Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA016202015

THE IMMIGRATION ACTS

Heard at Field House, London Decision & Reasons Promulgated
On the 1st June 2016 On the 10th June 2016

Before: DEPUTY UPPER TRIBUNAL JUDGE MCGINTY

Between: M.U.
(Anonymity Direction made)
Claimant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant in the Upper Tribunal
Representation:
For the Claimant: Ms Benfield (Counsel)
For the Secretary of State: Mr Tufan (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 Veloso promulgated on the 27th January 2016, in which she allowed the Claimant's appeal on humanitarian protection grounds. Although this is the Secretary of State's appeal, for the purposes of clarity throughout this decision, the Secretary of State will be referred as "the Secretary of State" and Ms M.U. will be referred to as "the Claimant".
2. The Claimant is a citizen of Sri Lanka who was born in 1991. It is her case that her father had been a sergeant major in the Sri Lankan army, from which he retired in 2002 and that he had subsequently been a supporter of Mahinda Rajapaksa and that her father, stepmother and brother had been kidnapped on the [ ] 2015 and it is her case that her father had been openly critical of Maithripala Sirisena and had called him and others traitors and that he had openly spoken out against the new President and had been targeted as a result. It is her case that the authorities have been visiting her aunt asking about the family's political activities and the Claimant's whereabouts and that these visits were ongoing, albeit less frequently since the involvement of her aunt's lawyer. This account was accepted by First-tier Tribunal Judge Veloso, who on this basis allowed the appeal on humanitarian protection grounds.
3. Within the original Grounds of Appeal it was argued by the Secretary of State that First-tier Tribunal Judge Veloso materially misdirected herself in law in her findings at paragraph [42] of the judgement. It was said that the Judge had considered that the Claimant on return would be subject to questioning about her and her family's LTTE connections and sympathies and that the Judge relied upon paragraph 308 of the Country Guidance case of GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319. It was argued that the Claimant will not be subject to re-documentation as she has her own passport and therefore would not require an emergency travel document from the Sri Lankan High Commission in London and that there was no adequate basis for concluding that the Claimant would be subject to questioning upon return as a suspected LTTE sympathiser. It is argued that the Country Guidance case of GJ made it clear that consideration of returnees is informed by the Sri Lankan authorities' sophisticated intelligence gathering techniques and that the Claimant is and was not an LTTE supporter and that there is no basis for the Claimant to be of interest upon return. It is argued that the Judge relied upon paragraph 347 of GJ for finding that the Claimant would be obliged to give her address and would be visited upon return, but given the Judge's misapplication of paragraph 308 of GJ the finding that the Claimant will suffer adverse interest because she will be subject to questioning and become emotional is said to have been inadequately reasoned.
4. It was further argued that the finding that the Claimant would be subject to interview upon return and this would lead to a real risk of detention and persecution was inadequately reasoned and that prior to her father's political statements in 2015, the Claimant had been in the UK for some 3 years and the Claimant did not have any political views and had not undertaken political activities and there was no reason to support the assumption that the authorities would have anything more than a passing interest in the Claimant. It was argued that there was insufficient evidence to support the finding that the Claimant is at a real risk of persecution upon return and that she may be subject to some degree of harassment not amounting to persecution and that the interest in the Claimant has waned since the involvement of her aunt's lawyer.
5. Permission to appeal was originally refused by First-tier Tribunal Judge Andrew on the 17th March 2016 who found that the grounds amounted to nothing more than a disagreement with the Judge's findings. The Secretary of State sought to appeal then directly to the Upper Tribunal, and in their renewed Grounds of Appeal it was argued that First-tier Tribunal Judge Andrew failed to engage fully with the Grounds of Appeal and sought to renew those grounds in their entirety and repeats the fact that the Claimant's claim is not one which refers to the LTTE and past or present involvement and that the government of Sri Lanka's sophisticated intelligence gathering approach means that they will easily be able to eliminate the Claimant's as a potential threat, given that she has had no political involvement at all and their intelligence is equally applicable to any political opposition not simply the LTTE. It was argued that the fact that her step-aunt and family remain unmolested by the authorities despite their links to the Claimant's father and stepmother is an indication that they would equally have no interest in the Claimant.
