COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM the Asylum and Immigration Tribunal
Senior Immigration Judge Nichols and Immigration Judge Hanbury
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE DYSON
LORD JUSTICE STANLEY BURNTON
| KJ (Sri Lanka)
|- and -
|The Secretary of State for the Home Department
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Jeremy Johnson (instructed by the Treasury Solicitor) for the Respondent
Hearing date: 20 January 2009
Crown Copyright ©
Lord Justice Stanley Burnton:
The procedural history
"6. The Appellant's grounds set out in a skeleton argument are as follows:
i) the AIT reached a perverse conclusion that the Appellant left the LTTE in 1995 because there were no photographs of him in uniform after that date;
ii) the AIT erred in law in rejecting the Claim's account of his escape from a LTTE prison without considering the expert evidence of Dr Smith;
iii) the AIT erred in law in its consideration of Doctor Smith's evidence in so far as it relates to the Appellant's escape from Army custody.
7. It is arguable that the AIT erred in law in its consideration of the photographic evidence in relation to the Appellant's membership of the LTTE. Further, it is arguable that the AIT should have expressly addressed Doctor Smith's expert report in so far as it related to the Appellant's alleged escape from an LTTE prison. It is therefore expedient to remit the Appellant's appeal to the AIT for reconsideration."
The Tribunals' determination under appeal
"5. Having considered the submissions of both parties, we concluded that we should consider all issues afresh at the hearing before us. In relation to the first determination of the Adjudicator, we consider that the entire decision was vitiated by the refusal to adjourn and the consequent procedural unfairness. The matter was pursued on the basis that the appellant had not had an opportunity to properly put his case as he was represented and in our view it is clear from the AIT's decision on 22nd February 2006 that the hearing was adjourned for reconsideration on all issues and that the credibility of the appellant's account was to be re-determined. Given the basis of this application and the decision of the AIT, we do not consider the determination of the Adjudicator can stand. …"
"67. …Having considered this evidence, we have come to the conclusion that the LTTE, although it was not proscribed by the UK at that time, was engaged in activities that were contrary to the purposes and principles of the United Nations. However, we then have to consider whether this appellant's membership and role within the organisation was complicit in those activities, applying the principles to which we have referred above. We only have the appellant's evidence about the nature of his role; however it is reasonable to make some assumptions, on the basis of what he says that he was doing. It is clear on the evidence before us that the appellant was no mere member of the organisation as on his own evidence he had an active role to play. That role was one that was valued by the LTTE because the appellant had particular skills that enabled them to be more accurate in their targeting of Sri Lankan forces. The appellant accepted that soldiers would have died as a result of his action. We have no hesitation in finding the appellant played a crucial role for the LTTE in its armed campaign against the government. Whilst we have noted his evidence that he was never involved in any conflict that caused injury or death to civilians, nevertheless we are of the view, that in the light of his role, the appellant must have known the type of organisation he was joining; its purpose and the extent to which the organisation was prepared to go to meet its aims. We take into account the reasons why he said he joined: he was not forced it was voluntary because he wanted to fight for independence and avenge his relatives who had been killed. We note again from the CIPU that in 1991 the LTTE was proscribed in India following the assassination of Rajiv Gandhi. In the mid-1990s the organisation escalated its violence and carried out bomb attacks in Colombo, when many people were injured. In 1998 the bomb attack on the Temple of the Tooth in Kandy was carried out, and that was the same year that the Sri Lankan government banned the LTTE. We cannot accept that the appellant was not aware, even if he was not personally involved, that the LTTE was carrying out this type of activity that went far beyond an internal armed conflict against the government and was clearly designed to instil terror and fear in the population. Having regard to these facts, and noting what the Tribunal said in KK, that it was not necessary that acts contrary to the principles and purpose of the United Nations should be terrorist in nature; we conclude that the LTTE was engaged in acts contrary to the purpose and principles of the United Nations, and that the appellant's membership and role was complicit in those acts such that he is excluded from the Geneva Convention under Article 1F(c). The appellant is not therefore entitled to refugee status.
68. The appellant is also excluded from humanitarian protection by virtue of paragraph 339C (iv) and 339D (ii). Again this is for the same reasons that he is excluded from the Geneva Convention i.e. that there are serious reasons for considering that he is guilty of the acts contrary to the purposes and principles of the United Nations by virtue of his complicity. Paragraph 339D states:
"339D A person who is excluded from a grant of humanitarian protection under paragraph 339C (iv) where the Secretary of State is satisfied that:
(ii) There are serious reasons for considering that he is guilty of acts contrary to the purposes and principles of the United Nations or has committed, prepared or instigated such acts of encouraged or induced others to commit, prepare or instigate such acts."
