Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/06298/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 11 April 2017
On 20 April 2017

Before
UPPER TRIBUNAL JUDGE FINCH

Between
M t M a
(anonymity direction MADE)
Appellant
And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms S. Pascoe of counsel
For the Respondent: Ms. A. Fijiwala, Home Office Presenting Officer

DECISION AND REASONS

BACKGROUND TO THE APPEAL
1. The Appellant, who was born on 11 July 1980, is a national of Sri Lanka. On 15 December 2008 the Appellant was granted a student visa that was valid until 15 December 2012. His leave was subsequently extended until 29 December 2014. But on 8 September 2014 his leave was curtailed to expire on 10 November 2014. On that same day he applied for leave to remain as a Tier 2 General Migrant but his application was rejected on 15 December 2014. He renewed his application on 6 January 2015 but his application was refused on 19 March 2015.
2. The Appellant applied for asylum on 10 December 2015. The Respondent refused his application on 7 June 2016. But when doing so, she accepted that he had been detained by the Sri Lankan authorities between 5 and 14 November 2011 and between 18 November 2011 and 20 December 2011. However, she did not accept that the Sri Lankan authorities had continued to have any interest in him.
3. The Appellant appealed against this decision and his appeal was heard by First-tier Tribunal Judge Spencer on 31 October 2016. He dismissed the appeal in a decision promulgated on 8 November 2016. The Appellant sought permission to appeal but his application was not admitted by First-tier Tribunal Judge Adio on 7 December 2016, as it was out of time and no explanation had been given for the delay.
4. Upper Tribunal Judge Coker did grant permission to appeal on 9 February 2017 but on limited grounds even though the application was again out of time. The Respondent filed a Rule 24 response on 22 February 2017.
ERROR OF LAW HEARING
5. Counsel for the Appellant noted that those instructing her had drafted the grounds of appeal and did not attempt to rely on them in any detail. Instead, she relied on a ground, which was largely based on the grant of leave by Upper Tribunal Judge Coker. In particular, she submitted that the First-tier Tribunal Judge had erred in law by conflating the findings about the existence of an arrest warrant and the Section 8 credibility findings. She also submitted that the First-tier Tribunal Judge had placed too much emphasis on the findings relating to the existence of an arrest warrant and had not taken into account the many positive findings about the credibility of other aspects of the Appellant’s account.
6. The Home Office Presenting Officer replied and noted that Upper Tribunal Judge Coker had not made a decision to extend time after finding that the application for permission was out of time and that no explanation had been given as to why the grounds could not have been submitted within time. She also submitted that the ground on which the Appellant now tried to rely was not one which contained in the grounds of appeal. She also noted that the First-tier Tribunal Judge did not just concentrate on the issue relating to the arrest warrant through the prism of Section 8 but considered all the evidence in significant detail in paragraphs 33 to 36, 42 and 46 of his decision and reasons. Counsel for the Appellant then replied and submitted that the First-tier Tribunal judge had placed too much weight on what was said about one individual document and had conflated the timing of the application for asylum with the existence of an arrest warrant.
DECISION
7. Upper Tribunal Judge Coker did not formally extend time when granting permission to appeal but I find that she did implicitly do so in so far as she gave detailed consideration to the grounds that had been submitted before only giving permission on one very narrow ground. The Home Office Presenting Officer did not ask me to take any action in relation to the extension of time and I find that it was not necessary to do so, as I subsequently found that there was no merit in the Appellant’s grounds.
8. The parties accepted that the First-tier Tribunal Judge was bound by the country guidance provided in GJ & Others (post civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) and the Appellant’s case was based on the fact that sub-paragraph 7(d) of the head note to that case states that an individual may be at risk on return as:
“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 ‘stop’ list will be stopped at the airport and handed over to the appropriate Sri Lankan authorities, in pursuance of such order or warrant”.
9. Paragraph (4) of the head note also states that “if a person is detained by the Sri Lankan security services there remains a real risk of ill-treatment of harm requiring international protection”.
10. Paragraph (9) also states that:
“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”.
11. It was accepted by the Respondent and the First-tier Tribunal Judge that the Appellant had been detained and tortured by the Sri Lankan authorities on two occasions in 2011. But the test of international protection is a prospective one and, as the First-tier Tribunal Judge, noted in paragraph 30 of his decision and reasons, the issue between the parties was that the Respondent had not accepted that the Sri Lankan authorities had shown a continued interest in the Appellant.
