Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02382/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 19 October 2016
On 31 October 2016

Before

UPPER TRIBUNAL JUDGE McWILLIAM

Between

Mr Iroshan Illanag Don Lalindra
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr J Martin, Nag Law Solicitors
For the Respondent: Mr I Jarvis, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a citizen of Sri Lanka and his date of birth is 8 August 1985. He made an application for asylum that was refused by the Secretary of State in a decision of 23 February 2016. The Secretary of State refuses his application. The appellant appealed and his appeal was dismissed by Judge of the First-tier Tribunal Baldwin following a hearing on 18 August 2016. The decision was promulgated on 26 August 2016.

2. The appellant case can be summarised. He witnessed the abduction of his cousin, Arul. The matter was then reported to the police, who arrested and charged an individual. Following this Arul's wife was threatened by two men who put pressure on her to drop the case. The appellant provided a statement to the LLRC (Lessons Learnt and Reconciliation Committee) on 16 June 2010 following the abduction. He made a statement to the police but his account was that they did not act on this. The appellant was detained and mistreated on 2 July 2010 and then released and placed on reporting conditions. He provided a more detailed statement to the LLRC on 13 August 2010. He came to the UK on 7 September 2010 and did not continue to report as he should have done. On 30 March 2011 the police attended his home in order to execute an arrest warrant and the appellant's mother was arrested and detained for a period of five days. Four days before the hearing before the First-tier Tribunal the appellant produced documents in support of his appeal, namely a letter from an attorney in Sri Lanka, and photocopies of two summonses and an arrest warrant.

3. The appellant came to the UK as a Tier 4 dependant on 7 September 2010.

4. Judge Baldwin made the following findings;

"2. Mr Bassi sought an adjournment in order that the genuineness of the Summonses and Warrant provided very recently by the Appellant could be verified by RALON checking with the Issuing Police Station in Sri Lanka. Whilst I was aware that there would be some situations where a local check could properly be made with an organisation no member of which was an alleged actor of persecution, Article 22 of the Council Directive of 2005 on Asylum Procedures appeared to preclude an approach to the police in a claim such as that of the Appellant. Furthermore, whatever steps were taken by RALON to delete particulars of the Appellant's name in any enquiry, it was self-evident that if the documents in question were genuine the subject's name would immediately become apparent. Not only would such an enquiry appear to be in breach of Article 22 and Rule 339IA, there was a real risk that an enquiry might trigger an interest in the Appellant that might not have been present before and possibly put at risk close relatives still in Sri Lanka. There would also be a real possibility the police would say that a non-genuine document was in fact genuine so as to increase the likelihood of him being returned and to allow him to be so as to increase the likelihood of him being returned and to allow him to be questioned as to why Ralon were making enquiries about him. Whilst Mr Martin did not oppose the adjournment request, I was not satisfied that it would be proper to grant an adjournment for the purpose sought and I was satisfied that it was fair and just to proceed.

16. The Appellant and his wife provided brief Statements which they adopted orally in Sinhalese, neither being content to use English. She states she was not married to Don when he was detained but did know something of the history and she had thought it was a good idea for him to go to LRRC, given that it had been set up by the Government. She had agreed he should continue trying to help his cousin but also thought it was a good idea for her to get on with her applications for studies to help him get away for a bit. After failing to answer a question repeatedly put relating to roughly when she first learned of the existence of the summonses and the Warrant, she asked for time to think about it. I allowed her to do so and she then said she learned of the summonses from his mother soon after January/February 2011 and in March 2011 her mother mentioned a warrant. He provided copies of 2 summonses, dated 5.1.11 and 20.1.11 respectively, for him to attend Court on 20.1.11 and 8.2.11 respectively, plus a warrant dated 5.3.11 relating to his failure to appear at court on 8.2.11. The Appellant told me he could not provide the originals because the original of neither type of document is left. He also provided a letter from his solicitors to an Attorney in Wattala which asks for 11 questions to be addressed, but it is clear that the Attorney's letter was not written in response to Nag Law's letter because the former pre-dates the latter. The Appellant told me he was unable to provide this correspondence until very recently because the Attorney had changed his address and telephone number and he had chosen to rely on his mother to pursue this and she was quite old. The letter from the Attorney makes it clear that it is written in response to instructions from the Appellant's brother. The summonses and warrant are the certified copies he obtained. The Attorney states he believes the Appellant would be arrested on return and the outcome 'quite pathetic'. The Appellant's mother, he states, was detained for 5 days and released on one year's reporting conditions, though he does not indicate whether he acted for her in this regard or had any personal knowledge of this, or was relying solely on what the Appellant's brother had told him, though in respect of his assertion he acted for the Appellant in July 2010 he is clearly holding that out as personal knowledge. He attaches a Bar Association Card issued on 27.9.13 which records the same address as that on his August 2016 headed notepaper. He makes no mention of any reason for the delay in the Appellant causing him to be approached for assistance.

