Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03469/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 24 October 2016
On 3 November 2016

Before

UPPER TRIBUNAL JUDGE PERKINS

Between

s a D R P
(ANONYMITY DIRECTION MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M Murphy Counsel instructed by Nag Law Solicitors
For the Respondent: Ms A Brocklesby-Weller, Home Office Presenting Officer
DECISION AND REASONS
1. Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 I make an order prohibiting the disclosure or publication of any matter likely to lead members of the public to identify the respondent. Breach of this order can be punished as a contempt of court. I make this order because publishing the appellant's identity might be thought to create a risk that would not otherwise exist.
2. Here the appellant appeals with the permission of an Upper Tribunal Judge a decision of the First-tier Tribunal on 7 April 2016 to refuse his protection claim. He is a citizen of Sri Lanka and claims that he would be at risk in the event of his being returned to his country of nationality.
3. I begin by considering the decision of the First-tier Tribunal Judge.
4. This shows that the appellant arrived in the United Kingdom in September 2008 using his own passport and having entry clearance as a student. His leave was extended in stages until 26 September 2016 but was curtailed in February 2015 to expire on 25 April 2015.
5. He was encountered on 22 February 2016 working illegally as a cashier at a petrol station in north London.
6. On 26 February 2016 removal directions were set and the next day he claimed asylum.
7. It was his case that he had worked in Saudi Arabia, the Maldives and later in Dubai.
8. He became friendly with a Sri Lankan who I identify as SD. His friend SD introduced him to people looking for jobs so that they could extend their visas to remain in Dubai. In May 2007 he resigned from his job and returned to Sri Lanka with the intention of applying to enter the United Kingdom as a student.
9. In November 2007 he lived in Ratmalana which is a city in the Colombo district and he was visited by members of the Terrorist Investigation Department. He was taken to the TID offices in Fort Colombo and questioned about his connections with SD and two of SD's "friends" who he had helped find work. The appellant was accused of having assisted terrorists to obtain employment. He was also questioned about bomb blasts in Colombo because the two men identified were involved in setting off bombs in buses.
10. The appellant admitted providing jobs for the men but denied any knowledge of any terrorist links. He said he was held for half a day and his interview was recorded in a statement. His brother was later able to obtain a copy of that statement with the assistance of an attorney.
11. He said he left Sri Lanka to study in September 2008 and he returned there for a holiday in July 2011.
12. He was not stopped at Colombo Airport. He was arrested by the TID at his home in July 2011. He was detained for six or seven hours and interrogated about SD and the two people he had employed. He was asked questions about his passport and particularly why his old passport had been replaced. He was told by the TID that they had a copy of his passport and they knew his address in the United Kingdom.
13. He returned to the United Kingdom in August 2011.
14. Sometime in 2012 his mother told him that "unknown people" had visited his neighbours asking about the appellant's family. They identified themselves as friends from Dubai but he believed they were TID officers in plain clothes.
15. He said that in November 2013 his mother informed him that a notice had been sent to his home address requiring him to attend the Colombo Magistrates' Court in January 2014. He had returned to Sri Lanka on 10 December 2013 planning to attend court but he was taking legal advice and was told that he would have to surrender his passport if he presented himself to court and he decided not to attend. He returned to the United Kingdom in January 2014. He said that a warrant for his arrest was issued because of his non-attendance at court.
16. He said he did not receive notice from the Home Office that his leave to remain had been curtailed. He found out about that when he was encountered by the Home Office.
17. He summarised his claim as a fear of arrest and torture in Sri Lanka.
18. His appeal was heard on 23 June 2016.
19. He served a bundle of papers including something identified as a "police report" identifying the appellant as a suspect and a notice saying the police had issued a warrant for his arrest as someone who had "fled the country". In addition to the notice telling that a warrant had been issued there was a copy of the warrant and a letter from one Jayatissa Ruhunage who was identified as the appellant's attorney and proof of postage of documents.
20. At the appeal hearing he gave evidence supplementing his witness statement dated 6 May 2016 stating that the police and court documents had been obtained by his mother who instructed a solicitor to obtain them from the court.
21. Under cross-examination it was his evidence that the documents were only available from a lawyer.
22. He said that he had been helped to leave Sri Lanka with the aid of a politician whose influence was such that people were disinclined to ask questions. He did not wish to identify the politician but said he was a member of the Sri Lanka Freedom Party.
23. He said that he did not apply for asylum on his return to the United Kingdom in 2014 because his visa was valid until 26 September 2016. He accepted that his leave had been curtailed. It was his case he did not know about the curtailment.
