Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: Pa/01473/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 20 March 2017
On 21 March 2017

Before

UPPER TRIBUNAL JUDGE PLIMMER

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

TM
ANONYMITY DIRECTION MADE
Respondent

Representation:
For the appellant: Ms A Fijiwala, Senior Home Office Presenting Officer
For the respondent: Mr C Mannan, Counsel

DECISION AND REASONS

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI2008/269) an Anonymity Order is made. Unless the Upper Tribunal or Court orders otherwise, no report of any proceedings or any form of publication thereof shall directly or indirectly identify the original Appellant. This prohibition applies to, amongst others, all parties.
1. I have made an anonymity order because this decision refers to a protection claim, accepted by the First-tier Tribunal.
2. The appellant (‘the SSHD’) has appealed against the decision of First-tier Tribunal Judge James dated 2 December 2016, in which he dismissed the respondent’s appeal against a decision dated 23 September 2015 to deport him because of his criminal convictions.
3. First-tier Tribunal Judge Saffer granted permission, observing that it is arguable that the First-tier Tribunal erred in not applying GJ and others (post civil war: Returnees) Sri Lanka CG [2013] UKUT 00319 to the specific facts of the respondent as opposed to his family members.
Hearing
4. At the hearing before me, Ms Fijiwala confirmed that she did not oppose an extension to the respondent’s bail conditions.
5. Ms Fijiwala relied upon the grounds of appeal. She sought to submit a file minute explaining why the respondent’s parents were granted refugee status. There was no reference to this evidence in the grounds of appeal and no application prior to the hearing to admit this evidence. The application was made very late indeed. It relied upon evidence that had not been referred to before and Ms Fijiwala was not aware of whether it was before the First-tier Tribunal. In any event the First-tier Tribunal referred to the evidence before it relevant to the claims of the family members. Given these circumstances, I declined to admit the evidence.
6. I did not need to hear from Mr Mannan. After hearing from Ms Fijiwala I announced that the First-tier Tribunal decision did not contain an error of law, and that I would provide my reasons in writing, which I now do.
Summary of relevant procedural history
7. As noted by the First-tier Tribunal at [5] there is a protracted history to this matter. I do not propose to repeat that history in this decision and summarise the relevant history for the purposes of the SSHD’s submission that the First-tier Tribunal made a material error of law.
8. The respondent, a citizen of Sri Lanka, entered the United Kingdom in 2001, when he claimed asylum. The refusal of his asylum claim has been the subject of two separate appeal proceedings prior to the instant one. These proceedings are summarised by the First-tier Tribunal at [30-32]. Both Tribunals accepted that the appellant was detained, interrogated and tortured in Sri Lanka prior to his arrival in the United Kingdom, for reasons relating to his activities for the LTTE. This is now accepted by the SSHD [17]. Both Tribunals however concluded that the respondent was not at prospective risk in Sri Lanka given the passage of time and the applicable country guidance.
9. After the previous Tribunal’s dismissal of the respondent’s asylum appeal in 2013, the respondent relied upon new evidence including supporting documentary evidence from Sri Lanka and supporting evidence from his parents, both of whom have been granted refugee status by the SSHD. The respondent also relied upon evidence from his siblings, who were granted discretionary leave. This evidence is referred to by the First-tier Tribunal in considerable detail at [34, 36, 38-41]. The SSHD accepted that this evidence should be treated as a fresh asylum claim.
10. The respondent has a long record of serious criminal offending related to alcohol addiction and mental health difficulties. This is summarised by the First-tier Tribunal at [8-13]. It is not necessary to deal with this in any detail here. Both representatives agree that the sole issue in dispute relates to whether the respondent is entitled to refugee status, as a result of a well-founded fear of persecution for reasons relating to his imputed political opinion. His criminal offending is not directly related to this.
First-tier Tribunal decision and the grounds of appeal
11. The First-tier Tribunal dealt with the matter by way of submissions only [15] but considered the evidence in detail. In my judgment, the First-tier Tribunal has made findings of fact open to it and applied GJ properly, such that the decision does not contain a material error of law.
Family members
12. The grounds of appeal criticise the First-tier Tribunal’s approach to the grant of refugee status to the respondent’s parents. The grounds of appeal are predicated upon an assumption that the grants of refugee status were considered by the First-tier Tribunal to be “determinative of this [respondent’s] claim”. The grounds of appeal suggest that the First-tier Tribunal was wrong to conclude that the respondent’s appeal “should be allowed in light of the acceptance of his parents and siblings asylum claim by the respondent”.
13. The First-tier Tribunal was entitled to proceed on the basis that the respondent’s family members were considered by the SSHD to be credible, hence the grant of refugee status and discretionary leave [34]. There was no submission to the contrary on the part of the SSHD’s representative. That approach in is in no way inconsistent with AC (Witness with refugee status – effect) Somalia [2005] UKAIT 00124. Indeed, the First-tier Tribunal was obliged to take the grants of refugee status into account as part of the overall evidence. This is precisely what it did. The First-tier Tribunal properly directed itself that notwithstanding the grant of refugee status to family members “it is necessary to make a finding of credibility concerning the evidence of the [respondent] after mature consideration of all relevant and material circumstances which are detailed below.” [35].