21. The onus of proving the documents the Appellant has provided are genuine is on the Appellant. That issue has to be considered in the context of the evidence as a whole and the Appellant's lack of opposition to the Respondent's request to check the genuineness of the documents. That said, a represented Appellant would presumably know that the Respondent would probably be acting in breach of Article 22 and Rule 339IA if she acted upon this and that if she did so, even if there were not a real risk before, it might well be possible to argue a real risk after the Sri Lankan authorities were approached.

22. The Appellant is not a Tamil and he has never supported LTTE or the Tamil cause. Nor has he demonstrated in the UK against the Sri Lankan Government during the 70 months he has been here. On the face of it he would therefore hardly be perceived to be supportive of the Tamil cause. However, the issue in this case is whether he did file a Statement with LLRC in mid-2010, ostensibly because the police were not acting upon the report he made to the police about his brother-in-law being abducted on 6.2.08. He has not provided a copy of the Statement he says he made to LLRC nor, more tellingly I find, a single piece of correspondence from them concerning the complaint. Furthermore, at Interview he made it clear that the police did act upon his report because they not only identified the owner of the phone who made the ransom call, they also arrested that man and put him before the court. That strongly suggests that the police were satisfied there was a prima facie case against the Arrestee and that they were satisfied that the Arrestee was not acting as an agent of the authorities. He stated that, following intimidation of the abductee's wife, she withdrew the case, but hat would seem implausible as she was not a witness to the abduction and was at home in Negambo when the Appellant and his brother-in-law's brother reported what the two of them had witnessed. If there was a court appearance by the Arrestee, as the first Appellant claims, and it was later withdrawn, then there should be a record of this in the Court's Register but no extract has been provided.

23. I turn next to the two summonses and the warrant provided at a very late stage in a Bundle not submitted until just four working days before the Hearing. In this regard, the first Appellant faces not inconsiderable obstacles. Firstly, he made it very clear in Interview that he had no evidence whatsoever of a warrant ever having been issued. If he had no evidence but could see a possible way of obtaining it, then that would have been the time to say that and to explain why he had not already taken steps to obtain it, given that four months had already passed since he claimed asylum. Secondly, he faces the difficulty that his wife made it clear that she knew of the existence of both the summonses and the warrant in the first quarter of 2011, soon after they were allegedly issued. If this were so and they were genuine, the question which then arises is why it took 4.5 years to get around to claiming asylum, an issue to which I now turn.

24. The Appellant maintains he was advised in, effect, not to both claiming asylum - relying instead on further applications as a dependant of his wife. His evidence has not been entirely consistent about this, shifting from taking advice from one solicitor, to taking advice from four solicitors over a 2-day period. Whilst recognising that not every person holding themselves out as having Immigration Law expertise does indeed have it, the Upper Tribunal has made it clear that where an Appellant maintains that a previous representative is responsible for something which is being held against the Appellant, that representative should be written to, inviting their response - and that letter and any response should be placed before the Tribunal - ('BT' (Nepal) at paragraph 19 ante). There is no evidence to show that this was ever done. Nor is there any evidence that efforts have been made by the Appellant or his representative to trace one or more of them. I find it highly implausible, if the Appellant did take advice on this from one or more representatives, that he would not be able to remember one single name or one single address - (beyond the very vague indication of two of them being in 'East London'). I find it not credible that he ever did take legal advice on this and this failure to do so is not helpful to his general credibility.

