Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/04367/2016

THE IMMIGRATION ACTS

Heard at Stoke
Decision & Reasons Promulgated
On 6th December 2017
On 19 January 2018

Before

UPPER TRIBUNAL JUDGE REEDS

Between

JS
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Mohzam instructed on behalf of the Appellant
For the Respondent: Mr Bates, Senior Presenting Officer

DECISION AND REASONS
1. The Appellant is a citizen of Sri Lanka.

Direction Regarding Anonymity - Rule 13 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014

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.
2. The Appellant, with permission, appeals against the decision of the First-tier Tribunal, who, in a determination promulgated on the 14th November 2016, dismissed her claim for protection. The Appellant's immigration history is set out within the determination at paragraphs 4-6, namely that the Appellant and her husband had arrived in the United Kingdom on 25 November 2010 and made a claim for asylum on 1 February 2011. A decision was made refusing that application and the Appellant appealed to the First-tier Tribunal. At a hearing on 11 July 2011 the appeal was dismissed. An appeal to the Upper Tribunal was lodged. The Tribunal found the First-tier Tribunal had made an error of law and substituted the same decision again refusing the appeal by a decision of Upper Tribunal Judge Perkins dated 19 June 2012.
3. The Appellant became appeal rights exhausted on the 12th November 2012. She was not removed from the United Kingdom and on the 12th January 2016 she lodged further submissions. The respondent treated this as a fresh claim.
4. Thus for the present application, her claim was considered but refused in a detailed decision letter of the 7th April 2016.
5. The Appellant exercised her right to appeal that decision and the appeal came before the First-tier Tribunal on the 3rd November 2016. The judge had the opportunity of hearing the evidence of the Appellant and her spouse and for their evidence to be the subject of cross-examination. The judge in the determination did not find that she or her husband were of any interest to the Sri Lankan authorities, either on account of their history or on account of any sur place activities in the U.K and dismissed her appeal.
6. The Appellant sought permission to appeal that decision on the basis that the First-tier Tribunal Judge failed to provide sufficient or sustainable reasons for the adverse findings that were contained within the determination. Furthermore that the judge had failed to engage with paragraph 4.15 of Appendix C of GJ as to questions asked on arrival. It was further submitted that the Court of Appeal had granted permission to appeal in UB (Sri Lanka) C5/2015/0753 relating to membership of proscribed organisations.
7. Permission was refused by the First-tier Tribunal (Judge Saffer) on the 3rd January 2017. Upon renewal to the Upper Tribunal Judge Finch granted permission on the 16th February 2017 on limited grounds as set out below:
"The First-tier Tribunal gave sufficient reasons for most of the findings and was not required to give further detail and many of the findings were open to her on the evidence before, including her assessment of the oral evidence appeal hearing. However, paragraph 44 her decision and reasons the First-tier Tribunal Judge accepted that the Appellant's husband given a sworn statement to the International Centre for Prevention and Prosecution of Genocide about the past activities of the Sri Lankan authorities. The First-tier Tribunal Judge then failed to consider this aspect of the Appellant's case in the context of GJ and others (post - Civil War: returnees) Sri Lanka CG[2013] UKUT 319 where the Upper Tribunal held that current categories of persons at risk of persecution or serious harm on return to Sri Lanka, whether in detention or otherwise includes: " individuals who are given evidence to the Lessons Learnt 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 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 a real risk of adverse attention or persecution on returns potential or actual war crimes witnesses."
8. At the hearing before the Tribunal, Mr Mozham relied upon the grounds and had provided a skeleton argument. He submitted that the Tribunal at paragraph 44 failed to consider whether the Appellant would be at risk by her husband having given a sworn statement to the ICPPG. This was a risk recognised in the head note of GJ and that the Appellant fell into the category of a person would be at a risk of adverse attention by the authorities. Whilst the Respondent made reference to a difference between the two organisations, the judge did not consider that issue as to whether the Appellant would be at risk.
9. He further submitted that UTJ Perkins made a finding at paragraph 15 where he accepted that the Appellant may be of interest to the Sri Lankan authorities due to her past ill-treatment. He therefore submitted that there was a likelihood that she and her husband may be stopped at the airport and questioned on return. In this context attendance at demonstrations and as a volunteer for the TGTE would become known. The judge did not consider the material and policy guidance referred to in the decision of UB (Sri Lanka) (as cited). Therefore the judge made no consideration risk on return based on material that should have been provided. In line with HJ (Iran) the Appellant could not be expected to lie as to any involvement in a proscribed organisation.
10. Mr Bates on behalf of the respondent made reference to his skeleton argument which attached to it the relevant guidance as at November 2016. It was accepted by the Respondent that the TGTE was a proscribed organisation. However he submitted that the error was not material because the judge made a distinction as to her role in the TGTE which was as a volunteer ( and not a member of the TGTE) and that she was not genuine in that respect. Whilst the Appellant cannot be expected to lie (see HJ (Iran)) as the judge found that she was not genuine in any support, she would not seek to deceive the authorities because she held no genuine beliefs (see findings at paragraphs 41 and 45).
11. He made reference to the relevant guidance and drew attention to the annexed document at B3 of the CPIN which was a letter dated the 30th of November 2015. It made clear that the "new government" now in power had de-proscribed a selection of Tamil groups however this did not include the TGTE. However because the judge had found that she acted as a volunteer this would not have made a material difference to the assessment of risk on return because they were not members and that their activities were prompted by a desire to bolster an asylum claim. Thus he submitted it resolved the issue in UB (Sri Lanka).
12. As regards the issue set out in the grant of permission, he relied on the Rule 24 response which expressly dealt with this. He submitted that there had been a misunderstanding as there is a difference between the ICPPG and the LLRC as set out in the objective material handed to the Tribunal. Whilst the Appellant's husband had given a statement to the ICPPG this was an organisation administered in the UK and had no connection to the Sri Lankan authorities and that there was no evidence to suggest that the organisation and the UNHCR did anything other than protect people's anonymity. Thus the risk factor concerning giving evidence in Sri Lanka did not apply to the ICPPG.
13. Mr Mozham by way of reply submitted that the judge had accepted the activities carried out by the Appellant and her husband and did not state that it was fabricated. Therefore even if it were right that it was to bolster a claim for asylum, it would still lead to a risk on return. The guidance makes reference to returnees being interviewed and therefore the judge should have made a full assessment of risk on return. Therefore he submitted there was an error of law which was material to the outcome and therefore should be remitted to the First-tier Tribunal to reconsider the point concerning risk on return.
Decision on error of law:
14. I have given careful consideration to the submissions made by each of the advocates when reaching my conclusions on whether the decision of the First-tier Tribunal involves the making of an error on a point of law. Whilst the original grounds made reference to the lack of reasoning in the judge's findings, permission to appeal was not given on those grounds by Upper Tribunal Judge Finch who considered that the Tribunal had given sufficient reasons for the findings of fact made (I refer to the grant permission set out earlier in this determination). There has been no application to enlarge the grounds before the hearing or before the Tribunal.
15. There is no dispute between the parties that when the appeal came before the First-tier Tribunal that the starting point were the findings of fact made by UT Judge Perkins which the judge set out at paragraph 29 and that the issue to be determined related to the Appellant's activities and risk on return due to such activities (see paragraph 6 of the FTT decision). The judge listed the issues in dispute at paragraph 28;
(i) Has the Appellant/husband been involved in significant political activities in the UK such that they will have a high profile and will come to the notice of the Sri Lankan authorities?
(ii) Is the Appellant/husband 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?
(iii) Have the authorities maintained an interest in the Appellant?
(iv) Is the Appellant/husband risk on return to Sri Lanka of arrest and persecution by the authorities due to her activities or the perception of her activities?
16. The judge made reference to the country guidance case of GJ at paragraphs 25 - 27 and had been provided with a bundle of objective evidence on behalf of the Appellant but reached the conclusion that there was nothing that persuaded him that matters are changed materially such as to depart from the established guidance. The judge also made reference to the further documentary evidence provided on behalf of the Appellant at paragraphs 30 - 36 of the determination which included a letter from the TGTE dated 7 October 2015, letter from the ICPPG, the letter from the Appellant's father, medical letters relating to the child and family and photographs of the Appellant at a demonstration.
17. The judge's findings of fact are set out paragraphs 41 - 48. They can be summarised as follows:-
(i) The Appellant and her husband have attended at least one demonstration in United Kingdom and acted as volunteer helpers of the TGTE but neither are members of the organisation.
(ii) The activity is of a low-level and neither are prominent activists.
(iii) He found that her activities in the UK been prompted by a desire to bolster her asylum claim and is not consistent with firmly held political opinions. They can explain such to the authorities if they would be questioned about activities if they wished.
(iv) The judge rejected the evidence in the form of a letter from the Appellant's father (see paragraph 42) and thus did not find that they were of any current interest to the Sri Lankan authorities.
(v) UTJ Perkins had found that she had left the airport without hindrance (paragraph 112) and obtained visas without difficulty or payment of large bribes, as had her husband. The Appellant had not shown that she was of interest to the authorities and was only able to leave by the use of bribery and corruption. He therefore did not depart from the finding that she was of no interest the authorities on leaving Sri Lanka.
(vi) The judge accepted that the Appellant and her husband had attended demonstrations and acted as volunteers for the TGTE. He also accepted that the Appellant's husband had given a sworn statement to the ICPPG. However attendance the demonstrations would not constitute a destabilising threat and do not fall into the categories of those who would be of interest to the Sri Lankan government. The sur place activities are not such that the Appellants will be of interest now.
(vii) The Appellants may be interviewed on return. They can say that they are concerned about the treatment of Tamils and have been demonstrations and have volunteered if they so wish. Or they can say they became involved in activities bolster their claim to remain in the UK (see paragraph 47).
18. The basis upon which permission was granted relates to the risk on return based on the Appellant's husband having given a sworn statement to the ICPPG. The First-tier Tribunal had a letter from that organisation dated 2 November 2015 stating that the Appellant's husband had provided evidence under oath (see paragraph 31 and 40 of the determination). Mr Mozham submitted that the Appellant would be at risk on return having given a sworn statement (see paragraph 5 of the first skeleton argument). Whilst the country guidance decision of GJ and others sets out categories of those at a real risk of persecution or serious harm which includes individuals who had given evidence to the Lessons Learnt and Reconciliation Commission it is plain from reading the material that the LLRC is a wholly different organisation from the ICPPG and the Appellant's representatives have provided no evidence that there is any connection between them.
19. Whilst I would accept that the judge did not expressly deal with any risk based on having given such a statement to the ICPPG as a discrete issue, there was no evidence before the judge that concerned that particular organisation. The respondent has provided objective material in the form of a newspaper article relating to the LLRC and it makes reference to a report which was handed to the president in 2011. It sets out the ambit of the commission and the public sittings which were held in various cities in Sri Lanka. The respondent also produced an article from the UK Tamil line relating to collecting evidence and witness statements by the ICPPG. The article demonstrates the organisation is based in and administered in the UK and passes material to the UNHCR. There is no evidence before the FTT or this Tribunal that the organisation or the UNHCR provide the names of those who are provided any statements or otherwise compromise any anonymity. Furthermore there is no evidence that the Sri Lankan authorities have been provided with this information. Nor has it been shown that there is any obvious way for the Sri Lankan authorities to connect any statement made to this Appellant.
20. Therefore it is not been demonstrated that the First-tier Tribunal materially erred in law in reaching its conclusion that having given such evidence it would not create a risk on return in the light of the factual findings previously made by UT Judge Perkins.
21. The second issue relates to an issue raised in the grounds but which was not dealt with by the Upper Tribunal when granting permission. I therefore heard argument from the advocates on this issue. It relates to the Appellant's sur place activities and in particular her status as a volunteer for the TGTE and her attendance at demonstrations. The original grounds made reference to the grant of permission in UB (Sri Lanka). Since the grounds were filed, the Court of Appeal issued its decision reported at [2017] EWCA Civ 85 on 22 February 2017 which was after the First-tier Tribunal had promulgated its decision. The Court of Appeal in that decision considered the implications of neither the First-tier Tribunal nor the Upper Tribunal being referred to the Home Office policy guidance of 28 August 2015 entitled "Tamil Separatism". The Court considered that there had been an obligation on the Secretary of State to serve that material on the parties and to produce it before the Tribunal.
