Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03459/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 28 September 2016
On 14 October 2016

Before

UPPER TRIBUNAL JUDGE WARR

Between

M K M
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr J Butterworth of Counsel, instructed by Loshana & Co Limited
For the Respondent: Miss J Isherwood, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a citizen of Sri Lanka born on 23 February 1991. He arrived in this country with a student visit visa on 6 January 2011. On 27 June 2012 he was granted further leave to remain as a Tier 4 Student until 28 February 2014. This leave was extended until 10 April 2015. However a decision to curtail his leave was made on 26 June 2014 and he returned to Sri Lanka on 2 April 2015. However at the airport the appellant was identified by an individual called K and two days later K arrived at his home with four officers and the appellant was accused of selling boat parts (the appellant having previously worked at a shop which sold boat engines) to the LTTE. The appellant was sexually assaulted and tortured and detained for a fortnight and questioned. He was released from detention on payment of a bribe. An agent procured him false documents and he left Sri Lanka for Morocco before returning to the UK on 26 April 2015. He applied for asylum on 20 July 2015.
2. The application was refused and the appellant appealed and his appeal came before a First-tier Judge on 12 May 2016 when the appellant was represented by Miss S Jegarajah, of Counsel.
3. The respondent's decision had placed the appellant's credibility in issue but the judge's findings set out at paragraphs 37 to 44 of the determination were broadly positive and they are as follows:
"37. The respondent accepts the appellant's nationality and identity. She also accepts that the appellant's asylum claim engages a Convention reason, namely his actual or imputed political opinion.
38. I accept to the lower standard that the appellant worked in a shop selling boat parts. I accept that he was involved in a motor vehicle accident and that as a result of this he came to know K. I accept to the lower standard that K was involved with the LTTE and on learning where the appellant worked, saw that cultivating a relationship with him would be useful. I find that the appellant sold boat parts to K as claimed.
39. The appellant's claim to have been identified by K at the airport is in my view credible. The appellant's evidence is that K was [a] member of the LTTE. I accept it is plausible that the Sri Lankan authorities may seek to use former members of the LTTE as informers. I do not accept however that it is plausible that a former member of the LTTE would now be working for the Sri Lankan authorities in what appears to be a law enforcement or security role. I consider that the appellant has embellished his [sic] aspect of his claim but find that the core of his claim is plausible.
40. I have considered the medical evidence submitted by the appellant. I place no weight on Dr Lingham's assertion that the appellant has learning difficulties. Dr Lingham did not assess the appellant's cognitive functioning, did not assert any specific expertise in learning disabilities and his opinion is not consistent with the appellant having achieved ten O Levels at school or having met the entry requirements to study an HND qualification in the United Kingdom. I note that Dr Lingham recorded that the appellant told him he did not pass his HND studies and that he could not cope with the course. This is not consistent with his evidence to Dr Lawrence which was that he could not complete the course because his college closed or his evidence that he attempted to continue his studies at three further colleges.
41. I have considered Dr Lingham's evidence about the scars on the appellant's body. Dr Lingham states that he 'would confidently on clinical grounds say the instrument here is heated metal rod.' He also states that the appellant was 'NOT aware that he was burnt' (original emphasis). I am unsure of the significance of this statement particularly given his earlier statement that the 'appellant states it was heated iron rods and he felt the hotness each time burning were inflicted.' He goes on to state that the scars are clinically diagnostic of burns under the Istanbul Protocol. Dr Lingham considers whether or not there are any possible alternative causes of the appellant's scars. He rules out the possibility that they were self-inflicted on the basis that they are not in an area where the appellant could easily have caused them himself. Dr Lingham acknowledges that he cannot differentiate between deliberately inflicted wounds and wounds inflicted from trauma. He cannot rule out therefore that the injuries were caused by a proxy acting on the appellant's instructions. Dr Lingham considered that no medical condition or surgical procedure could have caused the scars. Significantly in my view Dr Lingham does not address whether or not the scars could have been as a result of injuries the appellant suffered in the accident in Sri Lanka. Dr Lingham stated that the appellant denied any wounds or injuries other than the injuries caused by the beating. This is inconsistent with the appellant's evidence that he was hit by a motorbike and spent two months in hospital as a result of his injuries. The possibility that the appellant's injuries were caused by contact with the hot motorbike exhaust in the accident for example has not been considered.
