ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge Kekic
Strand, London, WC2A 2LL
B e f o r e :
SIR STEPHEN RICHARDS
| KK (Sri Lanka)
|- and -
|Secretary of State for the Home Department
Claire van Overdijk (instructed by the Government Legal Service) for the Respondent
Hearing date: 7 February 2019
Crown Copyright ©
Sir Stephen Richards:
The factual history
The material reasoning of the FTT
"67. I have now to assess whether the appellant faces a risk on return to Sri Lanka at the present time. This assessment includes the fact that it was found in the appellant's previous appeal that he had not come to the adverse attention of the Sri Lankan authorities before leaving the country in 2000. Then there are my own findings that the appellant has had some involvement in the BTF in the UK including attending some demonstrations but has not played a prominent or significant role in the organisation. He has a conviction and prison sentence for smuggling Tamils into the UK as part of a criminal gang that used an extensive European network. His name and photograph has been publicised internationally including in Sri Lanka. There is also a possibility that the appellant will be identified with his elder brother who was an LTTE member captured by the authorities at the end of the war.
68. The CG case of GJ & Others (post-civil war: returnees) Sri Lanka  UKUT 319 sets out the guidance on risk of return to Sri Lanka. The relevant matters for this case are the following headnotes:
"(7) The current categories of persons at real risk of persecution or serious harm on return to Sri Lanka, whether in detention or otherwise, are:
(a) individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they are, or are perceived to have a significant role in relation to post-conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka.
(8) The Sri Lankan authorities' approach is based on sophisticated intelligence, both as to activities within Sri Lanka and in the diaspora. The Sri Lankan authorities know that many Sri Lankan Tamils travelled abroad as economic migrants and also that everyone in the Northern Province had some level of involvement with the LTTE during the civil war. In post-conflict Sri Lanka, an individual's past history will be relevant only to the extent that it is perceived by the Sri Lankan authorities as indicating a present risk to the unitary Sri Lankan state or the Sri Lankan Government.
(9) The authorities maintain a computerised intelligence-led 'watch' list. A person whose name appears on a 'watch' list is not reasonably likely to be detained at the airport but will be monitored by the security services after his or her return. If that monitoring does not indicate that such a person is a Tamil activist working to destabilise the unitary Sri Lankan state or revive the internal armed conflict, the individual in question is not, in general, reasonably likely to be detained by the security forces. That will be a question of fact in each case, dependent on any diaspora activities carried out by such an individual."
69. This CG case of GJ was decided on the basis of an amount of evidence of circumstances in 2012-2013. It is submitted that the situation in Sri Lanka has significantly changed since then and that this is reflected in the recent Country Information and Guidance, Sri Lanka: Tamil Separatism Version 3.0 August 2016. The relevant passages include the following:
- "Returning Tamils from abroad continue to be arrested at the airport" [para 6.5.1]. Being "questioned on arrival by CID, SIS and TID" about "whether they have been involved with one of the Tamil Diaspora groups" is, like the torture of detainees, "routine" [para 6.10.3]. They are "particularly subject to screening" [para 6.5.2].
- "A security force insider testified that since the presidential election in 2015 that military intelligence officials from Joseph Camp were actively looking for any Tamils returning home from abroad in order to interrogate them. The witness said that the intention was to abduct, detain and torture them" [para 6.5.2].
- The 2016 ITJP also reported: "During interrogation by the security forces several victims were falsely accused of working to restart the LTTE or of bringing the country into disrepute" [para 6.6.8].
- The 2016 ITJP reports on the profile of those tortured: "Tamils with tenuous links to the LTTE or low-level cadres continue to be targeted, along with their families" [para 6.6.3]. "Tamils returning from abroad continue to be arrested under the PTA on suspicion of old LTTE involvement" [para 6.5.5].
70. The question before me is whether this recent background information signifies such changes to the risk to returnees as to justify a departure from the CG case of GJ. It has been observed in other cases, that country guidance is not inflexible and it must be applied by reference to new evidence as it emerges. In KS (Burma) 3012 EWCA Civ 67 it was held that in order to depart from a CG case there needs to be cogent and reliable evidence that the appellant would face risk.