69. For the reasons we have given above, in out view the appellant is excluded from humanitarian protection."
"75. …We are unable to square the appellant's account of his detention with the LTTE, in which he clearly stated that he was under suspicion; he was detained; there was a sentry on duty at the front of the camp; and the camp was surrounded by barbed wire, with the background evidence and the expert evidence of Dr Smith. We reject the appellant's account that he was not formally detained, i.e., by being locked up and under guard, because the camp was in such a remote area that it was thought no-one would escape. The appellant, as it would have been known, knew the area well and the remoteness of the camp would not have stopped him. We do not believe it would have been possible for the appellant simply to climb over four or five lines of barbed wire in order to leave this camp without being stopped, and in our view the evidence of Dr Smith certainly does not support his account. We do not believe the appellant was detained by the LTTE."
It followed that the Tribunal rejected his claim that the LTTE had regularly visited his home in an effort to locate him.
"93. However, we must then consider the risk to the appellant in Colombo from members of the LTTE. What the Tribunal made clear in the case of PS was that it was not only high profile targets who are at risk from the LTTE in Colombo, they identified the two other categories that we have mentioned above. There is a real possibility in our view the appellant does fall into the category of a deserter. We have rejected his account that he was detained by the LTTE for any reason and therefore his profile is not as high as someone who had deserted from the LTTE detention. Nevertheless, taking account of what the Tribunal said in LP and PS and Dr Smith's opinion, we have reached the conclusion that there is a real risk that the appellant's background would be discovered by LTTE infiltrators in Colombo, particularly given the sophistication of their organisation and we cannot rule out a real risk of serious harm if he were to be discovered. We make this finding in the knowledge that it is now some years since he was a member of the LTTE. We also make it clear we do not believe there is any risk that the LTTE would come looking for the appellant in Colombo, for the very reasons spelt out by the Tribunal in PS, however, as we say, we cannot rule out real possibility of discovery. In that event the background evidence and cases we have referred to, support a conclusion that the appellant would not have a sufficiency or protection available from the Sri Lankan authorities."
The issues before the Court on this appeal
The application of the principle in DK (Serbia)
20. … The jurisdiction is one which is being exercised by the same tribunal, conceptually, both at the first hearing of the appeal, and then at any reconsideration. That seems to me to be the key to the way in which reconsiderations should be managed in procedural terms.
21. In the first instance, in relation to the identification of any error or errors of law, that should normally be restricted to those grounds upon which the immigration judge ordered reconsideration, and any point which properly falls within the category of obvious or manifest point of Convention jurisprudence, as described in Robinson  QB 929. Therefore parties should expect a direction either from the immigration judge ordering reconsideration or the Tribunal on reconsideration restricting argument to the points of law identified by the immigration judge when ordering the reconsideration. Nothing in either the 2004 Act or the rules, however, expressly precludes an applicant from raising points of law in respect of which he was not successful at the application stage itself. And there is no appellate machinery which would enable an applicant who is successful in obtaining an order for reconsideration to challenge the grounds upon which the immigration judge ordered such reconsideration. It must however be very much the exception, rather than the rule, that a Tribunal will permit other grounds to be argued. But clearly the Tribunal needs to be alert to the possibility of an error of law other than that identified by the immigration judge, otherwise its own decision may be unlawful.
22. As far as what has been called the second stage of a reconsideration is concerned, the fact that it is, as I have said, conceptually a reconsideration by the same body which made the original decision, carries with it a number of consequences. The most important is that any body asked to reconsider a decision on the grounds of an identified error of law will approach its reconsideration on the basis that any factual findings and conclusions or judgments arising from those findings which are unaffected by the error of law need not be revisited. It is not a rehearing: Parliament chose not to use that concept, presumably for good reasons. And the fact that the reconsideration may be carried out by a differently constituted tribunal or a different Immigration Judge does not affect the general principle of the 2004 Act, which is that the process of reconsideration is carried out by the same body as made the original decision. The right approach, in my view, to the directions which should be considered by the immigration judge ordering reconsideration or the Tribunal carrying out the reconsideration is to assume, notionally, that the reconsideration will be, or is being, carried out by the original decision maker.
23. It follows that if there is to be any challenge to the factual findings, or the judgments or conclusions reached on the facts which are unaffected by the errors of law that have been identified, that will only be other than in the most exceptional cases on the basis of new evidence or new material as to which the usual principles as to the reception of such evidence will apply, as envisaged in rule 32(2) of the Rules. It is to be noted that this rule imposes the obligation on the parties to identify the new material well before the reconsideration hearing. This requirement is now underlined in the new Practice Direction 14A. This sets out in some detail what is required in such a notice.