6. Permission to appeal was then granted by Upper Tribunal Judge Smith on the 7th April 2016, who stated that:
"The Respondent seeks permission to appeal on 2 grounds. I grant permission on the first primarily because of the Judge's reliance on paragraph 308 of GJ. It is arguable that the Judge has failed to recognise that the Appellant will be returning on her own passport and therefore the paragraph arguably has no application to her case. The second of the Respondent's grounds is weaker, particularly in circumstances where the Judge accepted the Appellant's account of her family having been 'disappeared' by state actors. However, it may be arguable that if the first ground is made out, this would impact on the issue of whether the Appellant would come to the adverse attention of the Sri Lankan authorities on return and accordingly, I do not limit the grant of permission."
7. It was on that basis that the case came before me in the Upper Tribunal.
8. On the 27th May 2016, the Secretary of State filed a Rule 15(2)(a) Notice containing the Document Verification Report referred to within the original refusal decision made by the Secretary of State on the 25th September 2015. However, within the Secretary of State's Rule 15(2)(a) Notice, it was stated that the Document Verification Report would be sought to be relied upon if an error of law was found. It was not stated within that notice that the document was sought to be relied upon in establishing an error of law in the first place. However, in his oral submissions, Mr Tufan did seek to argue that the Document Verification Report should be relied upon in considering whether or not there was a material error of law in the decision of First-tier Tribunal Judge Veloso.
9. In his oral submissions, Mr Tufan sought to argue that the Claimant would be returning to Sri Lanka on he own passport and that there was no reason why she would be deemed to have been forcibly returned. She had come to the UK as a student and students may be unsuccessful and return home. Although he agreed that forced returnees may be asked questions, he argued that it was a matter for her as to whether she was asked questions as a forced returnee and that there is no reason why she would be considered to be a forced returnee and would not be asked questions. He argued that the Claimant herself was not going to destabilise Sri Lanka. He further argued that there was inadequate reasoning to support the contention that she would be interviewed and that there was a real risk of detention and persecution.
10. Mr Tufan conceded that the Document Verification Report following enquiries by RALON in Colombo who had contacted the Grama Niladhari who was said to have confirmed that the Claimant's family was currently residing in Homogama and that therefore the Claimant's claim that her family had relocated to Habarakada at the time of the disappearance was false. He stated that the evidence was on the Home Office's file and he did not know why that evidence had not been submitted before the First-tier Tribunal Judge. However he argued that the overriding objective required justice to be done and that the system should not be abused.
11. In her submissions on behalf of the Claimant Ms Benfield relied upon her Skeleton Argument which I have fully taken into account. She argued that the Rule 15(2)(a) Notice had said that the Document Verification Report was irrelevant until any error of law was found and was therefore immaterial to whether or not there was an error. She argued that the Document Verification Report was not before the First-tier Tribunal Judge and that there had been an unreasonable delay in producing the evidence. She argued that it was dated September 2015 and therefore was in the possession of the Secretary of State at the time of the First-tier decision and that no explanation had been given as to why it was not produced before the First-tier Tribunal.
12. Ms Benfield further argued that the 2 Grounds of Appeal had no merit. She argued that the first ground asked whether or not paragraph 308 of GJ applied and she argued that the only distinction drawn in paragraph 308 was whether or not the return was voluntary or forced, and that it did not matter as to whether or not the Claimant would be returning on her own passport or on an emergency travel document. She relied upon paragraph 169 of GJ in which she said that the Secretary of State had conceded that forced returnees would be asked questions.
13. In respect of the second Ground of Appeal, Ms Benfield argued that the Secretary of State was trying re-run the case. She argued that the First-tier Tribunal Judge has accepted that the Claimant was the daughter of someone who had a profile in the military and that he had been a supporter of Mr Rajapaksa. She argued that the Judge was entitled to find that the Claimant would be at risk and that the reasoning was sufficient and that the Secretary of State simply disagreed with the decision. She argued that the Judge had not allowed the appeal on asylum grounds, but on humanitarian protection grounds and that in light of the finding that the Claimant's immediate family had disappeared the Judge was entitled to find that the Claimant would be at risk upon return. She further argued that the Judge had made reference to the fact that the Document Verification Report was not before her, despite having been referred to within the original refusal at [39] of her decision, and therefore had not overlooked that evidence, it was simply that the Secretary of State had not sought to rely upon it before the First-tier Tribunal.