42. Dr Lingham considered the scars the appellant attributed to being burnt with cigarettes. He states that the circular appearance of the scars is diagnostic of cigarette burns. Dr Lingham states that he is 'sure' that the scars are not attributable to chicken pox or bites from mosquitoes or other insects and that he cannot think of any other medical or non-medical explanation for the scars. He considers that the scars are typical of cigarette burns and that they are highly consistent with the appellant's account. Dr Lingham rules out the possibility that the scars could have been self-inflicted because of their location on the appellant's body. In light with his statement in relation to the other scars, it is clear that he cannot distinguish between scars that were inflicted by proxy from those that are inflicted during torture.
43. I have considered the psychiatric report of Dr Lawrence. I have summarised Dr Lawrence's main findings at paragraphs 9 to 11 above. I accept that the appellant suffers from PTSD and a Major Depressive Episode. I note in particular Dr Lawrence's observations of the appellant's physiological responses when describing his sexual abuse and his opinion that such responses are very hard to simulate. I also note the presence of other symptoms which are highly significant as support for the diagnoses.
44. As I have outlined, I have some concerns about the conclusions reached by Dr Lingham; however I accept to the lower standard that the appellant has scars which are at least highly consistent with the manner in which he claims they were caused. When taken together with Dr Lawrence's evidence of the appellant's psychological state I accept that the appellant was detained as claimed and that he was ill-treated and sexually abused during his detention. I have considered the appellant's failure to claim asylum either immediately on his return to the United Kingdom in April 2015 or when he was apprehended in June 2015 and the impact on his credibility pursuant to section 8 of the 2004 Act. I have considered the appellant's credibility in the round and while his failure to claim immediately is capable of damaging his credibility, I find that it does not. In making this finding I have taken into account the appellant's mental health and my acceptance that he was ill-treated in Sri Lanka and is afraid of the authorities (Dr Lawrence's report)."
4. The judge then set out the head note to the country guidance case of GJ and Others (Post-Civil War; Returnees) Sri Lanka CG [2013] UKUT 00319 (IAC). The judge's conclusions in respect of the risk on return applying the country guidance are set out as follows:
"46. The appellant states that he was released from detention on payment of a bribe. I accept that there is a degree of corruption in Sri Lanka and that this is plausible. I find however that if there was any belief that following his interrogation the appellant in fact had a significant role in post-conflict separatist activities or that he was a threat to the unity of Sri Lanka he would not have been released in this manner. He has not adduced evidence that he has been involved in any separatist activities in the United Kingdom. I find there is not a real risk that the appellant comes within paragraph 7(a) of the guidance set out above. The appellant does not claim to be a journalist or human rights activist and does not claim to have given evidence to the Lessons Learned and Reconciliation Commission. Accordingly he does not fall within paragraph 7(b) or (c) of the guidance.
47. There is no evidence appellant is on a stop list. It appears that the appellant was identified at the airport by K because he knew him and not because the authorities were looking for him specifically. The appellant was not arrested at the airport which is consistent with objective evidence that only those on a stop list are arrested at the airport. I find that the appellant does not come within paragraph 7(d) of the guidance.
48. The appellant has no past history of personal involvement with the LTTE. Although he sold boat parts to a member of the LTTE there is no reasonable degree of likelihood that this is likely to lead the Sri Lankan authorities to perceive him as posing a present risk to the present unity of the Sri Lankan state. The appellant does not fall within paragraph 8 of the guidance.
