England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
(DEPUTY UPPER TRIBUNAL JUDGE PARKES)

		Royal Courts of Justice Strand London, WC2A 2LL
		11 December 2014

1. LADY JUSTICE ARDEN: This is a second appeal over the risk to the appellant of return to Sri Lanka of sexual violence in one of the former conflict zones in Sri Lanka. This risk arises from the rape which she suffered while in detention following the termination of the conflict with the defeat in May 2009 of the LTTE, the Tamil separatist movement. The appellant is herself a Tamil. The basic question is whether there is evidence that there is risk to Tamil women in her circumstances and, if so, whether the Upper Tribunal should have considered this when ruling that there was no significant risk to her on return.
2. The sexual violence which the appellant suffered is described in the First-tier decision in this matter dated 22 December 2011. The most serious incident occurred in February 2011 while the appellant was in an agent's home waiting for a visa to come to the United Kingdom. The military came to the agent's home, arrested the appellant and took the appellant away. She was accused of being an LTTE escapee, she was interrogated and raped, she was released after 3 days, she became pregnant and after she arrived in the United Kingdom she had a termination.
3. Following her arrival in the United Kingdom in February 2011 the appellant claimed asylum. The Secretary of State refused her claim on 11 August 2011 with a detailed letter and on the same date removal directions were given. The appellant then appealed to the First-tier Tribunal.
4. In her decision dated 22 December 2011, Immigration Judge Sommerville accepted that the appellant was a relatively young female Tamil who had claimed asylum abroad. She held that the appellant had identity documents, namely her passport with a student visa endorsed, and that she had left Sri Lanka legally. There was no evidence that she had ever signed a confession. The Immigration Judge accepted that the appellant had been arrested three times by the Sri Lankan authorities and that she was released on at least one of these occasions on payment of a bribe.
5. Immigration Judge Sommerville found that the appellant was never a member of the LTTE and had never given them support. Immigration Judge Sommerville importantly accepted that the appellant had become pregnant as a result of rape when in detention and that her pregnancy had been terminated. However, the Immigration Judge did not accept all the evidence that the appellant gave. She did not accept that the LTTE had abducted her brother or that he had fought for the LTTE and that the appellant had been targeted because of her brother's associations with the LTTE or that the Sri Lankan forces had killed the appellant's father, who was shot in an incident in March 2006.
6. The Immigration Judge held that it was unexplained why the appellant had delayed fleeing Sri Lanka until her third application for a student visa was granted. It was not clear that she had ever had any genuine intention of studying in this country and she did not do so. Therefore, the Immigration Judge found, she had misled the Entry Clearance Officer.
7. Immigration Judge Sommerville noted that there was no evidence that the appellant had suffered scarring but having regard to the low standard of proof the Immigration Judge said that she was prepared to accept that the appellant was arrested three times but concluded that these were general round-ups of Tamils. The Immigration Judge concluded that the appellant with her profile would not be at real risk on return.
8. In the light of that adverse decision the appellant then appealed to the Upper Tribunal and on 3 November 2011 Immigration Judge Froom upheld that it was arguable that the Immigration Judge had erred in failing to give adequate reasons for her finding that the appellant would not be at risk on return notwithstanding the finding of past persecution. Arguably the Immigration Judge was not entitled to reject the evidence about her brother solely because he was released on payment of a bribe and in the opinion of the Immigration Judge more in depth findings were required as to the manner of her release, as urged by the tribunal in earlier case law. Thus, Immigration Judge Froom gave permission to appeal to the Upper Tribunal.
9. On 22 May 2012 the Upper Tribunal held that there had been an error of law and directed a further hearing of the issue of risk on return. The Upper Tribunal gave directions for serving further evidence. However, the appellant did not take advantage of that opportunity and no further evidence was filed.
10. After the date of the decision in May 2012 the Upper Tribunal decided a new Country Guidance case about Sri Lanka, namely GJ v Secretary of State for the Home Department [2013] UKUT 00319. Country Guidance cases deal with general issues about a country and are to be treated as authority by other tribunals in relation to the country issues which they decide unless the decision is superseded by a later Country Guidance decision or is inconsistent with binding authority or evidence that was not considered when the Country Guidance case decision was given.
11. The new Country Guidance case GJ dealt with a large number of categories of individuals but it specifically did not deal with a number of other categories. The Upper Tribunal had a wealth of evidence, including a report entitled "Eligibility Guidelines for Assessing International Protection Needs of Asylum-Seekers from Persecution" issued by the UNHCR in December 2012. At paragraph 288 of the decision in GJ the Upper Tribunal quoted a statement by the UNHCR as follows:

"All claims lodged by Sri Lankan asylum-seekers, whether on the basis of the refugee criteria contained in the 1951 Convention, or complementary forms of protection based on human rights obligations need to be considered on their own merits according to fair and efficient status determination procedures and up-to-date and relevant country of origin information.

More specifically, the possible risks facing individuals with the profiles outlined below require

Particularly careful examination. UNHCR considers that individuals with these profiles – though this

List is not exhaustive – may be, and in some cases are likely to be in need of international refugee protection depending on the individual circumstances of their case."

12. In the following paragraph of their judgment, namely paragraph 289, the Upper Tribunal set out UNHCR's list of groups requiring "particularly careful examination", including at subparagraph (5) certain witnesses of human rights violations and victims of human rights violations seeking justice and, category 6, "women in certain circumstances".
13. The Upper Tribunal went on to say that the evidence before them related to the first five groups, that is including witnesses of human rights violations and victims seeking justice but it did not include women in certain circumstances. The Upper Tribunal noted that counsel for the Secretary of State, Mr Hall, accepted that those who were detained were likely to be ill-treated and the evidence suggests that for both sexes that ill-treatment sometimes includes sexual abuse. It continued:

"We have not been taken to evidence relating to children or to LGBTI individuals and the guidance in this determination does not therefore deal separately with women, children or LGBTI individuals."

14. We have been shown an extract from the eligibility guidelines issued by the UNHCR and I refer now to a passage appearing at page 126 of the bundle of authorities produced for today's hearing. The section is number A.6 and it is headed "Women In Certain Circumstances" and the subheading and the text are referenced to a number of reports which were used as a basis for what follows. The paragraph which is particularly relevant and the only one I need read for today's purposes is the third paragraph under this subheading, which reads:

"A number of factors have been cited in various reports as contributing to increased insecurity and vulnerability of women in the north and east of Sri Lanka. The most relevant include the following: a) large numbers of female-headed households in the areas most affected by the armed conflict; b) women's weak economic position; c) high militarization, including dependency on security forces for access to detained family members; d) impunity and weak administration of justice; e) prostitution and vulnerability to trafficking in displacement or post-relocation; and f) the vulnerable position of former female LTTE cadres and war widows."

15. The appellant comes from one of the areas of Sri Lanka which are mentioned and, it is common ground, would have to return to her home area on return to Sri Lanka. She fulfils the first three of these factors in that her household will be a female-headed household since her mother is widowed, there is no evidence to suggest that her position is other than a weak economic position, and there is certainly contended that there is high militarisation in the former Tamil areas of Sri Lanka. The evidence in the GJ decision was that there were five civilians for each member of the military, which is a very high level indeed.
16. The other point to note about this paragraph is that it is referring to factors rather than stating definitively that these people are vulnerable, these are factors which have to be taken into account in assessing vulnerability.
17. The decision in GJ was clearly raised at the next hearing of the appellant's case, which was on 24 September 2013. The Upper Tribunal, Deputy Upper Tribunal Judge Parkes, then gave the Upper Tribunal's decision on the return issue. The Upper Tribunal dealt with a submission by the appellant that the decision in GJ did not deal with the position of women amongst others and no evidence in relation to that had been received. The appellant also submitted that she would fall within the risk categories in GJ in any event because she would be associated with her brother and it was said that it was conceivable she would be on a watch list.
18. For the Home Office it was submitted that while past persecution was a guide to future risk, if there had been a change in circumstances, that would justify the decision that she would not be at risk and the change of circumstances would justify a decision that she was not at risk then the position was different(?), as in the case of the second appellant in GJ, and there was no evidence produced by the appellant that women in general were at risk of sexual violence. There were other submissions as well but I am simply focusing on these as the ones that are relevant for today's purposes.
19. The Upper Tribunal accepted that there was no question of internal relocation and considered the position if the appellant returned to her home address. The Upper Tribunal ruled that the appellant had not provided evidence to show that as a Tamil female she would at risk in Sri Lanka. The Upper Tribunal continued:

"There is no evidence to suggest that females in Sri Lanka form a risk category in addition to the risk categories identified in the case of GJ."

20. The Upper Tribunal then dealt with the submissions of the Home Office. It held that the defeat of the LTTE and subsequent realignment of the political situation in Sri Lanka was a clear change in circumstances as that this was reflected in the amendment of the risk categories in GJ. The Upper Tribunal was satisfied that the finding that the appellant had been raped was not an issue as matters then stood which could be said to be indicative of future risk to her with her background. The Upper Tribunal also rejected the argument that the appellant fell within the specified risk categories identified in GJ. There was no real risk that the appellant would be on a stop list or watch list. The process in Sri Lanka on security matters was now intelligence-led so that a person not regarded as a Tamil activist working to destabilise the state was not reasonably likely to be detained. The appellant was not in that category, therefore she was not at risk of persecution or in need of international protection.
21. I turn now to the argument on this appeal. Ms Jegarajah points out that there is no Country Guidance that addresses the separate circumstances of Tamil women from the former conflict territory. She submits that this case should be referred for consideration as a Country Guidance case in respect of risk to returning Tamil women from the former conflict zones. She accepts, however, realistically, that this court has no jurisdiction to make an order to this effect. She submits that this court should remit the case to the Upper Tribunal because it fell into error because it said there was no evidence to suggest that Tamil females in Sri Lanka form a risk category in addition to the risk categories identified in GJ. She candidly informed us that if the case was remitted she would then be in a position to argue that there should be a Country Guidance case.
22. Ms Jegarajah emphasises that the area to which the appellant would have to return is still heavily militarised and that this is significant given the widespread and continuing rape allegations related to the army and associated paramilitary groups. In GJ, as I have already explained, the tribunal found that there were five civilian members of the population for every one soldier (see paragraph 328 of its decision).
23. Ms Jegarajah seeks to argue that Tamil women in conflict zones constitute a separate social group for refugee law purposes so that individual risk on return would not have to be shown. However, it is sufficient for her case to say that the case on risk to the appellant has not been properly considered.
24. Ms Jegarajah invites us to take account of material that was not before the Upper Tribunal. This includes a judgment of the Swiss Federal Court dated 27 October 2011. This shows, she submits, that sexual violence in Sri Lanka is a significant matter. In addition she relies on a document dated 28 August 2014 issued by the Home Office. This is at page 123 of the authorities bundle. The document is entitled "Country Information and Guidance Sri Lanka: Tamil Separatism". The relevant section of this is paragraph 1.3.8 and in particular the sentences which reads:

"The threat of a revived LTTE is also used to justify militarisation in the north. NGOs recorded incidences of sexual abuse to Tamil men and women. Tamil women, especially ex LTTE cadres, widows and the wives of disappeared or 'surrenderees' are vulnerable to sexual harassment, exploitation or assault by army personnel or other militias."

