England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
IMMIGRATION APPEAL TRIBUNAL

		Royal Courts of Justice Strand London, WC2
		28 July 2004

1. LORD JUSTICE SEDLEY: The appellant is a Sri Lankan Tamil, now 31, whose application was turned down by the Secretary of State but allowed by the adjudicator, Mr B H Forster, on 15 May 2003. His decision was overset by the Immigration Appeal Tribunal (Mr Richard Chalkley and Mr N Kumar) on 29 December 2003. They refused permission to appeal to this court, but Lord Justice Maurice Kay granted it.
2. In the interim, on 17 March 2003, this court gave its decision in Subesh [2004] EWCA Civ 56, establishing, or perhaps more precisely reasserting (see Indrakumar), that the Immigration Appeal Tribunal should not interfere with an adjudicator's decision unless it concludes that it is not merely able but is required to adopt a different view. Subesh also endorsed the Immigration Appeal Tribunal's approach in Jeyachandran [2002] UKIAT 01689 that the situation in Sri Lanka had - at least at that point in time - reached a sufficient point of stability for returned Tamils to face a risk of persecution or inhuman treatment only in cases which were, on their facts, exceptional and perhaps specifically where it was possible or probable that they were still wanted.
3. Little, if anything, in the present appeal turns upon the difficulties of applying these principles. The problem, as it turns out, is to identify the material facts to which they are to be applied.
4. The appellant's account was accepted as truthful by the adjudicator. He had been reluctantly made to lend support to the LTTE (the Tamil Tigers), but had managed to distance himself from them. However the family was repeatedly intimidated by the Sri Lankan Army. His case succeeded because his two escapes from army custody, during which he had been tortured, had apparently been engineered by a political party, the Eelam People's Democratic Party or EPDP, Eelam being the name for the desired independent Tamil state. This is how it was described by the adjudicator in his findings:

"12 The appellant said that whenever the army searched for his father, the whole family would hide in the jungle. One day the army conducted a round-up and he was taken in the truck to Vavuniya camp, on 5 July 2000. He went blank and when he was interrogated about the whereabouts of his father he said he did not know. He was beaten and kicked with boots over a period of an hour and they asked the same question again and again and asked him if he helped the LTTE. He said he did not and when asked if any of his family were in the LTTE he was put in a dark room. The food was not palatable but when he did not eat they beat him. A group called EPRLF conducted the enquiries, accusing him of helping the LTTE and beating him with the butt of a gun. He had aches and pains over all his body and a gun was placed in his mouth. He was terrified. He was put in a dark room but given food and on 21 July 2000 was asked after by an important EPDP member of the camp. He insisted he had no involvement with the LTTE and did not know the whereabouts of his father and was then taken outside the camp and left on the road. He was later told that a bribe had been paid through his uncle. He then lived with his family in Parayanalangkulam looking after the cultivation.

13 On 21 September 2001 there was another army round-up and he was again arrested and taken to Vavuniya camp and asked what he did after being released. He said he simply looked after his cultivation but he was accused of escaping from custody and beaten and kicked. He was put in a dark room with hands and legs tied and these were only removed when he ate and he was threatened with being shot if he attempted to escape. When the EPDP came he told them that they were responsible for his release and he was again taken out of the camp but told that they could not prevent him from being re-arrested and he was advised to move. After returning home he returned to the jungle whenever the army came round."

This passage demonstrates the besetting problem of this appeal. Neither here nor anywhere else, either in the adjudicator's or in the Immigration Appeal Tribunal's decision, is any explicit attention given to who the EPDP are or who they represent.

5. The adjudicator concluded on this limb of the case:

"48 I therefore find that he was arrested and detained by the authorities on the basis of his actual and perceived support for the LTTE and the involvement of other members of his family. I find that he was ill-treated as he described and I find that the treatment he underwent on that occasion was sufficiently serious as to amount to torture within the meaning of the Convention. I find that he was then released after payment of a bribe and I am certainly not in agreement with the respondent (refusal letter para. 4) that this was unlikely.

49 I also find that he was arrested on a second occasion and was again ill-treated. I then find that, in the period between his release and the incident in December 2001 involving the arrest of his brother, he was able to avoid coming to the attention of the army by hiding in the jungle and that arrangements were made around Christmas to contact an agent and make the necessary preparations for leaving the country. As far as the comment in para. 16 of the Refusal Letter (appellant would not have been able to leave Sri Lanka if the authorities were interested in him) is concerned, the evidence was of his having left using a 'genuine' passport bearing his photograph but a false name. In that event, he would not have triggered any recorded history of arrest, etc."

6. The adjudicator then turned to the key question of the risk, if any, facing the appellant should he be returned. He referred to the "mass of objective evidence" that he had had, and reminded himself of what Lord Justice Peter Gibson had said in Selvaratnam endorsing the Immigration Appeal Tribunal's approach in Jeyachandran:

"'It is only in exceptional cases that a person returned to Sri Lanka will attract the attention of the authorities there and ..... such persons are likely to be limited to those who are wanted persons. The question is whether the case of the applicant is an exceptional case as a person likely to be of interest to the Sri Lankan authorities and so likely to be detained, it being conceded that once he is detained, there is a substantial risk of persecution.'"

On this footing the adjudicator concluded:

"53 In the light of the developments which have taken place in Sri Lanka over the past year or so and the continuing negotiations between the LTTE and the government, it is clear that the situation has been improving. Although the talks broke down during April 2003 in relation to a dispute about representation at international conferences, in a press release as recent as 21 April 2003, the LTTE, whilst complaining fairly bitterly about their treatment in some regards, nevertheless said that they 'wish to reiterate our commitment to seek a negotiated political solution to the ethnic question'. It is therefore clear to me that it remains the position that it is necessary for a claimant such as the appellant to show that his case is so exceptional that the attention of the authorities would be attracted.

54 It is clear from the objective evidence that records are kept and that a returning failed asylum seeker would be identified on the basis of his previous history. I find that, in the light of this appellant's previous involvement with the authorities on account of his LTTE activities and those of his father and other relatives, that it is likely that he would be detained and I find that there would in that event be a serious risk of his receiving treatment which would amount to persecution or treatment which was inhuman and degrading within the meaning of the European Convention."

He accordingly allowed both the asylum appeal and the human rights appeal.

7. The Immigration Appeal Tribunal, on appeal, commented on the paucity of analysis by the adjudicator of the objective material, limited as it was to what he said in paragraph 53. They turned to the newly published CIPU Report of October 2003 and, over a page of so, summarised its positive account of the peace process. They then said:

"22 On the occasion of the respondent's second arrest he told the EPDP that they had been responsible for his release from detention on the

first occasion. He was again taken out of the camp and released.

23 We believe that it should have been clear to the Adjudicator that this respondent was of no continuing interest to the Sri Lankan authorities. Despite being aware that he had been released by the EPDP after his first detention, the respondent was released from detention again after his second arrest.

24 We do not believe that were the respondent to be returned to Sri Lanka, he will be at any risk of being detained. We do not believe that if the Sri Lankan authorities did have a continuing interest in the respondent's father and a belief that this respondent might know the whereabouts of his father, that they would have permitted his release, even on payment of a bribe, the first time they detained him. Neither of the detentions were as a result of the authorities specifically targeting the respondent; he was detained as part of a roundup.

25 We have concluded that this respondent is not likely to be of any interest to the authorities on his return and that to return him will not cause a breach of either Convention.

26 We find that the Adjudicator was wrong to find that this respondent was one of the exceptional cases referred to by Peter Gibson LJ in the decision of the Court of Appeal in Selvaratnam. For all these reasons, we allow the Secretary of State's appeal."

This, too, apart from the recital of facts found by the adjudicator, is the only point at which the Immigration Appeal Tribunal refers to the EPDP. For the rest, they do not found their decision on any disagreement with the adjudicator about the Jeyachandran question, namely whether there is, despite the peace process, a particular risk to this claimant, though it was evidently assumed at both instances that this depended on the circumstances of his release.

8. The single ground of appeal before us is that the Immigration Appeal Tribunal has overlooked the key fact that it was because it was the EPDP that had twice engineered his escape or release that the adjudicator had found that the appellant would still be wanted were he to be returned. But what remains a mystery is whether the EPDP was acting with or against the army. The adjudicator must have assumed that it was the latter. The Immigration Appeal Tribunal appear to have assumed that it was the former. Neither tells us why.
9. The CIPU Report of 2003, which the Immigration Appeal Tribunal had but the adjudicator did not, does not yield an answer. Its table of political parties states that the EPDP was formed in 1986. Paragraph 4.25 describes the EPDP as a moderate Tamil political party and records that in January 1988, at Jaffna's first election for 17 years, it took the largest number of seats on a low turnout. In paragraph 4.44 the party also features as a minor party in parliament. But in paragraph 6.87 figures provided by the Medical Foundation for the Care of Victims of Torture are cited as evidence that one or more of a sample of 49 Tamil patients had been tortured by the EPDP.
10. The appellant, for his part, was able to say this but no more than this about his two releases:

"19 On 21 July 2000 or 2001, I was enquired by an important EPDP member at the camp. He was an officer. He was accompanied by a second person. I assumed he was an important individual because it was through him that I was released. He questioned me. I maintained that I do not know the whereabouts of my father and I have no involvement with the LTTE. He took me outside the camp, and left me on the road. I hiked a lift from a vehicle passed by. I travelled certain distance in this vehicle and the rest of the distance I walked home via jungle.