25. I turn next to the very late submission of letters from relatives and a Sri Lankan Attorney. I find the Appellant's assertion that it took him many months to locate the Attorney highly implausible, though it might, of course, not be implausible that it would take him many months to identify one who was content to provide doubtful evidence. It is not suggested that he forgot the name of an Attorney he says he used years ago and it is, I find, simply not credible that - with or without the assistance of the U.K. solicitors who have been representing him since at least the beginning of March 2016 - he would not have been able to track down the whereabouts of a practising Attorney in Sri Lanka quite quickly, with or without his mother's assistance. It is also clear that the Attorney's letter pre-dates the letter from Nag Law to him, as it is that the Attorney's letter was written on the basis of matters referred to in a 'telephone conversation' between the lawyers and information provided by the brother a week earlier. As the Attorney does not suggest he represented the Appellant's mother, it would appear he would have been reliant on the brother for information about this and the Attorney mentions no personal knowledge he has of it. The question which arises is not just why all this evidence, in the form of summonses, a warrant and letters from an Attorney and several relatives was not provided much earlier: it is also why at least some of this was not obtained in the four months between the time the Appellant finally got around to claiming asylum and the date of his Interview. If the claim were genuine, and they both clearly knew of the Summonses and Warrant and representation of the Appellant by an Attorney in Sri Lanka as far back as early 2011 - there should have been more than enough time to secure documentary proof of these matters before he was even interviewed. The Appellant is not some uneducated youth. He was already 25 when he entered the UK and he stated in Interview he was tri-lingual. His wife is the same age and has spent years studying in the UK to Degree Level. Between them they should have been very well-placed to find out what to do soon after they became aware of the summonses and a warrant if these are genuine. When all this is considered alongside all the other evidence, I find that these documents are not proven to be genuine and the assertions of the Attorney cannot be relied upon. There is a complete absence of any corroborative documentation from the LLRC. That Body may have been wound down some time ago, but it is hardly likely if a complaint were made to it that the Appellant or his brother's brother-in-law or the wife would not have retained some documentation relating thereto - particularly if the husband has remained missing all this time. It is the involvement of the LLRC in the investigation as to the disappearance of his brother which is at the centre of this claim - and a failure to provide any documents relating thereto is, I find, a notable failure and is significant. The Appellant, I conclude, has not proven even to the low standard required that he is of adverse interest in Sri Lanka or that he has a well-founded fear of persecution or serious ill-treatment there, or that there is a case for the grant of Humanitarian protection.

26. No submissions were made in relation to Article 8. The family would be returned together to a country which the parents left six years ago, where they have spent most of their life and where their language of choice is spoken. The child is only 2, and evidence of their lives here beyond the wife's apparently completed studies is notable for its absence. They clearly have close relatives in Sri Lanka, and with all the UK Higher Education the wife has apparently now completed, she should be very well equipped to undertake work at a higher level than she was when she left Sri Lanka. The circumstances are far from being exceptional, their removal would be neither disproportionate nor unreasonable and it would be in the interests of effective immigration control. The claim in respect of Articles 5, 6 and 14 have not been articulated and are not made out."

Conclusions

5. Paragraph 6 of the grounds argues that the respondent had a viable route in respect of the verification of the documents and chose not to follow it and the case of PJ v Secretary of State for the Home Department [2014] EWCA Civ 1011 is relied upon (specifically paragraphs 30, 31 and 32). It is argued that it was not open to the Secretary of State to mount a challenge to the documents and therefore the judge erred at [25] of his decision. The Court of Appeal in PJ decided that there is no rebuttable presumption that documents produced in these circumstances are reliable and that the relevant jurisprudence does no more than indicate that in circumstances of a particular case there exceptionally necessitate an element of investigation by the national authorities, but that this will often be disproportionate, not feasible or unjustified. There was no breach of obligation in this case that would render the Secretary of State unable to mount a challenge as to the documents authenticity. The documents were not before the Secretary of State until four days before the hearing and the judge concluded that the enquiries envisaged by the Home Office Presenting officer were not feasible for the reasons he gave. The case of PJ turned on its own special facts which are readily distinguishable from the facts of this case. For the reasons given by the Court of Appeal, in that case there was strong prima facie evidence of the authenticity, and hence reliability, of a warrant issued by a Magistrate for the appellant's arrest, as two separate lawyers (one of whom was accepted by the UT Judge to be a bona fide lawyer) had retrieved a copy from the court file on two separate occasions. The documents in this case were not before the Secretary of State until four days prior to the hearing, the judge did not accept the reasons for the delay and the enquiries envisaged by the Secretary of State were not feasible.

6. There is no challenge in the grounds to the judge's decision to refuse to adjourn the case. There was no argument before me that there was arguable procedural unfairness as a result of the decision of the judge. It is clear that the respondent was willing to attempt to verify the documentation but the judge did not consider that the route proposed by the Presenting Officer was a viable route. There is no challenge to this decision.

7. The remaining challenges are in my view a disagreement with the findings of the judge. The appellant made two statements to the LLRC and the judge was wholly entitled to take into account that he had not produced a "single piece of correspondence concerning the complaint". He provided statements in June 2010 and in August 2010 and in between those two dates his account is that he was arrested. The LLRC ceased to exist in November 2011 according to the appellant but this does not give rise to an arguable error of law.

8. The judge found that it was implausible that Arul's wife could have withdrawn the complaint as she had not witnessed the abduction. It is suggested in the grounds that as the next of kin she had the power to withdraw the complaint. Furthermore it is also argued in the grounds that the judge was critical of the fact that there was no court record of the proceedings involving the abduction but as the appellant was not a party to the proceedings he could not have obtained these. The judge was entitled to conclude that Arul's wife could not influence matters as she was not a witness. The findings were entirely open to the judge. The appellant's case was that there was a court hearing that was subsequently withdrawn and the judge was entitled to conclude that it was reasonable to expect some corroborative evidence of this. It is asserted that the judge was wrong to consider the delay in obtaining documents damaging to the appellant's credibility with reference to [24] and it is argued that the judge was unrealistic to expect the appellant to be able to obtain evidence relating to previous advice that had been given to him by solicitors or legal representatives. The judge was manifestly entitled to take into account that the appellant had delayed, by a significant period of time, in claiming asylum as damaging to his credibility. He was entitled to conclude that the appellant's evidence about previous advice was not consistent.
9. The judge was entitled to reject the appellant's evidence in relation to the delay in obtaining documents. In relation to the letter from the attorney the judge did not accept the appellant's evidence that it had taken him many months to locate the attorney because he had forgotten the attorney's name. Again this was a finding that was open to the judge and one that was grounded in the evidence. What weight to attach to the documents was a matter for the judge. I note what is said in the grounds about the letter and the date of the letter but the judge notes that the attorney referred to a telephone conversation with the appellant's solicitors.

10. To summarise, the grounds expanded on in oral submissions by the appellant's Counsel do not identify an arguable error of law and the decision of the judge to dismiss the appeal on asylum grounds is maintained. The judge made findings that are grounded in the evidence and adequately reasoned. The grounds amount to a disagreement with the findings and an attempt to re-argue the case.

Notice of Decision

The appellant's appeal is dismissed. The decision of the FtT to dismiss the appeal on asylum grounds is maintained.

No anonymity direction is made.

Signed Joanna McWilliam Date 27 October 2016

Upper Tribunal Judge McWilliam