COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM APPEALS TRIBUNAL
THE ASYLUM & IMMIGRATION TRIBUNAL
(THE SINGLE JUDGE)
REF NO: AA/04131/2009
Strand, London, WC2A 2LL
B e f o r e :
(Vice President of the Court of Appeal, Civil Division
LORD JUSTICE THOMAS
LORD JUSTICE ETHERTON
| SS(SRI LANKA)
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
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Mr Denis Edwards (instructed by Treasury Solicitors) for the Respondent
Hearing date : 19 January 2011
Crown Copyright ©
Lord Justice Maurice Kay :
"He was released without charge and all the indications are that the STF accepted his story of his very limited involvement. In his witness statement he confirms that 'the STF could not prove me a LTTE informer at the time of my arrest'. All of this suggests he would have been of very little interest to the authorities."
It is necessary to set out the further findings of the Immigration Judge in more detail.
"28. This lack of interest is further supported by the fact that the appellant had no further direct contact with Karuna or the STF in the six months he was in his home area after his release. The appellant asserts that Karuna came looking for him at his Karaitivu residence when he failed to sign on. It is unclear whether he means his home or his aunt's home … There is no indication that if there was a search it was very intensive given that they never found him. He claims that because of pressure from Karuna (as well as the LTTE) he went to his aunt's house in Kalmunai. This is 4-5 Km from his home in Karaitivu. When spotted by the LTTE he ran away and went to hide at his aunt's daughter's house which he stated was 1 Km away and remained there until June 2008. There is no evidence at all that Karuna or the STF made any attempt to trace him in this period. … He did not leave for Colombo until 18 June. Asked why he stayed that long if he was being sought by Karuna and LTTE he said in oral evidence that he wanted to stay in his own country. There was no particular incident which on his account prompted him to go to Colombo and overall little or anything to indicate he left because he was targeted and at real risk of persecution or ill-treatment.
29. During this six-month period in his home area when he claimed he was in hiding and failing to report, he had applied for a passport in his own name and gave his home address. He had applied for a passport because his father advised him to do so. The fact that he was seeking to obtain a passport in his own name suggests that he was planning to leave using his own ID through normal channels and saw no particular risk in doing so. He asserts that he did not do so because the passport never came in the post. None of this suggests that the appellant felt he was being sought by the authorities …
32. I considered the appellant's account of his injuries and scars [about which there was a medical report from Dr Josse]
35. I concluded that the physical evidence of very limited scarring and the report of Dr Josse did not assist in corroborating the appellant's overall account of his experiences in Sri Lanka.
37. I considered the appellant's account of his journey to the UK … I did not consider [it] credible."
"I considered whether the appellant faced a real risk of persecution or ill-treatment on return following the guidance of the authorities cited including NA v United Kingdom  EHRR 616. The court in NA accepted there was no general risk to Tamils. I accept that the appellant would be returning as a failed asylum seeker. However, if questioned at the airport there is no indication that there was anything to trigger suspicions that the appellant supported the LTTE. I concluded that the appellant's scarring was so limited [it] would not of itself have triggered suspicions on the part of the authorities on return. He had never been charged either in Karaitivu in 2007/8 or in Colombo. The authorities in his home area had accepted his explanation that he helped the LTTE only with a banner and in fear. The respondent concluded that the fact that the STF and Karuna had accepted his explanation and released him without charge meant he was not of interest to them … The appellant refers to this in his witness statement and confirms that 'the STF could not prove me as a LTTE informer at that time of my arrest'. I did not accept that the appellant had been detained and questioned for a week in Colombo but even if he had the authorities in Colombo appeared to be unaware that he had failed to sign on in Karaitivu and there was minimal evidence that he was considered of significance. There was no evidence his family [were] involved in LTTE politics. There is no evidence of any pressure on the appellant's family. The appellant indicates … in June 2009 that his father continues to work as an irrigational department officer, his mother lives at home and both his sisters were currently studying. The appellant has been in contact with his parents and two sisters since his arrival in the UK. There is no suggestion that his family has been harassed in any way either by the LTTE or the authorities. There was no evidence either the appellant or the family friend with whom he was staying were active in politics in the UK. The appellant could be met by his family at the airport on his return. His ID was on his account at home and could be produced. I have taken into account the overall security situation in the east of Sri Lanka at the time the appellant left. However, on all the evidence I concluded that the appellant had left Sri Lanka for reasons other than a fear that he was targeted by the LTTE or the authorities. Overall I am not satisfied that the appellant would be at real risk either from the LTTE or the authorities on return to his home area."
I now turn to the question whether any material error of law is disclosed in these passages or elsewhere in the Determination.
"(i) Tamil ethnicity.
(ii) previous record as a suspected or actual LTTE member or supporter.
(iii) previous criminal record and/or outstanding arrest warrant.
(iv) bail jumping and/or escaping from custody.
(v) having signed a confession or similar document.
(vi) having been asked by the security forces to become an informer.
(vii) the presence of scarring.
(viii) return from London or other centre of LTTE activity or fund-raising.
(ix) illegal departure from Sri Lanka.
(x) lack of ID card or other documentation.
(xi) having made an asylum claim abroad.
(xii) having relatives in the LTTE."
"When examining the risk factors it is of course necessary to also consider the likelihood of an appellant being either apprehended at the airport or subsequently within Colombo. We have referred earlier to the Wanted and Watched Lists held at the airport and concluded that those who are actively wanted by the police or who are on a Watch List for a significant offence may be at risk of being detained at the airport. Otherwise the strong preponderance of the evidence is that the majority of returned failed asylum seekers are processed relatively quickly and with no difficulty beyond some possible harassment."
"128. … Both the assessment of the risk to Tamils of 'certain profiles' and the assessment of whether individual acts of harassment cumulatively amount to a serious violation of human rights can only be done on an individual basis …
133. … The court therefore finds that, in the context of Tamils being returned to Sri Lanka, the protection of Article 3 … enters into play when an applicant can establish that there are serious reasons to believe that he or she would be of sufficient interest to the authorities in their efforts to combat the LTTE as to warrant his or her detention and interrogation …
134. … The court's assessment of whether a returnee is at real risk of ill-treatment may turn on whether that person would be likely to be detained and interrogated at Colombo airport as someone of interest to the authorities. Whilst this assessment is an individual one, it too must be carried out with appropriate regard to all relevant factors taken cumulatively including any heightened security measures that may be in place as a result of an increase in the general situation of violence in Sri Lanka."
"So far as concerns the likely approach of the Sri Lankan authorities to returned failed asylum seekers, we consider therefore that their principal focus would be on persons considered to be either LTTE members, fighters or operatives or persons who have played an active role in the international procurement network responsible for financing the LTTE and ensuring that it was supplied with arms."
"… the Court should not be astute to characterise as an error of law what, in truth, is no more than a disagreement with the AIT's assessment of the facts. Moreover, where a relevant point is not expressly mentioned by the Tribunal, the Court should be slow to infer that it has not been taken into account."
Lord Justice Thomas:
Lord Justice Etherton: