England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		19th May 2005

1. MR JUSTICE MITTING: The claimant is a 33 year old woman and a citizen of Sri Lanka.
2. She arrived in the United Kingdom by air, carrying false papers on 12th June 2004. On 14th June she claimed asylum. She was interviewed by immigration officers on 18th June. By a letter dated 24th June, her claim was refused. In the same letter, the Secretary of State certified the claim was clearly unfounded under section 94(3) of the Nationality Immigration and Asylum Act 2002. The effect of the certification was that she was not entitled to appeal against refusal to an immigration adjudicator. He reaffirmed his decision in the light of further representations on 11th October and 21st January 2005.
3. By these proceedings, the claimant sought permission to challenge the decision and certification by judicial review. On 21st February 2005 Evans-Lombe J gave permission on the papers, limited to a single ground. That ground reads:

"Could an Adjudicator conclude that the Claimant falls in to one of the categories of potentially 'at risk' individuals identified by the IAT in the country guidance case of PS v Secretary of State for the Home Department [2002] UKIATOO439 namely those 'closely associated with internal LTTE schism as supporters of Colonel Karuna."

Inevitably the debate before me has ranged a little wider than the narrow confines of that question. But it is that question which I propose essentially to answer.

4. Section 94(3) provides:

"If the Secretary of State is satisfied that an asylum claimant or human rights claimant is entitled to reside in a State listed in subsection (4) he shall certify the claim under subsection (2) unless satisfied that it is not clearly unfounded."

Sri Lanka is now a country listed in subsection (4). Subsection (2) provides:

"A person may not bring an appeal to which this section applies in reliance on section 92(4) if the Secretary of State certifies that the claim or claims mentioned in subsection (1) is or are clearly unfounded."

5. PS was a country guidance case. As such it has an identified status within the hierarchy of Immigration Appeal Tribunal decisions. That status was considered by the Tribunal in NM & Ors (Somalia) a Country Guidance [2005] UKIAT0076 by a Tribunal presided over by the President, Ouseley J. At paragraph 140 the Tribunal observed:

"These decisions are now denoted as 'CG'. They are not starred decisions. Those latter are decisions which are binding on points of law. The requirement to apply CG cases is rather different: they should be applied except where they do not apply to the particular facts which an Adjudicator or the Tribunal faces and can properly be held inapplicable for legally adequate reasons; there may be evidence that circumstances have changed in a material way which requires a different decision, again on the basis that proper reasons for that view are given; there may be significant new evidence which shows that the views originally expressed require consideration for revision or refinement, even without any material change in circumstances. It may be that the passage of time itself or substantial new evidence itself warrants a re-examination of the position, even though the outcome may be unchanged. It is a misunderstanding of their nature, therefore, to see these cases as equivalent to starred cases. The system does not have the rigidity of the legally binding precedent but has instead the flexibility to accommodate individual cases, changes, fresh evidence and the other circumstances which we have set out."

I accept and acknowledge that statement of principle as an accurate statement of the status of country guidance cases. For present purposes the status of PS is not challenged.

6. Miss Jegarajah indicated, at the start of her submissions, that she would seek, if necessary, to widen the ground of challenge by renewing the application for permission to argue that matters have changed since PS was decided and that in certain respects it should not be treated any longer as authoritative guidance on the situation in Colombo. But she has not pressed that argument, having been invited by me to confine her argument to that for which she has leave. For present purposes, therefore, PS is to be treated as effective current country guidance.
7. It is therefore necessary to see what guidance was in fact given in the case. The facts are not directly relevant save to say they did not involve anyone in the position of this claimant. I will in due course give greater detail of her predicament. But, for present purposes, she can be described as an intelligence operative within the faction of LTTE that followed Colonel Karuna after the schism.
8. In paragraph 57 of PS the Tribunal observed:

"As we have indicated, the issues for our decision are two-fold. Firstly, whether as a matter of fact on the totality of the evidence, there is a real risk that the LTTE would pose generally a threat to Tamils in Colombo who are at potential risk in their home areas. Secondly, if so, whether that risk is one in respect of which the state in any event provides a sufficiency of protection so as to negate any need for surrogate international protection."

The Tribunal then went on to look at whether there was a potential risk of the LTTE in Colombo. It observed in paragraph 59:

"We accept that it is physically possible for LTTE members to travel to Colombo although, in times when they have provoked public concern by their actions there, they would face heightened security measures, albeit not the scale of the former cordon and search operations regularly carried out prior to the ceasefire. Nevertheless, it is clear that they do not choose to do so on an indiscriminate basis in order to find all those against whom they may harbour some suspicion. There is simply no evidence to support such a proposition. What the careful analysis made by Miss Richards clearly demonstrates is that those who are reasonably likely to be targeted 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 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. As Professor Good finally conceded, the respondent [that is PS] does not fall into any of those categories."

In paragraph 61, in a passage discussing paragraph 212 of the UNHCR report of April 2004, the Tribunal observed:

"As a matter of fact, it is clear on looking at the totality of the evidence that its attacks [that is to say attacks on the LTTE] are limited to high profile targets."

