explain how you were able to evade the several layers of officials present at the airports in Sri Lanka (as per Sri Lankan Country Information and Guidance) if indeed they did suspect you to be part of the LTTE. It is your own evidence that even the official you bribed did not question you regarding the LTTE; he only asked about your travel arrangements."
16. It is undisputed that the FtT was not provided with a copy of the SSHD's "Sri Lankan Country Information and Guidance". Mr Staunton submitted, however, that the document was in the public domain and, consequently, that the FtT was entitled to take it into account, despite the document not having been produced by either of the parties. I observe at this stage that the document was not produced before the Upper Tribunal either; however, I directed the parties to supply extracts of the agreed relevant passages from the document after the hearing. The document I received is attached hereto as Appendix 1. I will return to these passages later.
17. I turn first to consider the evidence that was before the FtT, the parties drawing my attention to a document dated 8 July 2014 and headed: "Home Office: Response to Country of Origin Information (COI) request", which sets out the terms of a letter from the British High Commission in Colombo dated 7 July 2014:
"At the immigration desk, the passenger must present their passport, boarding pass and (if a Sri Lankan national) departure card to the immigration officer. The immigration officer scans the details page of the passport on the Department of Immigration and Emigration (DIE) Border Control System database and checks existing entry/exit endorsements in the passport. Passports belonging to all passengers i.e. Sri Lankan and foreign nationals, are endorsed with an immigration officer's embarkation stamp and handed back to the passenger, along with the boarding pass. The immigration officer will retain the departure card (if applicable). After being processed by the immigration officer, the passengers walk behind the other desks to an entrance into the departure lounge, which is situated behind the far immigration desks."
18. In my conclusion this evidence is not capable of providing support for the conclusion found in paragraph 26 of the FtT's decision. It is not said that there was any other evidence before the FtT upon which could provide the foundation for such a conclusion.

19. I need now turn then to the evidence that was not before the FtT i.e. the "Sri Lankan Country Information and Guidance". It is not necessary for me to determine whether the FtT was entitled to take into account evidence that was not put before it, but which was referred to, albeit inadequately, in the SSHD's refusal decision. This is so because it is immediately apparent upon close analysis of the agreed passages from such evidence that rather than support the SSHD's contention they are, in fact, probative of the truth of the appellant's account.

20. In particular, the evidence identifies that it is only the immigration officer in the Department of Immigration and Emigration ("DIE") area of the airport that checks passenger's details against the DIE Border Control System database. It is this on this database that details of those of interest to the Sri Lankan authorities might be found. At no other stage of the departure process is a check undertaken which might reveal information of the Sri Lankan authorities interest in a certain individual. Consequently, the appellant's contention that he bribed only one official at the airport - the immigration officer who would normally be required to undertake the DIE database check - is perfectly plausible, and the FtT's conclusion to the contrary is both inadequately reasoned and irrational, whether this is considered just in the context of the evidence that was before the FtT or in the wider context of the evidence contained in the "Sri Lankan Country Information and Guidance" which was not before the FtT.

21. For the above reasons taken cumulatively, I conclude that the FtT's assessment of the credibility of the evidence provided by the appellant is flawed by legal error. I further conclude that it cannot be discounted that, had the appellant been found to be credible in the entirety of the evidence given, a rational FtT could have allowed his appeal. Consequently, the aforementioned errors must be material to the FtT's decision and I set such decision aside.

22. The nature and extent of the fact finding required to re-make the decision is such that it is appropriate for this appeal to remitted to the FtT for the decision under appeal to be re-made afresh. Neither party objected to this course.

Signed:

Upper Tribunal Judge O'Connor
Dictated: 7 February 2017

APPENDIX 1

The background material outlined below is agreed between the Appellant and Respondent. The material relates to Ground 4 (paragraphs 15-18 of the application for permission to the Upper Tribunal) and to paragraph 26 of the reasons for refusal letter dated 28th January 2016.

1. "Country information and Guidance: Tamil Separatism" dated August 2016
Appendix B4: Letter from British High Commission dated 7th July 2014:

"At the immigration desk, the passenger must present their passport, boarding pass and (if a Sri Lankan national) departure card to the immigration officer. The immigration officer scans the details page of the passport on the Department of Immigration and Emigration (DIE) Border Control System database and checks existing entry/exit endorsements in the passport. Passports belonging to all passengers i.e. Sri Lankan and foreign nationals, are endorsed with an immigration officer's embarkation stamp and handed back to the passenger, along with the boarding pass. The immigration officer will retain the departure card (if applicable).
After being processed by the immigration officer, the passengers walk behind the other desks to an entrance into the departure lounge, which is situated behind the far immigration desks.

2. Country of Origin information report on Sri Lanka dated 4th July 2011

"25.20 The BHC letter of 30th August 2010 continued:

"The airport is split into two main terminal buildings, departure and arrivals. The departure area is restricted to departing passengers, staff, and visitors holding a ?day pass' issued from an adjacent ticket booth. Persons obtaining a ?day pass' have to produce a copy of their ID card or passport or driving licence, plus present the original document. Their details are recorded manually in a register. Before entering the departure terminal a security guard requires evidence of airline ticketing (and sometimes passports), staff ID cards or a day pass. Persons not holding these documents are not allowed into to the departure terminal. Immediately behind the security guard there are security checks where all bags and belongings are passed through scanners. All persons then pass through a metal detector. Regardless of whether or not the detector alarm is activated, persons are then frisked by a security guard. Having passed through these security checks, persons are allowed to walk through a long corridor and into the main departure area.
From the departure area there are three security entrances to the check-in area. The gate to the right caters for passengers departing on Sri Lankan Airlines; the gate to the left is for passengers on all other airlines and the gate in between is for staff only. The security guards ask passengers for evidence of ticketing and will only allow persons to pass who have produced this. Persons holding a ?day pass' are not allowed into the check-in area. Immediately behind these security checks, a sign indicates ?Customs'. A customs officer is often seen in the vicinity, but it is not a permanent presence.
25.21 The same source added:
At the check-in desks, passengers have to produce their passports to airline staff and go through check-in procedures. Airline check-in staff routinely check the identity of the person against the passport details, the validity of the passport, and if the passenger has the appropriate visa for their country of destination or transit. Having checked-in, passengers then proceed to a security gate, where they produce their passport and boarding card in order to enter the Department of Immigration & Emigration [DIE] area. All passengers must complete a departure card and then queue at an immigration officer's desk. Passengers must present their passport, departure card and boarding pass to the immigration officer. The immigration officer will swipe the passport on the DIE Border Control System database. Non Sri Lankans will be checked against any existing database records and officers will check arrival endorsements in the passport. All passports are endorsed with an immigration officer's embarkation stamp. Once through the immigration control, passengers proceed to the main departure lounge.
There are further security checks conducted when passengers arrive at the boarding gate. Hand baggage and belongings, including mobile phones and shoes, are passed through a scanner. Passengers proceed through a metal detector and are frisked depending on whether the alarm is activated. There is then a further boarding card check conducted by airline staff prior to entering the holding lounge. On many flights with European destinations, plus some with onward connections to Europe, North America and Australia, Airline Liaison Officers from several overseas missions and/or trained airline document checkers make further checks on passenger's passports to check their admissibility in their transit and /or destination countries
25.22 A BHC letter dated 14 September 2010 noted:

The Department of Immigration & Emigration (DIE) are notified only when a Court decides to impound the suspect's passport or an arrest warrant is issued. The details of such persons would be placed on their alert or wanted list within their database. There is no other mechanism to ensure that the Immigration Officers are aware of such instances. Apart from these Court powers, Immigration Officers have no power in law to prevent persons embarking. The other method, which is rare and case specific, is that the State Intelligence Service (SIS) can inform Immigration Officers of individuals suspected of terrorist activity and those on a wanted list. Again the details of suspects would be put on the DIE database. Without Court sanction, Immigration officers are powerless to put an individual in detention if they are otherwise satisfied that they have a right to enter or live in Sri Lanka."
"16.05 The Freedom House report Freedom in the world 2010, Sri Lanka, covering events in 2009, released on 1st June 2010 noted that:

Official corruption is a continuing concern. The current legal and administrative framework is inadequate for promoting integrity and punishing corrupt behavior, and weak enforcement of existing safeguards has been a problem...Although hundreds of cases are being investigated or prosecuted by the Commission to Investigate Allegations of Bribery or Corruption (CIABOC), no current or former politician has been sentenced. Corruption watchdogs have found that government interference and the Treasury's ability to withhold funding compromise the CIABOC's independence and render it ineffective. Corruption cases can only be initiated by members of the public, who have been reluctant to do so because of a lack of whistleblower protections."

3. Country of Origin information report on Sri Lanka dated 7th March 2012

"25.19 The same BHC letter continued:

The airport is split into two main terminal buildings; departure and arrivals. The departure area is restricted to departing passengers, staff, and visitors holding a ?day pass' issued from an adjacent ticket booth. Persons obtaining a ?day pass' have to produce a copy of their ID card or passport or driving licence, plus present the original document. Their details are recorded manually in a register. Before entering the departure terminal a security guard requires evidence of airline ticketing (and sometimes passports), staff ID cards or a day pass. Persons not holding these documents are not allowed into to the departure terminal. Immediately behind the security guard there are security checks where all bags and belongings are passed through scanners. All persons then pass through a scanner. Regardless of whether or not the detector alarm is activated, persons are then frisked by a security guard. Both male and female security staff are stationed at each checkpoint. Having passed through these security checks, persons walk through a long corridor and into the main departure area.
From the departure area there are three security entrances to the check-in area. The gate to the right caters for passengers departing on Sri Lankan Airlines; the gate to the left is for passengers on all other airlines and the gate in between is for staff only. The security guards ask passengers for evidence of ticketing and will only allow persons to pass who have produced this. Persons holding a ?day pass' are not allowed into the check-in area. Immediately behind these security checks, a sign indicates ?Customs'. A customs officer is often seen in the vicinity, but it is not a permanent presence. Likewise, there are scanners for baggage but these are rarely seen in operation.? "

"25.20 The same source added:
At the check-in desks, passengers have to produce their passports to airline staff and go through check-in procedures. Airline check-in staff routinely check the identity of the person against the passport details, the validity of the passport, and if the passenger has the appropriate visa for their country of destination or transit. Having checked-in, passengers then proceed to a security gate, where they produce their passport and boarding card in order to enter the Department of Immigration & Emigration (DIE) area. All passengers must complete a departure card and then queue at an immigration officer's desk. Passengers must present their passport, departure card and boarding pass to the immigration officer. The immigration officer scans the details page of the passport on the DIE Border Control System database. Three scanned images of the details page appear on the computer screen in normal light, ultra-violet and infrared, in order to identify if the document has been forged or tampered with in any way. Non Sri Lankans will be checked against any existing database records and officers will check arrival endorsements in the passport. Passports belonging to all passengers i.e. Sri Lankan and foreign nationals, are endorsed with an immigration officer's embarkation stamp. Once through the immigration control, passengers proceed to the main departure lounge."
"25.21 BHC letter of 5th January 2012 went on to report:

The Department of Immigration & Emigration (DIE) are notified only when a Court decides to impound the suspect's passport or an arrest warrant is issued. The details of such persons would be placed on their alert or wanted list within their database. There is no other mechanism to ensure that the Immigration Officers are aware of such instances. Apart from these Court powers, Immigration Officers have no power in law to prevent persons embarking. The other method, which is rare and case specific, is that the State Intelligence Service (SIS) can inform Immigration Officers of individuals suspected of terrorist activity and those on a wanted list. Again the details of suspects would be put on the DIE database. Without Court sanction, Immigration officers are powerless to put an individual in detention if they are otherwise satisfied that they have a right to enter or live in Sri Lanka. The State Intelligence Service (SIS) has an office adjacent to the immigration embarkation control and DIE officials can refer embarking passengers to them if they think it necessary. "