14. When the decision is read as a whole, it is very clear that the First-tier Tribunal did not regard the grants of refugee status to the parents as determinative of the respondent’s asylum claim. Such a submission wholly fails to acknowledge the First-tier Tribunal’s correct self-direction at [35] and the careful consideration carried out of all the relevant evidence pertaining to the respondent himself [36-37, 46]. The grounds of appeal fail to acknowledge that the First-tier Tribunal departed from the previous Tribunal’s findings on prospective risk, because of the assessment of all the evidence, considered holistically. This evidence included, but was not limited to the grants of refugee status. The evidence also included documentary evidence from 2014 (and therefore after the 2013 Tribunal) as set out in detail at [36].
15. The First-tier Tribunal’s approach to the family members’ grants, is not inconsistent with the principles in AA (Somalia) v SSHD [2007] EWCA Civ 1040. The First-tier Tribunal was entitled to find that the “stories dovetail and marry up” [43]. The respondent’s historical mistreatment in Sri Lanka, and the state’s continuing interest in him formed part of the claims made by his family members. They claimed to be at risk at least partly because of the attitude adopted by the authorities to the respondent. For example, at [38] the First-tier Tribunal referred to the evidence that the respondent’s mother and father were beaten and tortured by the army who visited the parental home “in order to find out the whereabouts of their son”. That evidence was corroborated by a letter from a Sri Lankan lawyer dated 12 March 2014, and is referred to by the Tribunal at [36, fifth bullet point]. The First-tier Tribunal was entitled to make the finding that the “state authorities retained an interest in [the respondent], and so have continued to visit the family home to interrogate each member of his family, including his parents and younger siblings” [42]. The First-tier Tribunal was entitled to reach this finding on the material available to it. This included the full transcripts of the asylum interviews of the mother and father [last bullet point on page 7, 38] and witness statements from the siblings [39-41]. The respondent’s claim clearly relied upon overlapping evidence and arose out of the same or a similar factual matrix, as the claims of his family members.
16. It follows that the First-tier Tribunal has no committed any material error of law in its approach to the grants of status to the family members.
GJ
17. The First-tier Tribunal has expressly directed itself to GJ [49] and was entitled to find that as the arrest warrant is accepted to be genuine, the respondent is likely to be on a stop list. Ms Fijiwala accepted that if there is a reasonable degree of likelihood of being on a stop list, it follows from GJ that there is a real risk of serious harm upon return to Sri Lanka. She submitted that the First-tier Tribunal has not adequately reasoned the conclusion that the arrest warrant is credible. I turn to this submission below.
Approach to credibility and documentary evidence
18. As noted above, and as accepted by Ms Fijiwala during the course of her submissions, the First-tier Tribunal has properly directed itself to the correct approach when assessing credibility [35]. The First-tier Tribunal reminded itself that the previous positive findings on credibility remain undisturbed [33]. When the decision is read as a whole it is clear that the First-tier Tribunal considered all the evidence in the round, including the documentary evidence post-dating the previous Tribunal decisions, and accepted that evidence entirely for the reasons set out at [36-43]. The First-tier Tribunal was entitled to find the evidence relied upon to be consistent with the claims of the family members and to be corroborated by supporting documentary evidence.
19. The First-tier Tribunal has considered the documentary evidence in the round and in accordance with the guidelines in Tanveer Ahmed [2002] UKIAT 00439. Ms Fijiwala criticised the First-tier Tribunal for failing to state why it accepted the evidence from the MP, the lawyers letter and the arrest warrant to be credible. I acknowledge that the First-tier Tribunal might have provided clearer reasoning regarding the credibility of the documentary evidence not available until 2014, however in my judgment when the decision is read as a whole, the reasoning is adequate: the respondent’s past detention and torture were accepted to be credible [33]; the respondent’s parents’ claims have been accepted as credible [34]; the First-tier Tribunal correctly directed itself to the proper approach to credibility in comprehensive terms [35]; the First-tier Tribunal was well aware of the extensive nature and extent of the supporting evidence [36], in addition to the respondent’s evidence [37], his parents’ evidence [38] and his siblings’ evidence [39-41]; the respondent’s evidence is consistent with and corroborated by his parents and three siblings, as well as the MP’s letter, the lawyer’s letter and the arrest warrant [42]. Having considered all the evidence in the round the First-tier Tribunal made a clear positive credibility finding [48], entirely open to it.
20. The reasoning provided by the First-tier Tribunal must be viewed in context and in light of the submissions before it. There is a full typed record of the submissions before the First-tier Tribunal. This indicates that the SSHD did not challenge the credibility of the documentary evidence submitted and focused attention on the changed country conditions rendering an absence of continuing interest on the part of the Sri Lankan authorities.

Decision
21. The decision of the First-tier Tribunal did not involve the making of a material error of law and I do not set it aside.

Signed:

Ms M. Plimmer
Judge of the Upper Tribunal

Date:
20 March 2017