24. At paragraph 52 of the decision and reasons the First-tier Tribunal Judge noted that the documents were supported by a letter from one Jayatissa Ruhunage dated 17 June 2016. The writer identified himself as an "attorney at law". He said he was acting on the instructions of the appellant's mother to obtain court documents. He said that he had posted them to the appellant's solicitors in London. He gave no details of how he had obtained them but identified himself as a Member of the Bar Association of Sri Lanka. The documents had been sent to the Tribunal with a covering letter from Nag Law on 21 June 2016. The comprised a copy of a warrant of arrest issued by the Magistrates' Court at Colombo naming the appellant. The warrant identified the offences as "breach of bail condition" and "aiding and abetting the terrorists". It was signed and dated 22 January 2014.
25. At paragraph 53 of the decision and reasons the judge noted that the appellant had claimed to have been released on bail. He said simply that he had been released. The appellant claims to have been told when he was released that he "could go but they would come and question me further if necessary". The judge found that the description of being released in this way was not consistent with his claim to be in breach of bail conditions. The judge looked at the evidence as a whole and the First-tier Tribunal Judge plainly found the evidence as a whole to be unsatisfactory.
26. At paragraph 63 of his decision and reasons the judge said:
"I take the view that the appellant has not given a clear and consistent account of the circumstances which caused him to leave Sri Lanka, the type of questioning he was subjected to and the ill-treatment which he suffered. He was released from detention on both occasions and not held overnight. He said he was mentally tortured but was not specific about this. He did not mention being bailed to return for further questioning and did not refer to any conditions of bail. Despite this the warrant for his arrest which he has produced for his appeal hearing states that he is accused of being in breach of bail conditions. I find that his account of the accusations made against him were not described clearly. At interview he could not remember the name of one of the men he was supposed to have helped and when asked about it again at the appeal hearing he still did not know."
27. He went on to note that the lawyer's letter sent with the papers from the court did not explain in detail how they were obtained. It was the appellant's case that his mother had moved house but she was not approached by the police or security officials or asked about him and he was not required to report after being interrogated. The judge regarded it as normal practice for persons accused of terrorist activity to be required to report regularly. The judge considered the appellant's evidence that he had returned to the United Kingdom in January 2014. He had said variously that he was assisted by an agent and by an unnamed politician. The judge regarded these as different accounts. The judge was not concerned that the warrant did not specify an offence because he accepted evidence that warrants can be used during the investigation process but he did find it surprising that the warrant (not the police report) mentioned a breach of bail conditions. The appellant had never claimed that he was on bail.
28. At paragraph 68 of his decision the First-tier Tribunal Judge directed himself, correctly, that the appellant only had to prove his case on the basis of a reasonable likelihood. He then went on to identify parts of the account that he found unsatisfactory.
29. He factored into his assessment that the potentially helpful papers purportedly from a lawyer in Sri Lanka were obtained only just before the hearing and served on the day before the hearing.
30. He found there to be a "significant delay" between the appellant returning to the United Kingdom in January 2014 and his claiming asylum after he was caught working as a cashier in February 2016. He said he had not taken advice from a solicitor. The judge found it damaging to his credibility that he had not taken advice or obtained any information about the court hearing from his original lawyer in Sri Lanka sooner than he did.
31. He also found the documents themselves to be less than satisfactory. It did not help that the attorney's letter did not give a full account of how they were obtained or indeed what exactly what was obtained. He repeated his concern about the alleged breach of bail conditions which is unexplained and not supported by the appellant's own account.
32. He reminded himself of the well-known decision in Tanveer Ahmed [2002] UKIAT 00439 and he did not believe the core claim. Against that finding the decision to dismiss the appeal was inevitable.
33. Although Mr Murphy addressed me helpfully he also relied on grounds drawn by Counsel who appeared in the First-tier Tribunal and I consider them now.
34. The grounds begin with an appropriate and long quotation from the decision in PJ V SSHD [2014] EWCA Civ 1011. The decision in PJ concerned another example of cases being supported by documents produced by local lawyers. The grounds are particularly focused in criticising the Secretary of State for not applying for an adjournment to consider the documents.
35. According to the grounds the respondent has "straightforward procedures in place to conduct checks of such documents and decided not to do so". The grounds contend that, allegedly following PJ, that there is a duty of verification as the documents were central to the appellant's case and the verification procedure was straightforward.
36. It is emphasised that in this case the First-tier Tribunal Judge expressed no doubt that the documents were indeed produced by an independent Sri Lankan lawyer. Further, it is well understood that Sri Lankan lawyers can obtain documents in their official capacity that are not available to members of the public. The grounds further contend that there was no particular utility in the lawyer explaining in detail how the documents were obtained because it is known that lawyers can obtain documents from courts. The judge, according to the grounds, wrongly made a weighty point out of something that was merely a fact and not a fact that illuminated the merits of the case one way or the other.