My Finding on Error of Law and Materiality
14. In respect of the Document Verification Report from RALON although under Rule 15(2)(a) of the Tribunal Procedure (Upper Tribunal) Rules 2008, as amended, the Upper Tribunal may admit evidence which was not available to a previous decision-maker, I bear in mind that under Rule 15(2)(A) "In an asylum case or an immigration case - (a) if a party wishes the Upper Tribunal to consider evidence that was not before the First-tier Tribunal, that party must send or deliver a notice to the Upper Tribunal and any other party - (i) indicating the nature of the evidence; and (ii) explaining why it was not submitted to the First-tier Tribunal; and (b) when considering whether to admit evidence that was not before the First-tier Tribunal Judge the Upper Tribunal must have regard to whether there has been unreasonable delay in producing that evidence".
15. In this regard I do bear in mind that the Rule 15(2)(a) Notice was only produced with the Document Verification Report being filed and served on the 27th May 2016, on the business day before the appeal hearing in the Upper Tribunal. I further bear in mind that within that notice it was said that the evidence was sought to be relied upon if an error of law was established, rather than seeking to argue that it was relevant to the establishment of an error of law and that it was only at the appeal hearing itself that Mr Tufan sought to argue that it was relevant in establishing an error of law itself. I further bear in mind that within that notice there is no explanation as to why the evidence was not submitted to the First-tier Tribunal as required by Rule 15(2)(A)(a)(ii), and when I asked Mr Tufan about that, he could not explain why that document had not been produced before the First-tier Tribunal, when clearly it was within the Secretary of State's possession, and indeed was evidence relied upon by the Secretary of State within the original refusal notice in September 2015.
16. I therefore consider, taking into account as I must the overriding objective, that in circumstances where no good explanation has been given for the failure to submit that evidence before the First-tier Tribunal and in circumstances where in my judgement there has been an unreasonable delay in producing that evidence, in that it should and could have been produced before the First-tier Tribunal and has only been produced very shortly before the Upper Tribunal hearing, for what within the notice was said to be a different purpose from what Mr Tufan seeks now to rely upon it, that permission should not be granted to the Secretary of State to rely upon that evidence in now in seeking to establish an error or law. It cannot be in the interests of justice for the Secretary of State simply to seek to rely at the Upper Tribunal appeal hearing upon evidence which could and should have been produced before the First-tier Tribunal Judge, which the First-tier Tribunal Judge specifically noted she had not been referred to and had not been produced before her within her decision, and which therefore she was not able to take into account, as the Judge properly herself noted at [39] of her decision, in circumstances where no good reason has been given for the failure to disclose it to the First-tier Tribunal or until so shortly before the hearing in the Upper Tribunal.
17. In respect of the first Ground of Appeal as argued, the argument by the Secretary of State that the Claimant would be returning on her own passport and that therefore there was no adequate basis for concluding that the Claimant would be subject to questioning upon return by the authorities, in my judgement holds no merit. Although the Secretary of State refers to paragraphs 307 to 309 of the judgement of GJ, paragraph 307 although talking about Sri Lankans returning without a Sri Lankan passport requiring an emergency travel document for which they will need to apply to the Sri Lankan High Commission in London and that full disclosure of all relevant identity information is given in the process of obtaining such a travel document including in interview and lengthy disclosure, the Upper Tribunal was not indicating that only those who required an emergency travel document would be subject to being asked questions upon return.
18. Paragraph 308 of the judgement in GJ states specifically that "During the re-documentation process in the United Kingdom, or at the airport on return, a forced returnee can expect to be asked about his own and his family's LTTE connections and sympathies". Paragraph 309 goes on to state "Those with Sri Lankan passports returning on scheduled flights will be able to walk through Colombo Airport without difficulty, unless their names are on a "stop" list, by reason of an outstanding court order or arrest warrant. Those on a "watch" list are not stopped at the airport but will be monitored and if considered to be destabilisation risk, may be picked up from their home area".
19. However, paragraph 308 makes it clear that the distinction is between those who are forced returnees and those who are voluntary returnees. Although Mr Tufan seeks to argue that it is down to the Claimant herself as to whether she returns voluntarily or is forced, given that the Claimant has not sought to return voluntarily to Sri Lanka, but has claimed asylum, in my judgement there was sufficient basis for the Judge to consider that she may be returned as a forced returnee and to find that even though the Claimant arrived in the UK with her own passport, on arrival at the airport in Sri Lanka she would nevertheless be asked about her and her family's LTTE connections and sympathies, although she does not have any, but that such questioning would lead to adverse interest in her [42]. The distinction is not whether or not she has a passport, but whether or not her return is forced. In my judgement the Secretary of State has not established a basis for finding that the Claimant would voluntarily return and would not be forced, and there were no findings by the Judge that the Claimant would simply voluntarily return and if forced, she would be subject to questioning as established at [308] of the decision in GJ.