9. In paragraphs 67 and 68 of the decision, the Tribunal observed that the authorities in Colombo had made genuine and, in substantial part, effective efforts to investigate and combat crime in Colombo, including politically motivated killings. In paragraph 71, the Tribunal stated:

"As we have already observed, those whom the LTTE has on the objective evidence targeted in Colombo since the ceasefire have all been high profile opposition activists, or those whom they would see are renegades or traitors of the LTTE. Whether it could be successfully argued that even those of so high a profile would not be provided with a sufficiency of protection in Colombo in the Horvath sense, may be doubted, but what seems to us quite clear on the background evidence is that there is no arguable basis for saying that the Sri Lankan State does not provide a sufficiency of protection to the generality of Tamils having a localised fear of the LTTE in their home area who do not reach similar high profile."

I believe that I have referred to all of those passages in the judgment of the IAT in PS, in which it deals with those who were, in its view, at some risk of being targeted for assassination by the LTTE.

10. The words used by the Tribunal are not entirely consistent. In some passages emphasis is laid on the high profile of targeted individuals. In others, the targets are broken down into three categories. First, those who were in political opposition to the LTTE in high profile positions. Secondly, LTTE defectors. Thirdly, supporters of Colonel Karuna. Miss Richards submits that the emphasis is on high profile targets and that on a proper reading of the decision, it is only high profile targets who are at risk.
11. I do not agree. It seems to me that both in paragraphs 59 and 71 of the decision which I have cited, the Tribunal is careful to break down those who are at risk into three categories which they and I have specifically identified. Those who were supporters of Colonel Karuna at least after the schism potentially fall into two of those overlapping categories- renegades or traitors to the LTTE and supporters of Colonel Karuna. Potentially, a very small number will fall into the third category: those with a high profile as well.
12. It does not seem to me, for present purposes, the Secretary of State would be entitled to assume or I would be entitled to assume that the IAT in PS decided only that those with a high or prominent profile in Tamil affairs were potential targets in Colombo.
13. In a nutshell, the decision in PS, at the very least leaves that question open and acknowledges that some at least of the individuals who are not high profile, are at risk even in Colombo.
14. There is no difficulty about the test for certification. It is most recently and authoritatively set out in R v Bagdanavivicius [2004] INLR 163. In the judgment of Auld LJ at page 190. The test can be stated in one of two synonymous ways:

"...if the claim cannot on any legitimate view succeed, it is clearly unfounded"

and

"...the claim 'is so wholly lacking in substance that the appeal would be bound to fail'".

These are, from the point of view of the decision-maker, high threshold tests.

15. I now turn to the facts to see whether the Secretary of State could properly have certified this claimant's claim to asylum and to Human Rights protection as clearly unfounded.
16. In doing so, Miss Richards acknowledges that it is right that both the Secretary of State and I should have in mind material and developments that have occurred since the claim was originally certified on 24th June. Accordingly I propose to take into account not only the material put before the Secretary of State for his consideration on that date but also the material which has been put in since.
17. The facts can be stated reasonably briefly. They are, for present purposes, assumed to be as stated by the claimant in her interview with the immigration officers on 18th June, as supplemented by three letters put in by her since that interview. I emphasise that that is the assumption that is made for present purposes and will or would not bind any subsequent immigration judge, hearing the matter on the merits. In a nutshell, the Secretary of State would be free at such a hearing to challenge the authenticity of the documents and to investigate the credibility of the claims made and account given by the claimant. But for present purpose, the facts are as follows. The claimant is a Tamil. She joined the LTTE following the death of her husband in 1998 or 1999. She received three months' training in the political wing. She was then sent to Kokkathyicholai camp where she served as an intelligence operative. She received training in the use of grenades but never fought.
18. She describes the position that she held in paragraph 6 of her witness statement, a statement which was not available to the Secretary of State when he made his original certificate:

"When I was with the LTTE I was gathering information and intelligence and passing them to Colonel Karuna. Further, I had direct contact Colonel Karuna and his commanders and some of whom have now been killed. This would put me in the category of high risk individuals."

She went on to state that she believed that she was a high level operative in the LTTE's intelligence team and would be considered as such an important person by the LTTE. She remained at the camp for 5 years. It seems her main duties were to spy upon or to report back the activities of the Sri Lankan regular Army.

