Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: PA/03669/2019

THE IMMIGRATION ACTS

Field House
Decision & Reasons Promulgated
On 29th October 2019
On 30th October 2019

Before

UPPER TRIBUNAL JUDGE LINDSLEY

Between

TS
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms R Kotak, of Counsel, instructed by Gurney Harden Solicitors
For the Respondent: Ms A Everett, Senior Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. The appellant is a citizen of Sri Lanka born in 1988. He arrived in the UK in April 2011 as a Tier 4 student migrant with leave valid until November 2015. He returned in May 2012 to visit his father, and came back to the UK on 20th June 2012, lodging an asylum claim on 24th July 2012. That claim was refused on 4th June 2014, and Judge of the First-tier Tribunal Courtney dismissed the appeal on 29th August 2014. Permission to appeal to the Upper Tribunal against that decision was refused.
2. On 1st December 2015 the appellant made further submissions to the respondent which were accepted as a fresh claim but refused in a decision dated 1st April 2019. His appeal against this decision was dismissed by First-tier Tribunal Judge Louveaux in a determination promulgated on the 5th August 2019.
3. Permission to appeal was granted by Judge of the First-tier Tribunal Povey on 5th September 2019 on the basis that it was arguable that the First-tier judge had erred in law in finding the court documents and arrest warrant were forgeries.
4. The matter came before me to determine whether the First-tier Tribunal had erred in law.
Submissions - Error of Law
5. Judge of the First-tier Tribunal Courtney dismissed the appellant's first appeal but she accepted that the appellant had been arrested, detained and tortured in Sri Lanka in 2012. She accepted that he had been detained in June 2012 because he had assisted the LTTE in the manner he claimed and that he was released by payment of a bribe, but she found he was not at risk on return because he had a low level of involvement with the LTTE.
6. Judge Louveaux had evidence before him from a Sri Lankan lawyer, Mr Poobalasingham, who represented the appellant's brother in Sri Lanka, and who agreed at the request of the appellant's solicitors to check the court records relating to the appellant. Mr Poobalasingham applied to Jaffna Magistrates court and obtained certified copies of the case records including a warrant for the appellant's arrest. Judge Louveaux found that these documents were not genuine. It is argued that he erred in this assessment because he failed to follow the country guidance in GJ; because he failed to take the right approach to the respondent's obligation as outlined in PJ (Sri Lanka); and failed to assess the documents in the way set out in Tanveer Ahmed.
7. Ms Everett accepted that the First-tier Tribunal had erred in law in the decision at paragraph 33. I found that this was the case, and set out my reasoning below. I set aside the decision of the First-tier Tribunal and also set aside findings at paragraphs 33 to 44 and the private life findings at paragraph 59 to 60 of the decision. I preserved findings that the appellant is largely a credible witness at paragraphs 30 to 32 and the negative findings to do with medical Article 3 and suicide risk at paragraphs 45 to 57 of the decision which are not challenged in the grounds of appeal. The parties were both happy to proceed with the remaking of the appeal immediately on the basis of submissions only.
Conclusions - Error of Law
8. At paragraph 33 of the decision the First-tier Tribunal considers that the arrest warrant cannot be genuine because the appellant managed to enter Sri Lanka via the airport at a time when it was apparently extant. The First-tier Tribunal finds that the evidence in GJ is such that this would not be possible. I accept the submissions of the appellant that this is not an accurate reflection of the evidence in GJ which is on the issue of whether an asylum seeker might be able to leave, rather than enter, Sri Lanka when actively sought by the authorities, and confirms that this is plausible, and finds that there is no evidence on whether a bribe must be paid on exiting an airport in such circumstances.
9. The First-tier Tribunal finds that if there was a genuine arrest warrant the appellant would have been on a stop list in 2012, rather than a watch list, and errs in law in making this finding without evidence or reasoning for this conclusion. This conclusion then leads the First-tier Tribunal to find that the appellant would not have been able to pass through the airport, which he did according to his evidence, which again is said to lead to doubt as to whether the arrest warrant is genuine.
10. I find that the First-tier Tribunal also errs in law at paragraphs 34 to 36 of the decision by failing to properly apply the Tanveer Ahmed principles, and thereby consider the court documents in the round. The First-tier Tribunal failed to consider relevant country guidance information in an accurate way as set out above; failed to give consideration to a potentially relevant factor, namely the obtaining of the court documents by lawyer to lawyer communication; and also failed to weigh the generally positive findings with respect to the credibility of the appellant, as set out at paragraphs 30 to 32 of the decision.
Remaking - Submissions
11. Ms Everett conceded that the appeal should be allowed as it had been found that the appellant had been detained and tortured post-conflict, and given the particular facts of this case and evidence before the Upper Tribunal. So ultimately, given the guidance in GJ and the applicable standard of proof, there were no arguments to be put forward for dismissing the appeal.
12. I did not need to call on Ms Kotak to make submissions.
Remaking - Conclusions
13. I find, as conceded by the respondent, that the appellant has a well founded fear of persecution if returned to Sri Lanka based on his imputed political opinions. In accordance with paragraph 339K of the Immigration Rules I find that it is accepted that he has been subjected to persecution in the past, in the form of detention and torture in June 2012 for delivering medical supplies to the LTTE, and I find that there are no good reasons to consider that such persecution will not repeat itself. I find that the appellant falls within category 7(a) of GJ because he has shown to the lower civil standard of proof that he is perceived to be a threat to the integrity of the single Sri Lankan state because he is perceived to be someone who has a significant role in post-conflict separatism. I therefore allow the asylum appeal. The human rights appeal falls to be allowed on the same basis as to remove the appellant would put him at a real risk of serious harm from the Sri Lankan authorities.

Decision:
1. The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.
2. I set aside the decision of the First-tier Tribunal.
3. I re-make the decision in the appeal by allowing it on asylum and Article 3 ECHR human rights ground.

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original appellant. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings. I do so in order to avoid a likelihood of serious harm arising to the appellant from the contents of his protection claim.

Signed: Fiona Lindsley Date: 29th October 2019
Upper Tribunal Judge Lindsley