25. She also referred to a resolution dated 9 April 2014 of the General Assembly of the United Nations. This is a detailed document and it demonstrated the continued concern of the international community at continuing human rights abuses in Sri Lanka and calls on the Sri Lankan government to continue to investigate these abuses and call the perpetrators to account.
26. Those three documents are documents which were not available for the Upper Tribunal and accordingly it is not necessary for me to go into them in further detail.
27. I now turn to the submissions for the Secretary of State. The Secretary of State is represented by Mr Will Hays, who, like Ms Jegarajah, was counsel in the GJ case. Mr Hays explains that the Secretary of State does not consider that she should agree to the appellant's request to this court for the case to be remitted for consideration of the possibility of a Country Guidance case on the question of whether Tamil women in the conflict zone form a particular social group for refugee law purposes. He submits that it must be a matter for the specialist tribunal to decide when to have Country Guidance cases and which issues to consider. In particular he submits that asylum cases on gender-related violence from Sri Lanka are or may be rare and therefore it may be that they are unlikely to merit Country Guidance treatment and this reinforces his point that it is a matter for the specialist tribunal.
28. He further submits that the absence of guidance does not mean that the case has to be referred for another Country Guidance case for this reason: in asylum proceedings the burden of proof remains on the asylum seekers, the tribunal can always depart from a Country Guidance case on the specific facts of the case (see NM (Lone Women - Ashraf) Somalia Country Guidance Case). Thus it is not right to say that the appellant must "shoehorn her case" into GJ, as Ms Jegarajah colourfully suggested.
29. Although there may be need for a further Country Guidance case, Mr Hays submits that that does not affect this case. In any event the question whether to have a Country Guidance case is, as I have explained, a matter for the Upper Tribunal. He submits that the tribunal has decided to reject calls for Country Guidance in this area. Finally, he submitted that if the appellant does have the relevant evidence to adduce, it remains open to her to give it to the Secretary of State in the form of submissions under paragraph 353 of the Immigration Rules.
30. I accept Mr Hays' submission that it is not for this court to direct the Upper Tribunal to consider whether to have another Country Guidance case and I would reject the application that this court should make an order to that effect but that leaves the question whether the Upper Tribunal made an error in dealing with the risk on return issue. If it did not make an error, then it follows that Mr Hays is correct that the appellant's only remedy is to file a fresh claim for the consideration of the Secretary of State pursuant to paragraph 353 of the Immigration Rules.
31. Mr Hays correctly submitted that this court can only decide this appeal on a point of law, so the error has to be one of law. He goes on to emphasise by way of background that it was not disputed below that simply applying the Country Guidance given in GJ the appellant is not a risk. Moreover, he points out that the risk categories in GJ were gender neutral, they could apply to both men and women, and, moreover, the evidence in GJ about sexual violence was that it affected both sexes in detention, not women alone. Mr Hays accepts that GJ did not specifically consider the separate position of women. However, he focuses on the point that the appellant has wholly failed to put any further evidence before the Upper Tribunal that Tamil women formed an additional category of risk. Moreover, he submits that was all that the Upper Tribunal was saying at the end of paragraph 10 of its decision and furthermore that it was literally correct in that.
32. I agree that paragraph 10 can literally be so read. However, it is clear in the context that the section had a wider function in the reasoning of the Upper Tribunal because the Upper Tribunal makes no further evaluation of the risk attaching to the fact that the appellant had been raped in detention significantly after the conflict had ended. The Upper Tribunal, as I read it, was saying that there was no evidence to suggest that Tamil women might form an additional category of risk in addition to the risk categories actually identified in GJ.
33. On that basis, as I see it, there was an error of law because we know that that conclusion was in conflict with the UNHCR eligibility guidelines in the passage that I have quoted already.
34. Moreover, that interpretation is confirmed by the subsequent material that we have been shown concerning the vulnerable position of Tamil women. I am not saying that the evidence that we have seen establishes that they are entitled to be treated as a separate category but there is certainly, as I see it, sufficient material to give rise to more in depth reasoning and inquiry on the tribunal's part than is to be found at paragraph 10.
35. There is a further point on paragraph 11. The Upper Tribunal has assumed that the change in circumstances identified in GJ, namely the defeat of the LTTE and subsequent realignment of the political situation would have a similar effect on the ground in the Tamil territories in the north and the east of Sri Lanka. In terms of intelligence capacity, we know from the GJ decision that the Government of Sri Lanka's method of identifying LTTE sympathisers is now much more sophisticated and technically based than it used to be. For example, it monitors the internet and mobile telephone calls and so on. But it does not follow that similar changes would have occurred in the Tamil areas, which, as we understand it, remained militarised zones with high proportions of soldiers to civilians. So the position on the ground for that purpose has not significantly changed. The high level of militarisation may be such as to put vulnerable individuals such as members of households headed by women at risk.
36. I would therefore hold that the failure of the Upper Tribunal to perceive this distinction and to evaluate its implications constitutes a material error of law in the assessment of the risk on return.
37. For these reasons, while accepting that we have heard excellent argument from both sides, I would allow the appeal and remit the matter to the Upper Tribunal.
38. LORD JUSTICE BEAN: I agree.
39. LORD JUSTICE FLOYD: I also agree.