71. Again, after careful consideration of all the evidence including the recent CIG published in August 2016, I have reached the conclusion that there is sufficient cogent and reliable evidence that failed asylum seekers currently returning to Sri Lanka may be at real risk on suspicion of having actual or perceived LTTE connection or involvement in the past. This is different from the evidence that was before the Upper Tribunal in 2012-2013 in the CG case of GJ. And whilst the appellant may not have come within the risk categories of GJ, I have reached the conclusion that on the basis of this new background information that there is more likely than not a real risk to the appellant on return to Sri Lanka at the present time. This is based on the findings set out above which are cumulative: he will be returning as a Tamil from the North after 16 years absence and as a failed asylum seeker. He has been convicted for being involved in a criminal gang smuggling Sri Lankan Tamils into the UK through a network of contacts across Europe. He has had involvement with the diaspora in the UK including attending demonstrations that took place in two European capitals."
The reasoning of the UT
"10. The judge allowed this appeal because she considered that the appellant would be at risk on account of being a Tamil, a failed asylum seeker, absent for a long time, convicted of smuggling Tamils into the UK and involved in attending two demonstrations in European capitals. She based her conclusion on four citations from the respondent's August 2016 Information report on Sri Lanka. These essentially report on the continuing interrogation of Tamils at the airport and the targeting of their families. Contrary to Mr Paramjorthy's submission [Mr Paramjorthy appeared at that stage as counsel for the appellant], there is no mention in the judge's conclusion of the appellant's brother's involvement in the LTTE and this does not appear to have been included as a risk factor.
11. A judge is of course entitled to depart from country guidance on the basis of fresh evidence however where a departure is based on a single report, one would expect the judge to do more than rely on a limited portion of it. Mr Bramble [Senior Home Office Presenting Officer] is right to point out that overall the report does show many positive developments and the judge was obliged to consider those along with the sections singled out at paragraph 69 of her determination. I fully accept Mr Paramjorthy's submission that judges are not expected to go through every paragraph of a report and comment on it. That is not what the respondent is suggesting. Nor is this an issue of giving weight to the evidence, as suggested in Mr Paramjorthy's submissions. The respondent's complaint is that apart from the sections cited, the judge completely disregarded the rest of the report thereby providing an unbalanced picture of the situation in Sri Lanka. I wholly agree with that view. The judge should have summarised both the positive and negative aspects and then reached a conclusion. She failed to do so. That amounts to an error of law. As the asylum and article 3 conclusions were based on this flawed approach, I must set aside the decision to allow the appeals on those grounds."
The country guidance in GJ
"(2) The focus of the Sri Lankan government's concern has changed since the civil war ended in May 2009. The LTTE in Sri Lanka is itself a spent force and there have been no terrorist incidents since the end of the war.
(3) The government's present objective is to identify Tamil activists in the diaspora who are working for Tamil separatism and to destabilise the unitary Sri Lankan state enshrined in Amendment 6(1) to the Sri Lankan Constitution in 1983, which prohibits the 'violation of territorial integrity' of Sri Lanka. Its focus is on preventing both (a) the resurgence of the LTTE or any similar Tamil separatist organisation and (b) the revival of the civil war within Sri Lanka.
(4) If a person is detained by the Sri Lankan security services there remains a real risk of ill-treatment or harm requiring international protection.
(6) There are no detention facilities at the airport. Only those whose names appear on a 'stop' list will be detained from the airport. Any risk for those in whom the Sri Lankan authorities are or become interested exists not at the airport, but after arrival in their home area, where their arrival will be verified by the CID or police within a few days."
"… Attendance at one, or even several demonstrations in the diaspora is not of itself evidence that a person is a committed Tamil activist seeking to promote Tamil separatism within Sri Lanka. That will be a question of fact in each case, dependent on any diaspora activities carried out by such an individual."