49. At the highest, the appellant might be someone who would be monitored on return. The appellant has consistently denied that he was a member of the LTTE, that he was involved in any way in LTTE activities or that his family was involved with the LTTE. As already stated the appellant has not given evidence that he has been involved in any activities in the United Kingdom and I find that monitoring of the appellant is likely to lead the authorities to the conclusion that he does not pose a risk to the unitary Sri Lankan state. The appellant does not fall within paragraph 9 of the guidance."
5. Miss Jegarajah did not rely on either Article 3 or Article 8 of the ECHR in relation to the appellant's medical condition but the judge considered the appellant's position both under Article 8 and outside the Rules and found that the respondent's decision was proportionate and dismissed the appeal both on asylum and human rights grounds.
6. There was an application for permission to appeal and the grounds were considered by a First-tier Judge on 22 August 2016. The judge described the grounds as lengthy and inarticulate. It was noted however that having accepted that the appellant had been detained and ill-treated in Sri Lanka that there was a tension and arguable lack of reasoning for concluding that the appellant had failed to bring himself within the categories of risk on return to Sri Lanka set out in the country guidance in GJ.
7. In the respondent's response dated 7 September 2016 it was submitted that the judge had given adequate reasons for finding that the appellant did not fall within any of the risk categories. His assessment had provided sufficient explanation as to why the appellant's previous detention and ill-treatment was not indicative of an ongoing risk.
8. Mr Butterworth relied on a skeleton argument given that it had been found that the grounds were not the clearest. I observe that it does not appear that the grounds would have been settled by Counsel previously instructed who is of course very experienced in these cases. He submitted that the risk identified in the country guidance was not confined to those who were a threat to the unitary Sri Lankan state. They would be at risk if they were perceived to pose a threat.
9. The background was that the appellant had sold boat parts to K whom he had come to know following a motor vehicle accident. K was involved with the LTTE. He had identified the appellant at the airport. The judge had accepted that the LTTE might seek to use former members of the LTTE as informers. The judge accepted that the appellant's claim was plausible and that he suffered from PTSD and had had a major depressive episode. He had scars which were highly consistent with the manner in which he claimed they were caused. The judge had further accepted the appellant had been detained and ill-treated and that the failure to claim asylum on his return in April 2015 was not damaging to his credibility. The judge had also accepted that the appellant might be someone who would be monitored on return.
10. Counsel placed emphasis on the fact that the appellant had been accepted to have been detained and tortured. Past persecution was an excellent indicator of future persecution and Counsel referred to Demirkaya v Secretary of State [1999] EWCA Civ 1654. In paragraph 20 of Demirkaya it was submitted by Counsel
"That the treatment which the appellant received in the months before he escaped from Turkey was life-threatening and of a particularly horrifying kind. This is very relevant to the question whether the appellant has a well-founded fear of persecution on his return, yet the Tribunal do not advert to this aspect of the case at all."
Counsel referred to MacDonald's Immigration Law and Practice as well as "the law of refugee status" by Professor Hathaway. While it was clear from Adan v Secretary of State [1999] 1AC 293 that an applicant had to show a current well-founded fear historic fear might provide evidence to establish present fear. The judgment continues
"21. This seems to be no more than common sense. Because the Tribunal do not refer in terms to his experiences before leaving Turkey, it is difficult to know how they would deal with the matter. There does not appear to be any evidence of a significant change in Turkey. Indeed the Amnesty Reports and Mr Oberdiek's report suggest the contrary in the case of persons suspected rightly or wrongly of having links with the PKK or with a history of detention in recent years ...
22. In my judgment if it is the opinion of the Tribunal that there has been such a significant change that the appellant is no longer at risk, it is incumbent upon them to explain why this is so. In the absence of such explanation and reasoning, it seems to me there may be a real risk that someone who, because of his suspected association with the PKK, was subjected to such appalling treatment before he fled the country, will suffer more than transient ill-treatment on arrival at the airport and in the day or so thereafter that he is detained. Accordingly, I have come to the conclusion that the Tribunal's conclusion cannot be sustained."
