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)

		Royal Courts of Justice Strand, London, WC2A 2LL
		20th May 2014

Lord Justice Patten :

1. The appellant, SA, is a Sri Lankan national of Tamil ethnicity. He appeals with the permission of Longmore LJ against the dismissal by the Upper Tribunal of his appeal from a decision of the First-tier Tribunal which upheld the decision of the Secretary of State to refuse to grant him either asylum or humanitarian protection. His sole ground of appeal for which permission was granted is that there has been new country guidance on asylum claims by Sri Lankan nationals (see GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 319(IAC)) ("GJ") which post-dates the guidance in TK (Tamils, LP updated) Sri Lanka CG [2009] UKAIT 00049 ("TK") that was applicable at the time of the Secretary of State's decision and at the time of the appeal in the Upper Tribunal and was not therefore considered by the Upper Tribunal when deciding to reject SA's appeal.
2. The Secretary of State resists the appeal on two alternative grounds. First she contends that the jurisdiction of the Court of Appeal to set aside or vary an order of the Upper Tribunal depends upon the appellant demonstrating that the Upper Tribunal made an error of law in determining the earlier appeal and that no error of law occurred in this case. The Upper Tribunal correctly applied the country guidance then in force and the new country guidance cannot render its decision unlawful retrospectively. The remedy for an appellant where the guidance changes during the appeal process is to make further submissions under paragraph 353 of the Immigration Rules. Alternatively, the Secretary of State contends that, even had the Upper Tribunal had the benefit of the new country guidance, it would still have dismissed the asylum claim appeal.
3. To place these submissions in context it is necessary to summarise the background to the claim and the procedural history. SA claims that in October 2007 a number of people in his village were taken away by CID officers on suspicion of being members of the LTTE (Liberation Tigers of Tamil Eelam). On 19 January 2008 his cousin was abducted and killed. SA says that he then assisted his cousin's widow to bring a court case. On 26 September 2008 he was taken away during the night by CID officers who beat and tortured him on suspicion of his helping the LTTE. He was taken to court and then detained in custody until 27 October 2008 when he was released on bail. Eventually he was found not guilty.
4. He then returned and resumed his fishing business which he had started with his cousin. There were no further incidents until 2011 when in July of that year so-called "grease men" came to his village and raped a number of the women. His evidence to the FTT was that because his business had been successful, some of his enemies in the village, jealous of his business, had given false information about him to the CID about his involvement with the grease men. As a consequence, on 1 August 2011, he was taken away by CID officers to a house in the jungle where he was tortured and almost killed. He bargained for his release and the CID agreed to accept 30 Lakhs (£15,000) for his release on condition that he did not remain in Sri Lanka. He was allowed to call his wife who made arrangements for the payment. He was released on 2 August and then travelled to the UK on 7 August arriving in London on 25 August. It is not clear precisely when he made his claim for asylum but a screening interview was held on 19 December 2011.
5. The Secretary of State rejected SA's claims for asylum and humanitarian protection in a decision letter dated 13 February 2012. It was accepted that people in SA's village may have been detained and abused, or even shot, in 2007 on suspicion of being members of the LTTE. But the absence of any further incidents until 2011 led the Secretary of State to conclude that SA had ceased to be of any interest to the authorities after his release in 2008. His account of being re-arrested in 2011 and then securing his release by bribing a CID officer on condition he left the country was disbelieved and it was not accepted that he would be at risk of persecution or harm on return to Sri Lanka. Even if he did continue to face a real risk of persecution in his home area, the Secretary of State took the view that he could re-locate to Colombo where he would not be at risk from detention or abuse by the security services. The decision letter refers to the risk factors listed in the country guidance decision in LP (Sri Lanka) CG [2007] UK AIT 00076 and to the ability of failed asylum seekers to re-establish themselves there without risk of harassment or ill-treatment either from former members of the LTTE or the local Sinhalese population.
6. SA's appeal to the First-tier Tribunal was unsuccessful. Immigration Judge Brown, unlike the Secretary of State, accepted his account of his arrest and detention in 2011 which was consistent with the degree of scarring on his body. But he concluded that SA's re-arrest and subsequent torture was likely to have been carried out in order to extort money from him as a successful businessman and that he would not be at risk of further harm if he re-located to Colombo:

"39. I have concluded that the appellant has given a true account of his experiences in relation to arrests and detention in Sri Lanka. I conclude however that the appellant's abduction in 2011 was unlikely to be by the CID and was more likely to have been by unknown people who did so with the aim of extorting money from him being a relatively successful businessman. I acknowledge that the arrest may have been by "rogue" officers of the CID. There is no evidence before me that the Sri Lankan Police were making such arrests systematically and there is little or no evidence that the arrest was made on behalf of the CID who were investigating the "grease men" rapes. I acknowledge that whoever was responsible for the abduction would want to make sure the appellant did not return to the area from where he came so as to prevent any investigation into their own illegal conduct.