12. In paragraph 31 of his decision and reasons the First-tier Tribunal Judge correctly referred himself to the country guidance case of GJ and in paragraph 33 he noted the centrality of the claim by the Appellant that an arrest warrant had been issued in his name, as this would potentially place him on “the stop list”.
13. In paragraph 34, he explores the evidence relating to the existence of an arrest warrant and counsel for the Appellant did not submit that there was anything unlawful about the methodology he adopted. It was the case that the Appellant never mentioned an arrest warrant at his substantive interview on 24 March 2016. In contrast, he did mention the Sri Lankan authorities having a search warrant in answer to questions 107, 108, 110 and 116. The Appellant asserted that there was an error in the record of the interview and that the answer to question 107 should have referred to an arrest warrant and not a search warrant but I note that the word “search” was also used in subsequent answers. Furthermore, in paragraph 11 of his statement, dated 20 October 2016, the Appellant said that “the authorities had formally detained me and I know that I will be arrested and detained on return to Sri Lanka where I will be ill treated again”. He did not correct the error which he later said had occurred in the record of his substantive asylum interview and assert that an arrest warrant had been issued in his name.
14. When considering whether, nevertheless, an arrest warrant may have been issued, the First-tier Tribunal Judge did also consider the Appellant’s medical evidence in paragraph 36 of his decision and reasons. In his report, dated 4 October 2016, Dr. Lawrence, a consultant psychiatrist, noted that during his examination of the Appellant he displayed the characteristic physiological symptoms associated with post traumatic stress disorder which are extremely difficult to simulate. But it is also clear from the section of the Report entitled “Mental State Examination” that the Appellant was able to engage with the interview, was generally clear about dates and was not thought disordered. Dr. Lawrence found that he was fit to give evidence but noted that cross-examination may re-stimulate his trauma and his answers may be slow. In her letter, dated 12 October 2016, Dr. Ostler attributes the Appellant’s mental ill health to his detention and torture. She did not mention any fear of return to Sri Lanka or any inability to provide cogent instructions.
15. At paragraph 42 of his decision and reasons, the First-tier Tribunal Judge also considered the letter, dated 14 October 2014, from the Appellant’s father. It stated that the Sri Lankan authorities were looking for him and also that he was told on 23 September 2016 that there was an arrest warrant for the Appellant. This is said to have been emailed to the Appellant and pre-dates his own witness statement. The First-tier Tribunal Judge also explained his doubts about its provenance.
16. In Ground 8 of the grounds of appeal it was also submitted that First-tier Tribunal Judge Spencer made a mistake of fact in relation to the evidence given by the Appellant’s wife. In paragraph 43 of his decision and reasons, the First-tier Tribunal Judge noted that her oral evidence contradicted her witness statement. It is clear from her witness statement, dated 20 October 2016, that she did not mention any arrest warrant being issued in relation to her husband or the authorities attending her parent’s house to search for the Appellant. Therefore, the First-tier Tribunal Judge was entitled to find that the totality of her evidence was contradictory when she said in oral evidence that there were two arrest warrants in existence. (The Home Office Presenting Officer provided the Respondent’s record of the appeal hearing, as the one on the Tribunal file was illegible and the Appellant did not have any record on her file.) Furthermore, there was nothing unreasonable in the manner in which the First-tier Judge considered that discrepancy between her written and oral evidence. He was entitled to note that her witness statement had included other items of hearsay evidence. Furthermore, noting this discrepancy did not amount to requiring corroborative evidence. The First-tier Tribunal Judge’s approach adopted the principles contained in Karanakaran v Secretary of State for the Home Department [2000] EWCA Civ 11 and considered and gave weight to individual pieces of evidence before considering the evidence in the round.
17. The First-tier Tribunal Judge did not make any findings in relation to Section 8 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 until paragraph 46 of his decision and reasons. Therefore, there was no merit in the submission that he had conflated Section 8 and the issue of the existence of the arrest warrant. He properly considered the arrest warrant in the round in the light of all available evidence.
18. His account of past persecution had been found to be credible by both the Respondent and the First-tier Tribunal Judge in the light of the objective evidence. The question of future persecution was a discrete issue and counsel for the Appellant did not direct me to any objective evidence which the First-tier Tribunal Judge could have considered in relation to this issue. She referred to the medical evidence but did not explain how this assisted the Appellant.
19. For these reasons I am satisfied that First-tier Tribunal Judge Spencer did not make material errors of law in his decision and reasons.

DECISION
(1) The Appellant’s appeal is dismissed.
(2) The decision by First-tier Tribunal Judge Spencer is upheld.

Nadine Finch

Signed Date 11 April 2017

Upper Tribunal Judge Finch