20. Further, given the Judge's findings that the Claimant's immediate family have disappeared as a result of the political activities of the father and that the authorities have come looking for the Claimant, albeit with lesser frequency following the involvement of the Claimant's aunt's lawyer, there is no adequate evidential basis to assume that the Claimant would simply be able to proceed through the airport either unhindered, on her own passport, or if subject to questioning, that the authorities would have no interest in her, as contended by the Secretary of State. The Judge's clear finding was that the authorities were interested in the Claimant and had come visiting her aunt looking for her at [39] of the judgement. It was open to the Judge on her findings to conclude that applying the lower standard of proof applicable that the Appellant would be questioned upon return and would thereby come to the adverse attention of the Sri Lankan authorities, even though she had arrived on her own passport and was not subject to re-documentation.
21. I further find that the second Ground of Appeal equally has no merit. The First-tier Tribunal Judge adequately and sufficiently reasoned at [42] that the Claimant would be required to give her address in Sri Lanka and would be visited after 1 week following paragraph 347 of GJ when stopped and asked questions at the airport and that although she was able to fully answer all questions both in examination in chief and cross-examination, the Judge found that this was "not without emotion and on more than 1 occasion becoming very tearful" the Judge went on to find that such a reaction when faced by the authorities was likely to lead to adverse interest and that at [43] "Checks conducted by the authorities following the Appellant's arrival at and passage through the airport are likely in any event to bring her to their adverse interest on account of the visits made to her aunt's address and questions put to her about the Appellant and her family's political activities" and that "To the lower standard that the authorities will pick her up for interview, in the process of and during which the Appellant would be at risk of persecution, including detention and disappearance".
22. Given the Judge's findings regarding her acceptance of the account of the Claimant's father and immediate family being detained by the authorities and having disappeared, and her findings regarding the continued interest shown in the Claimant by the authorities, albeit now to a lesser extent, the finding that the Claimant would be questioned and would be at a risk of persecution is both adequately and sufficiently reasoned.
23. The First-tier Tribunal Judge came to such findings on the basis of the evidence presented before her and she did specifically have in mind the reference to the information obtained by RALON at paragraph 17 and 20 of the refusal letter which was said to confirm that the Claimant's immediate family had not moved from Homogama contrary to her claim, but the Judge noted that the Secretary of State's appeal bundle did not include a copy of the document verification report, notwithstanding CK Law's Solicitors specific reference to it in their Grounds of Appeal and that in answer to her query the Home Office Presenting Officer said that he had not seen any such document. The Judge found that the Claimant's claim that the family had sold the property in Homogama was supported by an instrument of transfer with certified translation, the original of which was handed over to her at the hearing and that the move to Habarakada was confirmed by a letter from the Grama Niladhari and a witness statement from her aunt and the Judge preferred that evidence on the lower standard to the at that stage unverified assertions by the Secretary of State. As stated at the start of my decision, the Secretary of State could and should have produced that RALON report at the original hearing and no good explanation has been given for the failure to produce that report before the First-tier Tribunal Judge, in circumstances where it was relied upon originally by the Secretary of State in the refusal letter. The Judge properly considered all of the evidence that was put before her.
24. The decision of First-tier Tribunal Judge Veloso does not disclose any material error of law and is maintained.
Notice of Decision
The decision of First-tier Tribunal Judge Veloso does not contain any material error of law and is maintained.
The First-tier Tribunal Judge made an anonymity direction, pursuant to Rule 13 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, and in such circumstances I further order anonymity. Unless and until a Tribunal or Court directs otherwise, the Claimant is granted anonymity. No report of these proceedings shall directly or indirectly identify her or any member of her family. This direction applies both to the Claimant and to the Secretary of State. Failure to comply with this direction could lead to contempt of court proceedings.

Signed
R F McGinty
Deputy Judge of the Upper Tribunal McGinty Dated 4th June 2016