The appellant had been detained and tortured only a year previously, some six years after the civil war had ended. There was no evidence of a significant change since the case of GJ. The appellant had returned in the GJ era and indeed three years after the date of the country guidance. There was no evidence in the previous year that the situation in Sri Lanka had got better or that there had been a significant change. He had been tortured in 2015 and how could it be said, Counsel asked rhetorically, that he would not be tortured again. There was a reasonable likelihood of this happening.
11. Counsel referred to additional submissions based on the background evidence in the light of what Counsel previously instructed had told him she had put forward before the First-tier Judge. Reliance had been placed on the respondent's Country Information and Guidance Report dated 28 August 2014. Reference was also made to paragraphs 275 and 394 of GJ.
12. Miss Isherwood submitted there was no material error of law. The appellant's family had had no problems and he had not been charged. It was not said that the authorities had been looking for him and Counsel had said in her submissions that arrest at the airport did not take place unless a person was on a stop list and a warrant was required.
13. The appellant had only been involved with K and the family had not been involved with the LTTE. The individual facts of a case should be looked at as established by GJ. The Presenting Officer's submissions had been set out at paragraphs 24 to 25 of the determination.
14. The appellant had been identified by K because he knew him. The judge had found in paragraph 48 that the appellant had had no past history of personal involvement with the LTTE. He had simply sold boat parts. It was never his case that he had had any membership of the LTTE. Any monitoring would not show that the appellant posed a risk. The grounds simply express disagreement with the findings. Miss Isherwood referred to MP (Sri Lanka) [2014] EWCA Civ 829. She also referred to paragraph 311 of GJ. The majority of the examples of ill-treatment on return were of persons who had "significant LTTE links (whether direct or familial)." The government's concern now was not "with past membership or sympathy, but with whether a person is a destabilising threat in post-conflict Sri Lanka." There was a sophisticated monitoring system in place and it was apparent from paragraph 325 that previous LTTE connections or sympathies were not sufficient. The Tribunal had stated "the extent to which past links predict future adverse interest will always be fact specific." Miss Isherwood drew a distinction between the profile of the appellants in GJ with the appellant before me. The judge had correctly applied the guidance.
15. Miss Isherwood responded to the additional arguments put forward by Counsel in relation to the objective evidence. In reply Mr Butterworth made it clear he was principally relying on the Demirkaya point and the fact that there had not been shown to be any significant change since 2015. Paragraph 6 of the head note in GJ made it clear that any risk for those in whom the authorities were or became interested was on arrival in the home area rather than at the airport. The Court of Appeal in MP had not found the country guidance to be incorrect. In relation to the background evidence it was submitted that there had been no significant change since the appellant had been tortured.
16. At the conclusion of the submissions it was agreed that if I were to identify a material error of law it would not be necessary to reconvene the hearing and both sides had had the opportunity to make the submissions that they wished on the material that had been made available.
17. I reserved my decision. I am guided by what is set out in the country guidance case of GJ and in particular the head note which reads as follows:
"(1) This determination replaces all existing country guidance on Sri Lanka.
(2) The focus of the Sri Lankan government's concern has changed since the civil war ended in May 2009. The LTTE in Sri Lanka itself is a spent force and there have been no terrorist incidents since the end of the civil war.
(3) The government's present objective is to identify Tamil activists in the diaspora who are working for Tamil separatism and to destabilise the unitary Sri Lankan state enshrined in Amendment 6(1) to the Sri Lankan Constitution in 1983, which prohibits the 'violation of territorial integrity' of Sri Lanka. Its focus is on preventing both (a) the resurgence of the LTTE or any similar Tamil separatist organisation and (b) the revival of the civil war within Sri Lanka.
(4) If a person is detained by the Sri Lankan security services there remains a real risk of ill-treatment or harm requiring international protection.
(5) Internal relocation is not an option within Sri Lanka for a person at real risk from the Sri Lankan authorities, since the government now controls the whole of Sri Lanka and Tamils are required to return to a named address after passing through the airport.