22. However as set out in the decision of the First-tier Tribunal at paragraph 5, the Appellant's representatives had produced the most recent country information and guidance (CIG) on Sri Lanka entitled "Tamil separatism" dated August 2016. Further reference was made to this document at paragraph 7 of the determination. Whilst it appears to be provided by Counsel for the Appellant, it demonstrates that the judge did have the material available which is different from the factual situation in UB (Sri Lanka).
23. I am further satisfied that the material was before the judge and was considered by him as the judge refers to the content of that guidance at paragraph 27 and at paragraph 47 where there is reference to the possibility of the Appellant and her husband being interviewed on return and is therefore a reference to the material in the CIG and the reference in UB(Sri Lanka) to the letters from the BHC dated 25th of July 2014 which makes reference to returnees and that they "may be questioned on arrival by CID, SIS and TID."
24. The question is whether the judge properly considered that evidence in the light of his findings of fact of the Appellant's sur place activities and the general profile of this Appellant as previously found by UTJ Perkins.
25. Mr Mozhan submits that as the FTTJ accepted that the Appellant attended a demonstration and was a volunteer for the TGTE (a prescribed organisation) she therefore will be at risk on return. He further submitted that the judge had failed to take into account their participation sufficiently. Mr Bates on behalf of the Secretary of State submitted that the findings of fact were open to him on the evidence and that whilst the TGTE remain a proscribed organisation, the judge had properly made a distinction as to the Appellant's position.
26. It is plain from reading the determination that the judge considered the country materials before him and did so in the light of the country guidance decision of GJ and others (see paragraphs 25 - 27 and 43 - 44 and 47). It has not been submitted on behalf of the Appellant that the judge was wrong to reach the conclusion that the material before him was such that it was unnecessary to depart from the country guidance decision. As the case demonstrates, the concern of the government of Sri Lanka now is not past membership or sympathy but whether a person is a destabilising threat in post conflict Sri Lanka (see paragraph 311). It had not been established that previous LTTE connections or sympathies (whether direct or via family links) are perceived by the government authorities as indicating now that an individual poses a destabilising threat in post conflict Sri Lanka (see paragraph 325). Furthermore 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 (see paragraph 356).
27. I accept the submission made by Mr Bates that the onus is on an Appellant to demonstrate that their involvement was of such a profile and nature to equate to a "significant role" such as to make them of interest to the Sri Lankan authorities or that their activities are such that they will be likely to be perceived as being a threat to the integrity of the state. The decision of GJ and others makes reference to the Sri Lankan authorities approach being based on sophisticated intelligence as to the activities in the Diaspora (see paragraph 356(8)) and did not consider that attendance at demonstrations alone would be sufficient to create a real risk or a reasonable degree of likelihood that such a person would attract adverse attention (see paragraph 336 of GJ and others). Furthermore at paragraph 351, the attendance at demonstrations is not of itself evidence to person is a committed Tamil activist seeking to promote Tamil separatism within Sri Lanka and that it will be a question of fact in each case dependent on the Diaspora activities carried out by such an individual.
28. I am satisfied that the judge properly identified the issues in dispute at paragraph 28. It was open to the judge on the evidence before him to conclude that the Appellant and her husband had been involved in low-level and limited sur place activity in the United Kingdom as set out in the findings of fact at paragraph 41 and 45, namely that they had attended at least one demonstration and had acted as volunteer helpers for the TGTE, and that as a consequence were unlikely to be perceived as having a "significant role in relation to post-conflict Tamil separatism within the Diaspora"(see paragraph 356(7a). In reaching his overall findings the judge had regard to the photographs of the Appellant at a demonstration (see paragraph 36). The material in the CIG at 6.9.3 made reference to the ITJP report and that in several cases witnesses mentioned that they or their family members had been questioned about their participation in anti-government protest or war commemoration events abroad. It goes on to state "some reported the Sri Lankan security forces had showed them, or their families, photographs of themselves at these protests. This indicates the Sri Lankan security forces are monitoring these gatherings outside the country."
29. However the judge rejected the Appellant's evidence of their being any current interest in either her or her husband for the reasons set out at paragraph 42 and rejecting the evidence which was said to have emanated from a family member in Sri Lanka.