40. I have concluded that having regard to the threats made against him the appellant may have a genuine fear of return to his home area. Clearly he would be well known in the area having regard to his successful business and it may be that he is at risk from those who had extorted money from him in that area. However the appellant is someone who has travelled to Colombo regularly which is in excess of 100 miles away from his home area and where there is a large Tamil population. I see no reason why the appellant cannot live safely in Colombo. I have therefore concluded that there is no real risk of harm or ill treatment that could contravene Article 3 of the ECHR if he were to be removed to Colombo.

41. In coming to my conclusion I have given detailed consideration to the risk factors set out in the cases of TK (Tamils-LP Updated) Sri Lanka [2009] UKAIT 00049 and LP (Sri Lanka) [2007] UKAIT 00076. I conclude that the appellant case be safely returned to Sri Lanka. I do not consider that it is likely that the appellant will be detained upon entry to Sri Lanka. I consider that it is likely that there may be a record of his previous involvement with the authorities in 2008 but matters have moved on since that time and he was released from his obligations to report at that time. I consider that it is unlikely that there will be any record of his claimed arrest and detention in August 2011. I find that this was illegal action that would not be documented in any way."

7. Permission to appeal to the Upper Tribunal was granted on 1 October 2012 on the ground that the First-tier Tribunal had failed to engage properly with the risk factors set out in the country guidance case of TK. Judge Garrett accepted that the decision was inadequately reasoned but then also proceeded to determine which of Judge Brown's findings of fact were sound and could form the basis for a re-determination of the asylum appeal. He concluded that the judge's findings about the events of 2008 and 2011 could stand but that the Upper Tribunal should re-consider the issue of risk of persecution on return both in respect of any return by SA to his home village and in respect of his possible re-location to Colombo.
8. The substantive appeal to the Upper Tribunal took place before Judge Grant on 22 January 2013 who dismissed the appeal in a decision promulgated on 29 January. So far as material to this appeal, the judge found that SA was unlikely to be of any interest to the Sri Lankan authorities on his return to Colombo airport because his 2008 arrest ended without his being charged with involvement with the LTTE and his 2011 detention (even if legal) did not lead to any prosecution. Even if he would face problems on a return to his village, he could re-establish himself and his business in Colombo where he would not face any significant risk of persecution or abuse:

"Scarring

21. The appellant will return to Colombo as a young Tamil man who has scars. TK says that given that there is a specific focus of interest in tracking down LTTE cadres, it is reasonable to assume that where there are other significant factors in play this would bring an applicant to the attention of the authorities. A body inspection becomes more likely and the discovery of scarring consistent with battle related injuries may intensify the risk of arrest, detention and subsequent ill treatment. The appellant will be clothed and his scars will not be visible. Scarring is only an issue if there are other factors which would bring the appellant to the attention of the authorities in Sri Lanka either at the airport or subsequently in Colombo such as being wanted on an outstanding arrest warrant or a lack of identity. The appellant is not wanted on any outstanding arrest warrant. There is no evidence before the tribunal that he cannot establish his identity upon return. And the appellant will return on an emergency travel document which is evidence of his identity. Once in Colombo the evidence is that failed asylum seekers in Colombo without an ID card should be able to obtain one on production of a birth certificate which is easy to obtain. If the appellant is strip searched his scars are manifestly not battle scars and there is nothing about the scarring per se to suggest the appellant has been involved in LTTE activities.

Previous record as a suspected or actual LTTE member or supporter

22. There will be a previous record showing the appellant was suspected of being an LTTE supporter who was acquitted by the courts and not rearrested or detained on LTTE grounds thereafter. A check by the authorities at the airport will establish that the appellant was suspected of and then acquitted of LTTE involvement in 2008 and that he subsequently got on with his life, married and ran a successful fisheries business in Sri Lanka and had no further interaction with the authorities in respect of anything connected with the LTTE. In 2009 when TK was decided the tribunal accepted the evidence of Dr Smith that given the increasing sophistication of the Sri Lankan authorities and their record keeping, it was reasonably likely that records would contain indications of the level of security threat an individual was considered to post. The appellant remained in Sri Lanka until August 2011 living through the war and the defeat of the LTTE by the Sri Lankan authorities. At no point does the appellant claim that he was ever arrested following his earlier 2008 detention on account of any suspected LTTE activity and I conclude that the appellant is not considered to pose a threat by the Sri Lankan authorities on any LTTE basis and will not be seen as such upon his return."