20 I was told through my uncle bribe was paid to the EPDP and as a result I was released. I lived with my family in Parayanalangkulam looking after the cultivation.

Appellant is arrested - 2nd occasion

21 There was another roundup on 21/09/2001 by the army. The army asked me how did come out. They immediately arrested me and took me to Vavuniya camp. They asked me what did I did since I was released by the EPDP. I told them I was looking after my cultivation. They accused me that I escaped form (sic) their custody. They did not believe me the true account I gave. They beat me with baton and also kicked me with their booted leg.

22 I was put in a dark room saying that this is my place. My hands and legs were tied with the rope. These were removed only when I eat. I was threatened that if I ever attempt to escape and caught I would shot. The EPDP visit this camp frequently. When they saw me I told them that have been re-arrested. I told them they were responsible for the release before.

23 The EPDP came in the evening and unlocked the door and took me out of the camp and told me that they cannot prevent me from being re-arrested. They also told they cannot guarantee that they could do this favour again. I was advised not to live in Parayanalangkulam. I returned home and told what the EPDP told me to my mother. I had to run to the jungle a few occasions when the army was around."

11. All one can deduce from the appellant's evidence is that the EPDP appear to have had personnel working in or with the army. Whether they were in a position to effect an official release in return for a bribe, in which case the appellant would not be any longer on the wanted list, or whether they had to smuggle him out, with the opposite likely consequence, we do not know; and neither did the adjudicator or the Immigration Appeal Tribunal make findings which tell us.
12. The passage in paragraph 19 of the appellant's statement, which I have quoted, is more or less fully recited by the adjudicator but is condensed by the Immigration Appeal Tribunal in a way which possibly misses the indication that the appellant had been sought out for release, evidently in response to a bribe. The account of the second release by the EPDP, following the appellant's re-arrest by the army, is similarly equivocal.
13. For my part, I am not convinced that the Immigration Appeal Tribunal can be said, as is said in the appellant's skeleton argument, to have overturned the adjudicator's primary findings of fact and instead to have inferred that the army was involved in the appellant's release. What seems to me to be the case is that neither the adjudicator nor the Immigration Appeal Tribunal has given any explicit attention to whether the circumstances of the appellant's two releases from army custody were such that the appellant will still, on return, be wanted. If he will be, there is much material in the CIPU Report to support the view that he will be at real risk of consequential torture or ill treatment (see, for example, paragraphs 6.71 to 6.74). At each level the decision seems to have been be based on an unexplained assumption, the first in the appellant's favour, the second against him.
14. For the Secretary of State it was pointed out to us that two of the four cases decided under the umbrella of Subesh concerned Sri Lankan Tamils who had escaped rather than been released by means of bribery, and yet their appeals also failed. The Court of Appeal however, at paragraphs 54, 55 and 61 of the Subesh judgment, explain why. In each case the reason had to do with the particular findings made by the Immigration Appeal Tribunal. The problem in the present case is that on the critical question there are none.
15. No separate point rises, in my view, about the reasons for the appellant's detention, whether it was targeted at him or his family or was simply part of the sweep. The findings about the peace process laid to rest any appreciable general risk of repetition on that score. The only question is whether the appellant is still wanted. The Immigration Appeal Tribunal has not so far dealt with this issue, and in particular has not decided whether the Secretary of State's challenge to the adjudicator's implicit finding of fact is made out to the necessary standard now re-established by Subesh.
16. In my judgment this case ought to go back to a differently constituted Immigration Appeal Tribunal so that the implicit assumption made by the adjudicator can be either affirmed or rebutted - in either case upon the basis of such evidence as is available. To this extent and to this end, I would allow the appeal. It may be that the Immigration Appeal Tribunal would be assisted by further objective evidence on this issue so long as it is properly introduced within the rules.
17. LORD JUSTICE NEUBERGER: I agree. Miss Anderson, for the Secretary of State, contends that, read as a whole, the decision of the Immigration Appeal Tribunal is, or at least should have been, that, irrespective of the circumstances of the appellant's release on the two occasions referred to, he was no longer at risk in the light of the change of circumstances in Sri Lanka. That may or may not be right. However the express finding of the adjudicator (or of the Immigration Appeal Tribunal) seems to have been clearly that the appellant was (or was not) at risk of being detained, and the finding was based on an assumption as to the relatiionship between the EPDP and the army at the relevant time, as Miss Solomon contends.
18. In those circumstances I agree with the order my Lord proposes.
19. LORD JUSTICE KENNEDY: I agree with both judgments that have just been given.

Order: Appeal allowed with the costs subject to detailed assessment if not agreed. Matter to return to Immigration Appeal Tribunal