30. As the CIG and GJ set out, participating in Diaspora activities such as attending demonstrations is not in itself evidence that a person will attract adverse attention. Neither would a person's past history.
31. As to past history, the previous Tribunal had found that the Appellant was a nurse and that in the turmoil of post-war Sri Lanka LTTE activists were brought to the hospital where she had worked. Whilst it was accepted that she was suspected of assisting in the escape of some LTTE personnel, the judge found that this was because she was Tamil (see paragraph 110). The judge also found that she was released from detention because she was not a high-profile activist and was not subject to intense scrutiny. The Tribunal also found that she was able to leave Sri Lanka freely through the airport and that the most likely explanation for leaving the airport without hindrance was the same as the explanation of her being released after interrogation that "she is not a terrorist and no one thinks she is. She is Tamil." (See paragraph 112).
32. The FTT judge considered the issue further and made the following finding of fact that the Appellant "not only exited without hindrance but obtained visas without difficulty or payment of large bribes, as had her husband. I accept that GJ shows there is bribery and corruption but I find that the Appellant has not shown to the lower standard of proof that she was of interest to the authorities and was only able to leave by the use of bribery and corruption. Not only was she able to leave the airport on her own passport, that both herself and her husband obtained visas without claiming problems in doing so. This is not consistent with her being a person of interest to the authorities. It is consistent with UTJ Perkins' findings. I find that there is nothing produced to me that leads me to depart from UTJ Perkins' finding that she was not of interest to the authorities on leaving." (At paragraph 43).
33. It was therefore open to the judge to conclude that she was not a person of adverse interest to the Sri Lanka authorities when she left Sri Lanka with her husband and that neither she nor her husband were likely to be on a "stop list" or "watch list".
34. The letters referred to in UB (Sri Lanka) and which were annexed to the CIG dated 25 July 2014 (see paragraph 30), states that returnees may be questioned on arrival by immigration, CID, SIS and TID and that this was normal practice for returnees to be asked about their activities in the country they were returning from, including whether it involved activity in any Tamil Diaspora groups. The material also refers to their being no known arrests based on membership of one of the proscribed groups.
35. The more recent CIG (which was before the judge) made reference to the government having de-proscribed a number of Tamil groups which indicate that involvement with such organisations is not of itself likely to be seen as a threat to the integrity of the state although it is right to observe that the TGTE still remains a proscribed organisation. As set out earlier the judge found that their low-level sur place activity (which did not include membership of the TGTE) had been "prompted by a desire to bolster their asylum claim. The delay in becoming involved is not consistent with firmly held political opinions, but is consistent with the wish to bolster a claim that has already been rejected once." (See paragraph 41).
36. The judge considered the risk at the airport in the light of his findings of fact and the CIG at paragraph 47 and accepted that the Appellant and her husband may be interviewed on return (although not at the airport) and found that "they can say that they are concerned about the treatment of Tamils and that they have been on demonstrations of the UK and have volunteered if they so wish. Or they can say that they became involved in activities to bolster their claim to remain in the UK as I have found. My decision does not force a lie upon them if questioned." Therefore it was open to the judge to conclude that they would be of no adverse interest to the authorities as it would be become clear that they would not be involved in ay activities in Sri Lanka. Furthermore, even if photographic evidence had been gathered about the Appellant and her husband (from a demonstration) it would show them as having the role the judge found them to have and nothing to indicate to the authorities that they either had or would be perceived to have, any "significant role in any Diaspora activities."
37. Consequently I am satisfied that it was open to the judge to reach the overall conclusion that there was nothing to demonstrate that the Appellant and her husband were those who either had or would be perceived as having a significant role in Diaspora activities in the light of their past history as found by UTJ Perkins and any recent activity and that they had not demonstrated that they would be at a real risk of harm on return. Therefore it has not been demonstrated that the judge's decision is vitiated by an error of law and his decision shall stand.
Decision:
The decision of the First-tier Tribunal did not involve the making of an error on a point of law and the appeal is dismissed.

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. 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: 11th January 2018
Upper Tribunal Judge Reeds