Tribunal decisions

The decision

IAC-AH-SC-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02499/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 18th November 2016
On 11th January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS

Between

T T
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr P Armstrong, Home Office Presenting Officer
For the Respondent: Mr J Martin, Counsel

DECISION AND REASONS
1. The Appellant is a citizen of Sri Lanka born on 31st January 1991. The Appellant initially left Sri Lanka in 2011 where he travelled to France and made an asylum claim which was refused. After three years in France an agent tried to get him to Australia but he was stopped in Malaysia and removed back to Sri Lanka on 4th February 2014.
2. The Appellant then left Sri Lanka again on 28th February 2014 arriving in Malaysia on the same day. He remained there until 22nd May 2014 when he left by air arriving at Gatwick Airport on the same day. He approached the Asylum Screening Unit at Croydon on 4th June 2014 to make an asylum application, but his application was referred to the Third Country Unit as he had been fingerprinted and had made an asylum application in a member state.
3. The Appellant's application for asylum was based on a claim to have a well-founded fear of persecution in Sri Lanka on the basis of his political opinion. That application was refused by Notice of Refusal dated 26th October 2015.
4. The Appellant appealed and the appeal came before Judge of the First-tier Tribunal Phillips sitting at Taylor House on 3rd March 2016. In a decision and reasons promulgated on 18th May 2016 the Appellant's appeal was allowed on asylum grounds.
5. On 28th May 2016 the Secretary of State lodged Grounds of Appeal to the Upper Tribunal. It was contended that the judge had made a finding at paragraph 87 of his decision that the Appellant was likely to be on a stop list and would be detained at the airport on return as a result of his deportation from Malaysia for use of a false document in 2014 and by way of his previous detention in 2011. It was submitted that the judge had not correctly applied the findings in GJ and Others (post-civil war returnees) Sri Lanka CG [2013] UKUT 00319 and despite the reference to CG at three paragraphs within the decision the judge's findings did not identify a risk category within which the Appellant falls.
6. On 10th June 2016 First-tier Tribunal Judge Grant-Hutchison refused permission to appeal considering that the judge had taken into account all the evidence and made appropriate findings which were open to her including having had the benefit of the Appellant's oral evidence on the day of the hearing.
7. Grounds for the Upper Tribunal were renewed on 21st June 2016. On 2nd September 2016 Upper Tribunal Judge Freeman granted permission to appeal. Judge Freeman noted that the hearing judge had accepted at paragraph 77 that the Respondent had shown that the Appellant had produced a false arrest warrant dating from 22nd April 2014 relating to a detention which had taken place when he was returned to Sri Lanka by the Malaysian authorities that February. However, the Respondent accepted that he had been accused of supporting the Tamil Tigers in 2009 and detained in 2011. The reasons given by the judge at paragraph 86 about the likely consequences of the Appellant's return from Malaysia did in Judge Freeman's view arguably not deal with the question of why this Appellant, who at that stage did not have a warrant of arrest out against him, should have been detained on return from that country in circumstances where GJ suggests he would not have been on return from here. Judge Freeman considered that the Judge in the First-tier Tribunal had also given full reasons at paragraph 87 for accepting that it was reasonably likely that the Appellant was on a stop list and would be detained at the airport on return. He considered however that the judge arguably had not provided any evidential basis either at paragraphs 86 or 87 for the suggestion that there is an "intelligence-led watch or stop list which exposes those on it to risks outside those set out in GJ". He consequently granted permission to appeal.
8. It is on that basis that the appeal comes before me to determine whether or not there is a material error of law in the decision of the First-tier Tribunal Judge. For the purpose of convenience throughout the appeal process Mr T T is referred to herein as the Appellant and the Secretary of State is the Respondent. The Appellant appears by his instructed Counsel Mr Martin. Mr Martin is familiar with his matter having appeared before the First-tier Tribunal. The Secretary of State appears by her Home Office Presenting Officer Mr Armstrong. Mr Martin advises that there has been no Rule 24 response filed on behalf of the Appellant.
Submission/Discussion
9. Mr Armstrong indicates that the judge has accepted at paragraph 77 of her decision that the arrest warrant is not genuine and therefore the Appellant cannot meet the requirements of paragraph 7(d) of the current category of persons at real risk of persecution or serious harm on return to Sri Lanka as set out within the country guidance authority. On the basis that the Appellant does not fall into that category the judge has failed to apply guidance given in GJ and has failed to give evidential reasons as to why the Appellant would appear on a stop list. In addition he refers me to paragraph 8 of the headnote of GJ and indicates that that too has not been applied by the judge and that therefore there are material errors of law in the decision. He asked me to remit the matter to the First-tier Tribunal for rehearing.
10. Mr Martin contends that the case is somewhat unusual in that the majority of the Appellant's evidence is accepted, for example the fact that he was detained after the end of the conflict in 2011. He submits that the judge was entitled to make conclusions regarding the detention in 2014. He accepts that the verification report states that the warrant was not genuine but that does not mean that there was no warrant. He points out that the Appellant returned from Sri Lanka to Malaysia and that it is accepted by the judge at paragraph 86 in her decision that such an event would lead to an investigation. He submits the Appellant's account was that he had breached his bail and that because of these circumstances the Appellant would be on a stop lists which would engage with the risk category of paragraph 7D based on his individual circumstances. He states that this is the approach that has been adopted by the judge and that there is no error of law. He asked me to dismiss the appeal.
The Law
11. Areas of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on fact or evaluation or to give legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
12. It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue of argument. Disagreement with an Immigration Judge's factual conclusion, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. Unless an Immigration Judge's assessment of proportionality is arguable as being completely wrong, there is no error of law, nor is it an error of law for an Immigration Judge not to have regard to evidence of events arising after his decision or for him to have taken no account of evidence which was not before him. Rationality is a very high threshold and a conclusion is not irrational just because some alternative explanation has been rejected or can be said to be possible. Nor is it necessary to consider every possible alternative inference consistent with truthfulness because an Immigration Judge concludes that the story is untrue. If a point of evidence of significance has been ignored or misunderstood, that is a failure to take into account a material consideration.
The Authorities
13. The relevant paragraphs of GJ and Others (post-civil war returnees) Sri Lanka CG [2013] UKUT 00319 are set out at 7:
"(7) The current categories of persons at real risk of persecution or serious harm on return to Sri Lanka, whether in detention or otherwise, are:
...
(d) A person whose name appears on a computerised 'stop' list accessible at the airport, comprising a list of those against whom there is an extant court order or arrest warrant. Individuals whose names appear on a 'stop' list will be stopped at the airport and handed over to the appropriate Sri Lankan authorities, in pursuance of such order or warrant.
(8) The Sri Lankan authorities' approach is based on sophisticated intelligence, both as to activities within Sri Lanka and in the diaspora. The Sri Lankan authorities know that many Sri Lankan Tamils travelled abroad as economic migrants and also that everyone in the Northern Province had some level of involvement with the LTTE during the civil war. In post-conflict Sri Lanka, an individual's past history will be relevant only to the extent that it is perceived by the Sri Lankan authorities as indicating a present risk to the unitary Sri Lankan state or the Sri Lankan Government."
Findings on Error of Law
14. It is unchallenged that there is produced in this matter a document verification report to the effect that the arrest warrant is not genuine. I acknowledge Mr Martin's contention that that does not mean there has not been an arrest warrant but with respect that does not really get him very far. On that basis and applying paragraph 7(d) it is clear that it would be wrong to conclude on the evidence that was available before the First-tier Tribunal that the Appellant met the risk category within paragraph 7(d) of the country guidance given in GJ as to the current category of person at real risk of persecution or serious harm on return to Sri Lanka. In such circumstances the finding that GJ applies and that the Appellant would be detained at the airport on return, as set out at paragraph 87 of the decision, must be wrong in fact and consequently constitutes a material error of law. I am also satisfied that it is arguable that the failure to engage with paragraph 8 of GJ also raises issues of material errors of law. In such circumstances the correct approach is to find that there are material errors of law which taint the finding of the First-tier Tribunal Judge and to set aside the decision and to remit the matter to the First-tier Tribunal for rehearing.
15. Both legal representatives urge upon me, if that is the course of action to be taken, to make reference to, and to comment on, the position relating to the Appellant's mental health. This does not appear to have been an issue that has been given much consideration, if any, before the First-tier Tribunal Judge. I am unaware as to the extent to which it was, if at all raised. However, it is clear from both the comments made by Mr Armstrong and by Mr Martin that that is an issued that would need to be aired on a rehearing. In the interest of fairness I certainly have no difficulty in accepting that proposal and bearing in mind the orders and directions made herein it is a matter that the parties may wish to address prior to bringing this matter back before the First-tier Tribunal.

Decision and Directions
16. The decision of the First-tier Tribunal Judge contains a material error of law and the decision is set aside. Directions are set out hereinafter for the future conduct of this matter.
(1) The appeal is remitted to the First-tier Tribunal sitting at Taylor House on the first available date 28 days hence with an ELH of three hours.
(2) The rehearing of this matter is to be before any Immigration Judge other than Immigration Judge C M Philips.
(3) No findings of fact are to stand.
(4) There be leave to either party to serve on the other party and to file at the Tribunal such further subjective and/or objective evidence upon which they seek to rely at least seven days prior to the restored hearing.
(5) That a Tamil interpreter do attend the restored hearing.

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 him or any member of their family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date

Deputy Upper Tribunal Judge D N Harris

TO THE RESPONDENT
FEE AWARD

No application is made for a fee award and none is made.

Signed Date

Deputy Upper Tribunal Judge D N Harris