(6) There are no detention facilities at the airport. Only those whose names appear on a "stop" list will be detained from the airport. Any risk for those in whom the Sri Lankan authorities are or become interested exists not at the airport, but after arrival in their home area, where their arrival will be verified by the CID or police within a few days.
(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:
(a) Individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they are, or are perceived to have a significant role in relation to post-conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka.
(b) Journalists (whether in print or other media) or human rights activists, who, in either case, have criticised the Sri Lankan government, in particular its human rights record, or who are associated with publications critical of the Sri Lankan government.
(c) Individuals who have given evidence to the Lessons Learned and Reconciliation Commission implicating the Sri Lankan security forces, armed forces or the Sri Lankan authorities in alleged war crimes. Among those who may have witnessed war crimes during the conflict, particularly in the No-Fire Zones in May 2009, only those who have already identified themselves by giving such evidence would be known to the Sri Lankan authorities and therefore only they are at real risk of adverse attention or persecution on return as potential or actual war crimes witnesses.
(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 name appears 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.
(9) The authorities maintain a computerised intelligence-led "watch" list. A person whose name appears on a "watch" list is not reasonably likely to be detained at the airport but will be monitored by the security services after his or her return. If that monitoring does not indicate that such a person is a Tamil activist working to destabilise the unitary Sri Lankan state or revive the internal armed conflict, the individual in question is not, in general, reasonably likely to be detained by the security forces. That will be a question of fact in each case, dependent on any diaspora activities carried out by such an individual.
(10) Consideration must always be given to whether, in the light of an individual's activities and responsibilities during the civil war, the exclusion clauses are engaged (Article 1F of the Refugee Convention and Article 12(2) of the Qualification Directive). Regard should be had to the categories for exclusion set out in the "Eligibility Guidelines For Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka", published by UNHCR on 21 December 2012."
18. In this case the judge accepted that the appellant had been detained and ill-treated in a serious fashion and had been released on payment of a bribe. This had not occurred at a distant period in the past but in the previous year. Counsel's submission is very simple and in my view unanswerable. He relies on what is said in Demirkaya. There was not any evidence of any significant change in the situation in Sri Lanka since his detention. The country guidance had not changed.
19. In my view it was a material error of law for the judge not to make express reference to the principles set out in Demirkaya which are reflected in paragraph 339K of the Immigration Rules:
"The fact that a person has already been subject to persecution or serious harm, or to direct threats of such persecution or such harm, will be regarded as a serious indication of the person's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated."
20. In paragraph 44 of the decision the judge makes it clear that he accepted that the appellant had been ill-treated in Sri Lanka and was afraid of the authorities. It is clear that he has a fear of return but it is also clear (in the light of Sivakumaran v Secretary of State [1987] UKHL; [1988] AC 958) that he must demonstrate that that fear is well-founded. In this case I accept Counsel's submission that the appellant's case is similar to the circumstances identified in Demirkaya. The appellant had suffered serious ill-treatment in prison and his treatment was relevant to the issue of whether his fear of persecution on return was well-founded
21. The country guidance prevailing at the time of the ill-treatment is the country guidance which I am now considering. There has been no significant change in the objective evidence since that country guidance. It is a question of perception that is important. It is clear that the appellant himself has no interest in the LTTE but that did not protect him previously and on the Demirkaya principle it is not established that his innocence will protect him again. There is a reasonable degree of likelihood that he will be perceived as a threat and have further experience of the ill-treatment that he recently suffered. The circumstances of each case will always need to be considered on their own particular facts as was said in paragraph 325 of GJ "the extent to which past links predict future adverse interest will always be fact specific."
22. For the reasons I have given I find that the decision of the First-tier Judge was materially flawed in law. I re-make the decision.

Notice of Decision
The appeal is allowed on asylum and protection grounds. The appeal was not pursued before me in relation to Article 8.
I consider that it is appropriate to make an anonymity direction in this case.
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.

TO THE RESPONDENT
FEE AWARD
In the event that a fee was paid or payable that fee should be returned to the appellant.

Signed Date 12 October 2016

G Warr, Judge of the Upper Tribunal