Tribunal decisions

The decision

IAC-AH-CJ-V1
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/12074/2018

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 13 December 2019
On 13 January 2020

Before

UPPER TRIBUNAL JUDGE SHERIDAN

Between

MAAM
(ANONYMITY DIRECTION made)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr P Draycott, Counsel instructed by Woodlands solicitors
For the Respondent: Ms A Everett, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant, who is a citizen of Sri Lanka born on 30 October 1974, is appealing against the decision of Judge of the First-tier Tribunal Shanahan ("the judge") promulgated on 2 May 2019 refusing his protection and human rights claim.
2. The appellant claims to be at risk in Sri Lanka from:
(a) the government, because of (perceived) involvement with and fundraising for the LTTE whilst in the UK;
(b) two LTTE supporters he knew in the UK (whom he refers to as "Ravi" and "Muthu") who have influence in Sri Lanka and blame him for their deportation from the UK; and
(c) his former wife's brother.
The Appellant's Claim
3. The appellant's claim, in summary, is as follows:
(a) He is a Tamil.
(b) He was adopted and raised by a Muslim family.
(c) Prior to coming to the UK as a student, he had not had any involvement with the LTTE or difficulties with the authorities in Sri Lanka.
(d) He entered the UK in 2000 as a student and remained in the UK after 12 December 2001 even though he no longer had leave to do so.
(e) In 2003 he met a group of Sri Lankans who were members of, and raised money for, the LTTE. I will refer to them as "the LTTE group". The LTTE group included amongst them men called Ravi and Muthu.
(f) The LTTE group forced the appellant to assist them and also stole from him.
(g) The appellant did not inform the UK authorities (because he was worried about his immigration status) or his solicitor (because she was Sinhalese and he feared she was involved with the authorities in Sri Lanka).
(h) In 2007 the appellant returned to Sri Lanka, using an emergency travel document. Soon after arriving in Sri Lanka he married (in December 2007) and had a son.
(i) In October 2010 he divorced.
(j) In 2010 he moved to Kandi and in November 2010 he remarried.
(k) His former wife's brother threatened to kill him and he reported this to the police in 2013. He has not heard from his former brother-in-law since 2013.
(l) On 19 April 2016 Ravi and Muthu, accompanied by police officers, came to his house in the middle of the night and took him to an unknown location. He was accused of reporting Ravi and Muthu to the UK authorities resulting in their deportation. He was also accused of being an LTTE informant and of having collected money for the LTTE; and was subject to beatings and torture for a period of four days from police officers and soldiers. Amongst other things he suffered a severe shoulder injury and attempted sexual assault from soldiers. Ravi and Muthu told him that they were LTTE members and had influence with politicians which is how they managed to locate him.
(m) He was taken to hospital as a consequence of injuries suffered at the hands of soldiers and managed to escape. After escaping he lived at his wife's family home (working from home whilst there) until he left Sri Lanka in January 2018 using a false passport.
(n) He now suffers from PTSD and depression, and is at risk of suicide.
4. When refusing the appellant's protection claim the respondent noted that there was not a record of him leaving the UK in 2007 and that he arrived in Dublin in January 2018 with a forged biodate page on his passport.
5. The respondent did not accept any of the appellant's account. Amongst other things it was not accepted that he had been threatened in the UK by the LTTE group, that he had returned to Sri Lanka in 2007 or that he had been detained and subject to abuse and torture in Sri Lanka.
Decision of the First-tier Tribunal
6. The judge did not find the appellant credible.
7. He began his assessment of the appellant's credibility by considering the expert and background evidence that had been adduced.
(a) Firstly, the judge considered the evidence of consultant psychiatrist Dr Singh who prepared a report dated 17 February 2019. At paragraph 30 the judge stated that:
"having considered the expert's report it is clear the appellant suffers from moderate symptoms of PTSD and I take this into account in assessing his evidence as required by the Presidential Guidance".
(b) Secondly, the judge considered the report of Dr Martin, consultant in emergency medicine, dated 21 February 2019 in which the appellant's injuries and scarring were assessed in accordance with the Istanbul Protocol. The judge noted Dr Martin's conclusion that the appellant's injuries were consistent with injuries intentionally and unwillingly caused by a third party and at paragraph 35 stated:

"I have taken account of Dr Martin's report on the basis that the appellant's injuries are consistent with his account as opposed to highly consistent, typical or diagnostic".

(c) Thirdly, the judge referred to a report by Ms Jansz regarding the current circumstances in Sri Lanka. At paragraph 36 the judge stated that this report was considered along with the respondent's Country Policy and Information Note Sri Lanka: Tamil Separatism V5.0 June 2017 ("the 2017 CPIN"), the Freedom from Torture Report dated February 2019, the UNHCR Report dated February 2019 and the Groundviews Sri Lanka Report dated 2018.
8. The judge then considered the appellant's account. His most significant findings regarding the appellant's credibility were the following:
(a) The judge did not find damaging to the appellant's credibility that there was no documentary or photographic evidence to corroborate his involvement with the LTTE group.
(b) The judge noted that according to the appellant's account he did not encounter any adverse interest from the authorities in Sri Lanka arising from his involvement with the LTTE group between 2007 and January 2016 despite the sophisticated intelligence of the authorities and their interest in seeking out those involved, or perceived as being involved, with the LTTE abroad.
(c) The judge stated that if Ravi and Muthu were deported in or around 2007 it is unclear why it took them nine years (2007-2016) to locate the appellant whilst if they were not deported from the UK until later it is unclear why they would blame the appellant given that he left the UK in 2007.
(d) According to the appellant's account, following his escape from hospital in 2016 he lived for over a year at his wife's family home and maintained a business there without encountering any difficulties from the authorities or from Ravi and Muthu. The judge commented that given the sophistication of intelligence services in Sri Lanka (and that Ravi and Muthu had previously been able to find the appellant) the fact that he was able to live unhindered with his wife's family indicates a lack of interest on the part of the authorities. At paragraph 45 the judge stated
"The fact that he was able to continue living there and carrying on with his business demonstrates that he was of no interest to the authorities or anyone else".
(e) With regard to the appellant's claimed fear of his former brother-in-law, the judge noted that, according to the appellant's account, there has been no contact between them since 2013. The judge stated that there was no satisfactory explanation why the appellant's brother-in-law would want to kill the appellant or would have the influence either to locate the appellant or to kill him with impunity.
(f) The judge found that the evidence as to why the appellant was a Tamil was vague and noted that he was raised as a Muslim.
(g) The judge described as vague the appellant's evidence about how he came to learn that the LTTE group was collecting funds for the LTTE. At paragraph 50 the judge stated:
"I have considered his evidence about his involvement with the group in UK and note the vague evidence he provided about how he knew they were LTTE members and that they were collecting for the LTTE. In light of my findings about the other aspects of his claim I am not satisfied that he was involved with such a group or that he would be identified as a member of the LTTE. His evidence is that he was never involved with that group and there is little to show that he would now be suspected of such involvement, particular[ly] given his residence in Sri Lanka during a period when the authorities were and continue to seek out those involved as set out in the background information."
9. The judge concluded that the appellant had not established that he had a well founded fear of persecution from the authorities, Ravi and Mathu, or his brother-in-law.
10. The judge considered the appellant's claim that removing him from the UK would breach articles 3 and 8 of the ECHR because of his mental health (depression and PTSD) and suicide risk. At paragraphs 53-55 the judge considered Dr Singh's report as well as the appellant's GP records and a letter from Let's Talk - Wellbeing concerning the appellant's suicide risk.
11. At paragraph 56 the judge considered the availability of mental health services in Sri Lanka. The judge noted that the country evidence describes facilities in Jaffna but not Kandi, where the appellant's wife resides. The judge found that the appellant would be able to relocate to Jaffna if necessary in order to access such services. At paragraph 60 the judge concluded:
"I have found that the appellant faces no real risk of ill-treatment or in-human on return. I bear in mind that the Article 3 threshold is particularly high as set out in N [2005] UKHL 31 and having regard to the more recent decision in AM (Zimbabwe) [2018] EWCA Civ 64 which considered that whilst N was binding authority up to Supreme Court level, Paposhvili relaxed the test only to a very modest extent. In this appeal the appellant will be returning to his home country where his wife and her parents will be available to support him and ensure he has the appropriate treatment if necessary. While Sri Lanka's mental health facilities are not of the same standard as the UK there are facilities and I have no sufficient evidence before me that the appellant will not be able to obtain fluoxetine or other appropriate medication and access mental health facilities if required. I am satisfied that any risk of suicide can be managed in both the UK and in Sri Lanka."
Grounds of Appeal
12. The first ground of appeal challenges the judge's rejection (in particular at paragraph 50 of the decision - quoted at paragraph 8(g) above) of the appellant's claim to have been forcibly recruited to, and involved with, the LTTE group. The following arguments are made:
(a) The judge failed to recognise that the claims about the LTTE group were the "centrepiece of his appeal such as to require careful consideration in their own right".
(b) Insufficient reasons were given for rejecting this part of the appellant's claim.
(c) The judge improperly relied on other adverse findings (concerning risk from his former brother-in-law and having Tamil ethnicity) that were not indicia of risk from or arising in consequence of his involvement with the LTTE group.
(d) The judge referred to the appellant's evidence as "vague" without considering whether any vagueness was attributable to his vulnerability, in accordance with the Joint Presidential Guidance on vulnerable witnesses, and as explained by Doctor Singh.
(e) The judge failed to engage with the substance of the report by Dr Jansz and in particular failed to recognise that this report, as well as the objective evidence more generally, is consistent with the appellant's account.
(f) The judge erred by failing to engage with the fact that, as was found in GJ and Others (Post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319, the appellant would be interviewed on return and he cannot be expected to lie either about his involvement with the LTTE group or about having used false documents to leave Sri Lanka. It is submitted that for either or both of these reasons he would be at risk of detention and consequent ill-treatment.
(g) The approach taken by the judge was inconsistent with SB (Sri Lanka) v SSHD [2019] EWCA Civ 160 CA, where at paragraphs 41-44 it is stated:
"41. The decision of the FtT turns upon the credibility of the appellant's evidence. The credibility of an appellant often lies at the centre of these cases. Evidence is often indirect. So, in this case there was no direct evidence of the risk posed to the appellant if returned, for example, from the Sri Lankan authorities confirming or denying that the appellant was of interest to them and, if so, for what reason. The judge did not have the stop list referred to in the Country Guidance. He did not have evidence from those supposedly detaining Major Alwis confirming that he was in fact detained, and for what, and whether he had named the appellant as potentially complicit in anti-government activities. Evidence before a Tribunal will therefore frequently be circumstantial and based upon the credibility of an appellant's account.
42. Some of the indirect evidence is recognised (in Country Guidance) as a fair proxy measurement of risk, such as whether a person has been able to pass unhindered through an airport at a point in time when he or she should have been at risk, or whether the person has engaged in activities known to place that person in present jeopardy of arrest. But other pieces of evidence are remote from any indicia of, or proxy for, risk and concern only whether the individual is telling the truth which itself is then used in deciding whether the individual's account of the risk posed by return, is credible and truthful.
43. In this case certain pieces of evidence fell within the Country Guidance (especially paragraph 7(a) and (d)) as being pertinent to the assessment of risk. But much of the evidence was remote from the issue of risk and went only to general credibility. Such background material can be relevant to the analysis but it needs to be borne in mind that per se it indicates little about risk and, as the judge properly recognised, even genuine asylum seekers might exaggerate or fabricate evidence in order to reduce the risk their case is wrongly rejected.
44. All of this explains why first instance judges need carefully to assess credibility and why appellate courts will accord due deference to the fact finder who is experienced in sifting evidence of this sort. But it also explains why an appellate court needs to be able to satisfy itself that the fact finder has at least identified the most relevant pieces of evidence and given sufficient reasons (which might be quite concise) for accepting or rejecting it."
13. The second ground of appeal submits that the judge erred by failing to make a clear finding (or to formally reject) the appellant's account of detention and torture and by failing to engage with contemporaneous medical evidence that corroborated the appellant's account.
14. The third ground of appeal submits that the assessment of article 3 and article 8 ECHR in relation to the appellant's medical condition was deficient because the judge:
(a) did not treat the medical report as independent evidence and was irrational in questioning whether the appellant was feigning his condition when he had accepted the appellant's vulnerability;
(b) failed to consider the evidence of lack of available psychiatric treatment in the appellant's home area; and
(c) failed to consider the risk of ostracism from the appellant's wife's family arising from the stigma associated mental health problems.
Submissions
15. Building on the second ground of appeal, Mr Draycott submitted that as the judge had not rejected the central part of the appellant's account about having been tortured and detained in 2016 there was no basis upon which to reject the claim as if the appellant had been tortured and detained as claimed it is clear he would be at risk on return.
16. He also submitted that the judge had "fastened onto" the appellant being able to remain in Sri Lanka for almost two years following his escape from detention but that this should not have been treated as determinative of the appeal.
17. Mr Draycott was critical of paragraph 50 of the decision, arguing that the use of the term "vague" was inappropriate given the Judicial Presidential Guidance concerning vulnerable witnesses. He argued that the judge failed to address whether the vagueness was attributable to the appellant's PTSD in light of the psychiatric evidence of Dr Singh.
18. Mr Draycott also argued that the decision was deficient for failing to engage adequately, or at all, with the expert evidence from Ms Jansz which was consistent with the appellant's account.
19. He also highlighted paragraphs 42-44 of SB (Sri Lanka) (cited above) arguing that the judge's approach was inconsistent with the guidance given by the Court of Appeal in that case on how to deal with issues of credibility that are peripheral and remote from the issue of risk. He argued that the credibility finding in respect of the appellant being able to live with his wife's family for over a year was remote from the issue of the membership of the LTTE group.
20. Mr Draycott also submitted that the judge had failed to address the risk the appellant would face on return as a consequence of having used a false passport to illegally leave Sri Lanka and that would arise from being questioned at the airport where he could not be expected to deny his role within the LTTE in the UK.
21. Ms Everett argued that, reading the decision as a whole, it is clear that the judge has looked holistically at the evidence. She noted that the judge had given clear self-directions that accurately stated the law, including the necessity to have regard to the Presidential Guidance in relation to vulnerable witnesses. She argued that the findings in the decision do not indicate that the judge failed to follow the self-direction.
22. She argued that Mr Draycott had taken paragraph 50 of the decision out of context and that it needs to be read alongside and as part of the overall credibility findings.
23. Ms Everett submitted that the judge was entitled to attach significant weight to the implausibility of the appellant's claim to have resided with his wife's parents for over a year after escaping from the authorities and to have carried on a business, without encountering difficulties. She argued that there was nothing in the decision to say that this was treated as determinative but in any event the judge was entitled to give it very significant weight. She argued that the appellant appears to be trying to have it both ways: either the authorities wanted to find him after his escape from detention, or they did not; and if they were interested in him it is not plausible that they would not have found him at the home of his wife's family.
24. As to the argument that the judge failed to have regard to the evidence of Ms Jansz, Ms Everett's submission was that the judge did not reject the appellant's account of being press-ganged into the LTTE group on the basis of implausibility, but rather rejected it because his credibility as a whole was not accepted. The fact that the country expert considered that the appellant's account was consistent with objective evidence did not undermine the reasoning of the judge.
25. Ms Everett did not accept that the objective evidence supported that a returnee would be at risk merely because they had left Sri Lanka unlawfully. She submitted that the appellant would be able to tell the truth on return without fear because the truth, as found by the judge, was that he had not been involved with the LTTE in any way.
Discussion
Ground 1: Rejecting the appellant's account of having been involved with the LTTE group in the UK was irrational, not supported by adequate (or proper) reasons, ignored his vulnerability, was inconsistent with objective and expert evidence, and was inconsistent with SB.
26. The first ground of appeal advances numerous arguments which challenge the judge's finding at paragraph 50 of the decision that the appellant was not involved with the LTTE group as he claimed. For the reasons set out below, I am satisfied that the judge's findings at paragraph 50 were reasonably open to her for the reasons she gave; that the judge's reasoning was consistent with the evidence; and that proper regard was had to the appellant's vulnerability.

27. It is plain from reading paragraph 7 of the decision (where the judge accurately set out, in detail, the appellant's account of being forcibly involved with the LTTE group) together with paragraphs 50 (where the judge did not accept the appellant was telling the truth about his involvement with the group) that the judge has engaged with, and appreciated the materiality to the appeal of, this aspect of the appellant's account. The contention that the judge failed to consider it, or recognise its importance, therefore lacks any basis.

28. According to the appellant's account, the only reason he was detained in 2016 was because of his involvement with the LTTE group between 2003 and 2007 and because former members of the LTTE group (Ravi and Mathu) were seeking him. Clearly, if he had not had any involvement with the LTTE group there would have been no reason for the authorities (or for Ravi and Mathu) to have had an interest in him in 2016. Therefore, the appellant's claim to have been involved with the LTTE group is inextricably linked to his claim to have been detained and tortured in Sri Lanka in 2016. In the absence of the former there would simply be no reason for the latter to have occurred.

29. Accordingly, the detention and torture in 2016 is not peripheral to or remote from the core issue of whether the appellant was being truthful about the LTTE group; on the contrary, it is central to, and goes to the heart of, that question. If the account of detention and torture was not plausible then it was entirely reasonable for the judge to infer that the appellant was not being truthful about the LTTE group, even if it is plausible, in light of the objective evidence, that such a group existed.

30. The judge has given two reasons why the appellant's claim to have been detained and tortured in 2016 is not plausible. The first is that, by his own account, between 2007 and 2016 the appellant lived in Sri Lanka without any interest from the authorities or anyone else despite the objective evidence (as confirmed in GJ) showing that the authorities had an interest in apprehending, or at least questioning, people who had been involved with the LTTE outside of Sri Lanka. Given the sophistication of the Sri Lanka intelligence services (as is described in GJ) the judge found it implausible that the appellant, if he were telling the truth, would attract no interest for almost a decade.

31. Secondly, the appellant's account was that after his escape from detention he was able to live (and operate a business) from his wife's family home for over a year without the authorities apprehending him. Given the ease with which he could be located (as he was at his wife's family home) the judge found it implausible that, if the appellant's account of escaping detention were true, he would not have been located by the authorities. The judge found the appellant's explanation that the authorities (and Ravi and Muthu) were not interested in his wife to be irrelevant, as the issue was whether the authorities could locate him at his wife's family home, not whether they were interested in his wife.

32. These are cogent and clear reasons for rejecting the appellant's account of involvement with the LTTE group resulting in his detention and torture; and therefore I do not accept that the judge gave insufficient or inadequate reasons; or that the judge has relied on evidence that is remote from any indicia of risk.

33. Nor is there merit to the argument that the judge failed to take into account the appellant's vulnerability. There is nothing in the psychiatric evidence which supports the view that the appellant, because of his mental health, would be vague about his involvement with the LTTE group. The judge was entitled to have regard to the vagueness of the appellant's evidence. In any event, the judge gave cogent reasons (summarised above in paragraph 30 - 31) for rejecting the appellant's account as implausible that did not rely on a finding that the appellant had been vague.

34. The appellant's reliance on SB is, in my view, misconceived. In SB, the Court of Appeal found that the Tribunal had, when evaluating credibility, inter alia, failed to address relevant matters and reached conclusions that were illogical and inconsistent. No such criticism can be made of the judge in this case. The judge has given cogent reasons why the appellant's case was not accepted. There are no material parts of the evidence that have been omitted from consideration and there is no inconsistency or failure of logic in the evaluation of the evidence.

35. It is correct, as submitted by Mr Draycott, that the judge has not engaged in any detail with the evidence of Ms Jansz. However, as submitted by Ms Everett, there was no need for her to do so. The appellant's account of involvement with the LTTE group was not rejected because the existence of such a group (or his being coerced to assist such a group) was found to be implausible, but rather because the appellant's claim about what happened to him in Sri Lanka as a consequence of his involvement with the LTTE group was rejected as implausible. The evidence of Ms Jansz on this point was not disputed, and therefore no error arises from failing to set it out or confirm in terms that it was not disputed.

36. The appellant's contention that the judge failed to address the risk arising from giving a truthful account at the airport on return can be dealt with briefly for the reasons given by Ms Everett: if, as the judge found, the appellant was not a member of the LTTE group than he would not need to mention this when giving a truthful explanation to the authorities in Sri Lanka. He would merely be a failed asylum seeker. The extant country guidance caselaw GK does not support the contention that a failed Tamil asylum seeker would be at risk on return solely on that basis, and there was no evidence before the First-Tier Tribunal that could, on any legitimate view, justify a departure from country guidance case law on this.
Ground 2: The judge failed to make any, or adequate, finding about the detention and torture of the appellant
37. Mr Draycott is correct that the judge did not clearly state in terms that the appellant's account of being detained and tortured was rejected. However, it is plain from reading the decision as a whole that the judge did not accept that the appellant had been detained and tortured. Firstly, the only reason the appellant gave for the detention and torture was his involvement with the LTTE group and the judge explicitly at paragraph 50 found that he had not been involved as claimed. Secondly, the judge gave reasons (as summarised above) why she has not find the appellant's claim to be of interest to the authorities plausible. Thirdly the judge made a clear finding at paragraph 45 that that the appellant's ability to live with his wife's family meant that the authorities had no interest in him.

38. The appellant adduced a document from Sri Lanka titled "medical certificate" which states that he suffered an injury to his left shoulder and right hand and leg because of an assault. The appellant submits that the judge erred by failing to make reference to this document. I disagree. The Sri Lankan "medical certificate" was of little, if any, relevance because it does not indicate (or express a view on) the context in which the appellant was assaulted. There is nothing, for example, in the medical certificate which suggests the assault was the result of torture as opposed to a fight or street crime. In considering the appellant's injuries, the significant evidence was that of Dr Martin, who prepared a report in accordance with the Istanbul protocol. The judge has given careful consideration to Dr Martin's report and therefore I find unpersuasive the argument that there has been a failure to consider material evidence about the appellant's injuries.

Ground 3: Article 3 and article 8 ECHR and the appellant's medical condition
39. There is a very high threshold to be met where it is argued that because of non-availability of medical treatment or a heightened risk of suicide removal from the UK would breach article 3 or article 8 ECHR. That threshold is set out in N v Secretary of State for the Home Department [2005] UKHL 31 and is confirmed in the context of suicide in RA (Sri Lanka) v Secretary of State for the Home Department [2008] EWCA Civ 1210. The evidence of Dr Singh that the appellant suffers from PTSD and that there is a risk he would experience recurrent suicidal ideation if removed from the UK falls a long way short of the type of evidence that would be needed to establish that removal from the UK would breach article 3 or article 8 in a context where there is no risk from the authorities in the country of return.

40. The grounds argue that the judge failed to treat Dr Singh's evidence as independent. This argument is not tenable because the evidence of Dr Singh taken at its highest does not come even close to the threshold in N and RA.

41. The submission that the judge failed to consider the lack of treatment in the appellant's home area is unpersuasive because the judge explicitly addressed this, finding that there was no evidence that the appellant could not obtain fluoxetine, which is the medication he currently takes, or that he could not in any event relocate to Jaffna where treatment would be available. It is notable that, according to the appellant's own account, when he returned to Sri Lanka in 2007 he relocated to a different part of the country (where he had his first marriage) and there was no evidence before the First-tier Tribunal to support a contention that he could not relocate again.

42. The appellant argues that the judge failed to consider that he might be ostracised by his wife's family. However, given the nature and extent of his mental health problems as described by Dr Singh, there would be no infringement of article 3 (or article 8) on medical grounds even in the absence of any family or friends to provide assistance. As explained above, this is not a case that, based on the medical evidence that was before the judge, could, on any legitimate view, succeed under article 3 (or article 8) on medical grounds.
Notice of Decision

The appeal is dismissed. The decision of the First-tier Tribunal does not contain a material error of law and stands.

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.

Signed

Upper Tribunal Judge Sheridan
Dated: 6 January 2019