9. His asylum appeal was therefore dismissed. The Article 8 claim was not seriously pursued in the First-tier Tribunal and is no longer in issue.
10. The consideration of SA's asylum appeal up to and including by the Upper Tribunal has proceeded on the basis of the country guidance contained in TK. That has now been superseded by the country guidance decision in GJ which was handed down on 5 July 2013 after Pitchford LJ had refused permission for a second appeal on a consideration of the papers. The grounds of appeal have been amended and the point of principle on which Longmore LJ gave permission for a second appeal was settled by counsel who appeared for SA on the oral renewal of the application for permission. This is whether the Court of Appeal (or the Upper Tribunal) in reviewing the determination of the First-tier Tribunal may have regard to new country guidance promulgated since the First-tier Tribunal hearing. The significance of the new country guidance according to the amended grounds of appeal is said to be that the Upper Tribunal in GJ found that returned asylum seekers would be required to return to their home areas and not to reside in Colombo.
11. As mentioned earlier, the Secretary of State resists this amended ground of appeal on both jurisdictional and factual grounds. Mr Hays for the Secretary of State points out that appeals to the Court of Appeal from the Upper Tribunal are limited to points of law arising from the decision of the Upper Tribunal: see Tribunals, Courts and Enforcement Act 2007 s.13(1). The same goes for appeals to the Upper Tribunal from the First-tier Tribunal under s.12 of the 2007 Act. The power of this Court under s.14(2) to set aside the decision of the Upper Tribunal and to remit the case to the Upper Tribunal or to re-make the decision depends on finding (to use the words of s.14(1)) "that the making of the decision concerned involved the making of an error on a point of law".
12. Country guidance decisions, whilst determining the rights of the parties to the actual decision, are no more than a compilation and statement of evidence relevant to the position of asylum seekers from the country in question. They therefore provide a convenient guide to the likely treatment of asylum seekers in that jurisdiction but they are no more than a judicial assessment of the probative value of the evidence on which they are based and are not intended to exclude other relevant evidence which the parties in particular cases are able to adduce. For present purposes, it is important to emphasise that they are no more than factual summaries updated from time-to-time to record material changes in the position on the ground. A change in country guidance is in no sense a change in the law: see NM and others (lone women – Ashraf) Somalia CG [2005] UKIAT 00076 at [140].
13. It is therefore difficult to see how the decision of the Upper Tribunal in this case which was based on a consideration of the then most recent country guidance contained in TK, coupled with the case-specific evidence produced by SA himself, can be said to contain an error of law by reason of it not having considered the then unpublished material now set out in the decision of GJ. A fact-finding tribunal may, of course, commit an error of law if it bases a particular finding on no evidence or makes an assessment of the issue it has to decide which is contrary to the only possible conclusion which could reasonably be reached on the admissible evidence: see Edwards v Bairstow [1955] 3 All ER 48. But the decision of the Upper Tribunal in this case was clearly open to it on the factual material that it had to consider and it is difficult to see how the Upper Tribunal can be said to have fallen into error by failing to consider material that was not before it and which may in part relate to a state of affairs that post-dates its decision. This is not a case where there has been a material but subsequent change in the law with the result that the decision of the lower tribunal can now be seen to have proceeded on the basis of a misdirection. I would therefore dismiss the appeal on the basis that there has been no error of law.
14. In these circumstances it is, I think, both unnecessary and inappropriate to express any view about the content and scope of the guidance contained in GJ and, in particular, as to whether it would have made a material difference to the decision of the Upper Tribunal or the First-tier Tribunal had it been available for them to consider. As Mr Hays accepts, SA does have a remedy in the present circumstances in the form of being able to make further submissions to the Secretary of State under Immigration Rule 353 based on the new country guidance. It will be for the Secretary of State to give proper consideration to those submissions and to any material matters contained in GJ in deciding whether SA has a fresh claim.

Lord Justice Moses :

15. I agree.

Lord Justice Laws :

16. I also agree.