25. Accordingly, as far as the scope of reconsideration is concerned, the Tribunal is entitled to approach it, and to give directions accordingly, on the basis that the reconsideration will first determine whether or not there are any identifiable errors of law and will then consider the effect of any such error or errors on the original decision. That assessment should prima facie take place on the basis of the findings of fact and the conclusions of the original Tribunal, save and in so far as they have been infected by the identified error or errors of law. If they have not been infected by any error or errors of law, the Tribunal should only re-visit them if there is new evidence or material which should be received in the interest of justice and which could affect those findings and conclusions or if there are other exceptional circumstances which justify reopening them.
The italics are mine.
43. I would add this on the procedural aspect of the case. Had the Tribunal been right in its critique of the determination in relation to Rule 31(7), it should have included in its order a direction that the immigration judge who was to continue the reconsideration should do so on the basis that the facts found by Mr Ince were to stand save in so far as the issue to be reconsidered required their significance to be re-evaluated.
44. The reason why it is important to be rigorous about this is that reopening a concluded decision by definition deprives a party of a favourable judgment and renders uncertain something that was certain. If a discrete element of the first determination is faulty, it is that alone which needs to be reconsidered. It seems to me wrong in principle for an entire edifice of reasoning to be dismantled if the defect in it can be remedied by a limited intervention, and corresponding right in principle for the AIT to be cautious and explicit about what it remits for redetermination."
18. As Latham LJ noted, those comments had not been the subject of argument in that case, nor were they in terms adopted by the other members of the court (of which I was one). I am happy now to adopt them. They remind us that there are two distinct aspects to the new approach, equally important. One is efficiency, the other fairness. On the one hand, the approach gives effect to the policy objective "to streamline the overall appellate process…" (DK para 4). On the other, the appellant should not be subjected without good reason to the stress and uncertainty of a new hearing on an issue on which he has succeeded. …
23. On the second ground of appeal, it seems to me that the answer is equally clear the other way. In the light of DK it was in my view wrong for the Jordan panel to order reconsideration of the whole case, including credibility. The appellant's account of his treatment by the GIA, and of his role as an informer for the police had been accepted by Mrs Kempton. That finding had not been challenged on the request for reconsideration, nor had any new material or other exceptional circumstances been identified to justify reopening it. Had the guidance in DK been available to the Jordan panel, I would have expected them to have taken steps to limit the issues on the rehearing to exclude those not materially affected by the error of law. Although they cannot of course be blamed for the failure, it was nonetheless (as in PE) an error of law.
The application of Article 1F(c)
"The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c) he has been guilty of acts contrary to the purposes and principles of the United Nations."
"Having regard to these facts, and noting what the Tribunal said in KK, that it was not necessary that acts contrary to the principles and purpose of the United Nations should be terrorist in nature; we conclude that the LTTE was engaged in acts contrary to the purpose and principles of the United Nations, and that the appellant's membership and role was complicit in those acts such that he is excluded from the Geneva Convention under Article 1F(c)."
Risk from government forces
"… we do not believe the circumstances in which the appellant claimed a bribe was paid on his behalf. Under cross-examination the appellant was asked how his uncle had been able to find him in the medical unit where he claimed he had been transferred. He said an offender told him and then changed his account and said people living in new where he was detained. He said his uncle would have been able to find out from the agent. Given that the appellant claimed to have been rounded up by the army in Vavuniya, we are unable to see how people living in Colombo could possibly have known any of the details of the appellant's claimed detention. We found the appellant's evidence as to how his uncle managed to find out where he was vague and totally unpersuasive. We do not believe the circumstances of this detention: we do not believe it ever happened."
Risk from the LTTE
… What the careful analysis made by Miss Richards clearly demonstrates is that those who are reasonably likely to be targeted [by the LTTE] have a high profile which makes them particularly likely to be the object of LTTE reprisals. The analysis demonstrates that prominent present or past supporters of Tamil political parties which have aligned themselves with the government against the LTTE, LTTE defectors (particularly those who have then aligned themselves with the Sri Lankan army military intelligence units) and, more recently, those closely associated with the internal LTTE schism as supporters of Colonel Karuna, are at potential risk of being targeted.
This passage was cited by the Tribunal in paragraph 89 of its determination under appeal.
"It is highly likely that the Appellant is registered on [the LTTE's] electronic database as a defector or as a traitor because he escaped from detention. As such, his human rights and civil liberties would, at the very least, be vulnerable form the LTTE on return to Sri Lanka."
But KJ's account was rejected by the Tribunal. It follows, in my judgment, that the Tribunal had no basis for treating KJ as a suspected defector or traitor rather than as a deserter.
"228. …. We find however, given his profile, as regards the LTTE, then if he were able to locate himself in Colombo there is nothing in that profile that would suggest a real risk to him of serious harm at the hands of the LTTE."
The Tribunal in the present case in paragraph 93 of their determination purported to take into account LP, but reached a different conclusion without explaining any distinction.
Lord Justice Dyson
Lord Justice Waller.