37. The grounds also suggest that the judge was at fault in not considering the possibility that falsely obtained documents to order would not have made reference to the appellant being on bail when that had never been his case.
38. In essence, the thrust of the grounds, and the thrust of Mr Murphy's argument, was that although the decision in Tanveer Ahmed was acknowledged it did not really meet the justice of the case. This was a case where the appellant had relied (he said) genuine documents produced by an independent Sri Lankan lawyer, albeit at the last minute, which had tended to show that he would be in trouble on return and they should not have been set aside without clear findings and a proper explanation.
39. The second ground attacks the credibility findings generally but it can be summarised as being no more than a disagreement. It adds nothing to the point already made.
40. Also the grounds contend the judge made a mistake of fact when he said at paragraph 60 of his decision that there had been no direct contact between the appellant and the attorney in Sri Lanka when it was the appellant's case that he had indeed spoken to the lawyer by phone and asked him to make the arrangements. The mistake was said to have been material because the judge had wrongly relied on a claim that there was no direct contact to undermine credibility because the attorney said he had been instructed by the appellant.
41. I am unimpressed by this ground of appeal. It is not clear to me why the judge made any reference to their being "no direct contact between them" but it seems to me this is a correct state of affairs. The lawyer was not the lawyer who represented the appellant earlier but someone contacted to make enquiries of the court. To elevate this to an error of law on the part of the Tribunal is to read too much into a phrase which might be an inaccurate description of a minor point. I do not agree that the judge relied on the "fact" that the appellant had never spoken to the lawyer as a reason to disbelieve the documents. Whilst accuracy is to be encouraged Decisions are not to be construed as if they were statute law.
42. Ms Brocklesby-Weller, appropriately, referred me to the decision of the Court of Appeal in MA (Bangladesh) v SSHD [2016] EWCA Civ 175. However, I am concerned at the potential importance of the evidence purportedly provided from the Sri Lankan courts. If that evidence is reliable then it is good evidence that the appellant is positively wanted by the authorities in Sri Lanka for interrogation concerning terrorist matters. It may not be a very huge leap from that state of affairs (if it exists) to his being a refugee.
43. The judge has not made any clear findings on the evidence provided by the lawyer so I do not know if he thought it was provided by a dishonest lawyer or a person pretending to be a lawyer and had no evidential value whatsoever or if it was provided by an honest lawyer who had been given it by a corrupt court official and so again it had no evidential value whatsoever that assisted the appellant. He clearly did not consider it to be good evidence that the appellant was wanted by the authorities but has not given a reason which shows proper regard to the potential importance of the evidence.
44. I have to consider the position from the prospective of the First-tier Tribunal Judge. He was asked to determine an appeal and a potential important document was produced at the last minute. When I read the papers in preparation for the hearing I did not think I would be making the decision that I am. I have reflected on the submissions and particularly on the Court of Appeal decision in PJ. Cynicism comes easily to judges and the arrival of allegedly important documents from a Sri Lankan court a few days before the hearing might have the predictability and plausibility of the arrival of the cavalry over the hill on the last roll of a B movie. However it is, sometimes, good evidence that somebody is in really serious trouble and that cynicism must be suppressed and replaced by reason.
45. It would seem that there are enquiries the Secretary of State could make which would help the judge determine the authenticity or otherwise of the document. I am satisfied that if it is potentially of such importance the Secretary of State should be given an opportunity to consider it and give further evidence, if she wishes, to assist the Tribunal. However I do not accept that the First-tier Tribunal erred in law by failing to adjourn. Judges have wide discretion in considering adjournment applications and litigants should comply with directions rather than complain if the Tribunal does not adjust its timetable to their convenience.
46. Nevertheless, I am persuaded that the First-tier Tribunal erred. The documents are potentially important and the Judge should have explained why he was not impressed by them.
47. In all the circumstances I am persuaded that the First-tier Tribunal did err in law by not giving proper consideration to the court documents. I set aside its decision and I direct the case be heard again in the First-tier Tribunal. I decline to give any directions about the conduct of the Secretary of State. I have indicated clearly here the sort of enquiry that might be made. If the Secretary of State chooses to do it I hope that the First-tier Tribunal will give any reasonable time that is needed which, of course, might be available simply by reason of the time it will take for the case to be re-listed. Conversely, if the Secretary of State chooses to do nothing she may find it very hard to resist criticism and adverse inferences but that will be a matter for the judge in the First-tier Tribunal in due course.
Notice of Decision
This appeal is allowed to the extent that the decision of the First-tier Tribunal is set aside and I direct the case be heard again.

Signed

Jonathan Perkins
Judge of the Upper Tribunal

Dated 3 November 2016