The Home Office's Country Information and Guidance ("CIG")
"2.3.6 Since the country guidance case of GJ & Others was handed down in 2013, a new government, led by President Maithripala Sirisena came to office in January 2015, following which there have been some positive developments in Sri Lanka, such as the element of fear has considerably diminished in Colombo and the South, and the restoration of the legitimacy and independence of Sri Lanka's Human Rights Commission. (See: Human Rights Issues).
2.3.7 The 'white van' abductions that operated outside all norms of law and order are now seldom reported. The number of torture complaints has reduced but new cases of Tamil victims continue to emerge and police reportedly often continue to resort to violence and excessive force. (See: Torture/ill-treatment).
2.3.10 Despite the improvements made to date, there continue to be reports – albeit at much lower numbers – of abductions, torture complaints and police use of excessive force against Tamils perceived to support the LTTE. It is too early to assess whether the improved situation on the ground has been significant and durable to the extent that decision makers should depart from GJ & Others."
"6.5.1 … Written statement submitted by the Society for Threatened Peoples, a non-governmental organization in special consultative status to the UN Human rights council, Ongoing oppression of minorities in Sri Lanka, 4 September 2015, stated that: 'Returning Tamils from abroad continue being arrested at the airport. The surveillance of the civil society in the North and East is remaining high'.
6.5.2 The Immigration and Refugee Board of Canada reported in February 2015 that: 'Sources report that individuals returning from abroad are particularly subject to screening'. A July 2015 International Truth & Justice Project (ITJP) Sri Lanka report on Sri Lanka's Survivors of Torture and Sexual Violence 2009-2015 stated that: 'A security force insider testified since the presidential election in 2015 that military intelligence officials from Joseph Camp were actively looking for any Tamils home from abroad in order to interrogate them. The witness stated that the intention was to abduct, detain and torture them'.
6.5.5 The International Crisis Group noted in an August 2015 report that: 'Tamils returning from abroad continue to be arrested under the PTA [Prevention of Terrorism Act] on suspicion of old LTTE involvement. According to some reports, after police detention, many are sent to the military-run rehabilitation program. Tamil politicians and activists allege that secret detention centres established by the old government continue, though officials deny this."
"6.6.3 The International Truth and Justice (ITJP) report, Silenced: survivors of torture and sexual violence in 2015, published in January 2016, stated:
'The Sirisena government in Sri Lanka was elected one year ago, on 8 January 2015, on a promise of change. In September 2015 at the Human Rights Council in Geneva the Government of Sri Lanka sketched out a plan to deliver post-war accountability …. On paper the plan looks impressive but the reality on the ground in the former conflict areas tells a very different story. Human rights violations by the security forces continue with impunity and a predatory climate against Tamils prevails. Tamils with tenuous links to the LTTE or low-level cadres continue to be targeted, along with their families. Victims and witnesses rightfully fear that coming forward will endanger their lives and those of their families.
6.6.7 The ITJP also stated in the report that they had taken 'sworn statements' from 20 victims, who, all but one were subjected to abduction in a 'white van', unauthorised detention, repeated torture and sexual violence. Five of the abductions took place after the August 2015 parliamentary elections; fifteen were after the January 2015 presidential elections ….
6.6.8 Looking at the profile of those who were abducted, the ITJP report, added:
'During interrogation by the Sri Lanka security forces several victims were falsely accused of working to restart the LTTE or bringing the country into disrepute by talking about what happened in the war and its aftermath …
'In some cases the interrogators showed the victims print outs of photographs of themselves or people close to them attending recent Tamil diaspora commemorative events abroad ….
"6.10.3 … The spokesperson from the DIE [Department of Immigration and Emigration] stated that returnees may be questioned on arrival by immigration, CID, SIS and TID. They may be questioned about what they have been doing whilst out of Sri Lanka, including whether they have been involved with one of the Tamil Diaspora groups. He said that it was normal practice for returnees to be asked about their activities in the country they were returning from."
The rival submissions
Lord Justice Floyd: