Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-000361

First-tier Tribunal No: PA/51088/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:

20th May 2025

Before

UPPER TRIBUNAL JUDGE FRANCES
DEPUTY UPPER TRIBUNAL JUDGE SEELHOFF

Between

Secretary of State for the Home Department
Appellant
and

A G
(ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Mrs Nolan, Senior Home Office Presenting Officer
For the Respondent: Mr Cox, Counsel instructed by Kanaga Solicitors

Heard at Field House on 28 April 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

1. This is an appeal by the Secretary of State against a decision of a First-tier Tribunal Judge (“the Judge”) dated 20th December 2023 allowing the Respondent’s appeal against a decision to refuse him Refugee Status. We refer to the parties as they were before us.

2. In allowing the appeal the Judge held that the Appellant had not shown serious grounds for concluding that the Respondent was guilty of the war crime of conscription or enlistment of children under the age of 15 or using them to participate actively in hostilities through his participation in the Tamils Rehabilitation Organisation (‘TRO’).

3. Permission to appeal was granted on the 1st of February 2024 on the single ground of appeal which was that the Judge had erred in failing to attach sufficient weight to a decision of the French “cour nationale du droit d’asile” (“The French Court”) that the Respondent ought to be excluded from a grant of asylum under Article 1F of the Refugee Convention due to his alleged involvement in war crimes in this case the alleged recruitment of children.

4. There was no challenge to the Judge’s substantive findings that the Respondent is at risk on return to Sri Lanka for a convention reason and his removal would breach Article 3 of the European Convention of Human Rights (ECHR).

The Hearing

5. At the hearing we heard submissions from Mrs Nolan who essentially argued that pursuant to the principle of mutual trust as recognised in AH Algeria [2013] UKUT 00382 the Judge ought to have followed the French Court and that inadequate reasons were given by the Judge for not doing so, or that insufficient weight was given to that decision. It was argued that in effect the Judge’s findings on the French decision were contained in a single paragraph [113] and in that paragraph the Judge was wrong to note that he did not know what all the information was before the French Court which further undermines his reasoning on the point.

6. Mr Cox responded arguing that:

i. It was wrong to characterise the Judge as only considering the French Court decision in that single paragraph as there was extensive consideration of the issues earlier in the decision.

ii. The structure of the decision followed the way the Appellant had pleaded her case in the original decision and the subsequent review.

iii. The Judge had dealt with the issues raised in the decision including alleged discrepancies between the accounts given to the Home Office and the French authorities.

iv. Even though the evidence before the French Court was “listed” on the first page of the decision, that list was demonstrably incomplete as evidence that did not appear on that list was referenced in the body of the decision and that having the list was not the same as the Judge actually having access to the evidence that was before the French Court.

v. When the Judge said he did not have all the evidence that was before the French Court at [113] he was referring primarily to country background evidence in accordance with how the appeal was presented and he was correct to say this.

vi. AH Algeria [2013] UKUT 00382 was not cited or relied on before the First-tier Tribunal.

7. Mrs Nolan replied accepting that AH Algeria had not been cited before the Judge but that he was clearly aware of the principle given the way he had addressed his findings at [113].

8. We indicated that we were not satisfied that the Judge had made an error of law but that we reserved the formal decision which we now give.

Error of Law

9. Having reviewed the arguments we find that the Judge structured his reasoning and analysis in accordance with how the issues were raised in the Appellant’s review of her own decision and focused initially on the discussions of the background evidence. That included extensive discussions of evidence which contradicted the findings of the French Court. The Judge assessed that evidence to see if it supported the Appellant’s case that the Respondent, whilst working for the TRO, supplied details which the LTTE used to recruit child soldiers. The ultimate question for the Judge was whether he was satisfied the Appellant had shown that Article 1F applied. The Judge considered all the evidence in the round and concluded she had not.

10. The Judge’s reasoning in that respect included detailed analysis of the evidence relied on by the French Court including an interview record which was central to the decision of the French Court. There was no challenge to the Judge’s findings in respect of that interview record or to his extensive analysis as to how that fitted with the evidence as a whole [93-111]. The Judge found at [111] that:

“I am not satisfied even on the evidence of his own admissions, accurate or otherwise, to the French that this goes far enough to show that the [Respondent] was effectively collecting information which he knew was going to be misused, and misused specifically for the recruitment of child soldiers under the age of 15. Nor am I satisfied that there are serious reasons for considering on all the evidence adduced that the [Respondent] has been shown to have knowingly materially assisted in the recruitment of child soldiers under the age of 15, by the work done by the T.R.O. in gathering information, possibly subsequently used by the L.T.T.E. for that purpose.” (edited to reflect identity of the parties before us).

11. Turning to [113] which is the focus of the challenge, that paragraph is not to be read in isolation but must be read in the context of the extensive preceding analysis. It is clear that the Judge applied the principles of AH Algeria [2013] UKUT 00382 even though he was not referred to it. Mrs Nolan even acknowledged in her reply that the Judge recognised that he was departing from the French decision. The Judge indicated that he would normally have followed or attached significant weight to the French Court decision but did not do so for all the reasons which preceded that paragraph. Those reasons would have included the issues with the French interview record, the lack of background evidence consistent with the conclusions reached by the French Court and the fact that the Respondent’s alleged admissions in the French interview did not amount to an admission that he had engaged in behaviour to which Article 1F could properly be applied.

12. The Appellant’s position before us was not that the Judge was bound to follow the French Court decision, but that he had not given adequate reasons for reaching a different decision or that he failed to attach weight to the decision. We find that the Judge did give adequate reasons for not following that decision, and for the weight he attached to it and that accordingly there is no error of law in the decision under appeal.

13. The decision of the First-tier Tribunal dated the 20th December 2023 does not contain a material error of law. The decision of the First-tier Tribunal will stand.

Notice of Decision

Appeal dismissed

A. Seelhoff

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

15 May 2025