19. The Kokkathyicholai camp was in the area of North Eastern Sri Lanka, controlled by Colonel Karuna from Batticaloa. A power struggle occurred in March and April 2000 between the main body of the LTTE led by Prabakaran and a faction led by Colonel Karuna which resulted in fighting and the defeat of Colonel Karuna's faction in April. On 12th April Colonel Karuna told his supports to flee. The claimant fled in a group, which included Milvania and Premmini, both high ranking LTTE officials. The claimant fled in the first place to her uncle's house in Ariyampathi, where she stayed until 2nd May 2004. She left when a colleague was killed by the main faction and stayed at the houses of friends of her uncle in various towns in central Sri Lanka. After about three weeks she reached Colombo where she stayed for three days. She did not seek the aid of the government authorities there. While she was engaged upon her flight to Colombo, three letters were issued by LTTE commanders demanding her presence at interview in increasingly peremptory terms.
20. Her uncle made arrangements for her to travel to the United Kingdom, which she did, departing Colombo on 9th June 2004. I have already recited the circumstances of her arrival.
21. In his decision letter of 24th June 2004 the defendant reviewed, extensively, material then available about conditions in Sri Lanka and in particular the position of former members of the LTTE. He concluded that the claimant would not be at risk of persecutory treatment in Colombo. Much of the letter deals with the effects of events related by the claimant, which occurred in 1998 and 1999 and are of no relevance to this application. The heart of the challenged part of the decision letter is the Secretary of State's conclusion that there was a sufficiency of protection for claimant in Colombo. The claimant, he concluded, for present purposes correctly, was not at risk from the authorities; and that they would afford protection against the activities of the LTTE.
22. In paragraphs 35 and 36 of the decision letter, the Secretary of State said:

"In light of the above [that is to say the material extensively reviewed] it is considered that a sufficiency of protection does exist in Sri Lanka. With regards to your problems with the LTTE in Sri Lanka, in order to bring yourself within the scope of the United Nations Convention, you would have to show that the problems you face from the LTTE were not simply the random actions of individuals but were a sustained pattern or campaign of persecution directed at you which was knowingly tolerated by the authorities, or that the authorities were unable, or unwilling, to offer you effective protection. This has not been established in your case. You could and should have attempted to seek protection and redress through the avenues made available to you by the authorities of Sri Lanka before seeking international protection.

36. You have said that the leader of the LTTE Prabaharan wants you, as you collected information for Colonel Karuna. It is noted that the information that you were given related to the position of the Sri-Lankan army, and their patrol routes, and not to Prabaharans activities."

The letter then went on to give instances in which the government authorities enforced the rule of law. Paragraph 37 concluded:

"It is noted that your involvement with the LTTE was on a low level basis and thus it is the opinion you could and should have approached the authorities in order to seek protection from the rival LTTE members who you say were after you."

23. Paragraph 42 identified parts of Sri Lanka where in the view of the Secretary of State, the claimant would receive sufficiency of protection, namely Colombo, Negombo and Kandy. He rejected the claim under Article 2 of the European Convention on the same grounds.
24. The question which I have to consider is whether on the assumed facts I have recited the claimant cannot on any view succeed or that her claim is so wholly lacking in substance it is bound to fail. I have found this a far from easy question to answer. This case, in my view, comes very close indeed to the borderline. But for the features that I am about to identify, I have no doubt that the Secretary of State's certification was lawful, rational and should be upheld. The features that is, in my view, just take this case out of that category are these: first, the claimant was an intelligence operative; secondly, after the schism, she did, by leaving with Colonel Karuna and other senior officers associate herself with him for a significant period. That association could have led the majority faction to view her as a loyal supporter of Colonel Karuna and not merely, as is the case in many apparently similar cases, simply as someone caught up in a schism not of their own making and with which they did not wish to associate themselves; thirdly, she agreed with Milvania and Premmini, respectively the women's brigade commander and a member of the women's political main board of the LTTE, both of whom are, on the material which I have seen, undoubtedly high ranking or high profile people within the LTTE; fourthly, there is evidence that she was sought by the LTTE on her flight south; fifthly, there is evidence, in the form of the three letters of 28th and 30th May and 4th June 2004 of an increasingly insistent command by the LTTE main factions commanders that she report for interview; and sixthly, there is the report of Professor Smith, to which I have not yet referred. Professor Smith is a reputable and knowledgable expert in Sri Lankan affairs. He is Consultant Director at the International Policy Institute in King's College London. He has extensive contacts in Sri Lanka and he has tendered advice to the government of Sri Lanka and to the Metropolitan Police Service in London. He has visited Sri Lanka, including making a recent visit following the Tsunami. He says, in paragraph 42 of a report dated 23rd November 2004 that:

"The LTTE is targeting military intelligence personnel who are believed by them to be at the forefront of link between the security forces and Colonel Karuna separatists. Given the assiduous nature of the LTTE bureaucracy it would not have been difficult for LTTE to isolate all the homes of the Karuna supports even though many would have been known to gather."

He makes a number of observations about the claimant's position, which are criticised by Miss Richards and were criticised by the Secretary of State as being general and unsupported. That is a fair criticism. But it is a criticism which cannot be put to the test until it is tested by cross-examination. The position at the moment is that I do not know whether or not Professor Smith has got the chapter and verse which would demonstrate the truth of his propositions or, like Professor Good in PS, he would be compelled by a careful cross-examination to retreat from the positions that he has advanced. His conclusion, in paragraph 48, in relation to this claimant's position, is striking:

"I have only so far compiled handful of expert witness reports. However the case against returning Miss Thulasimalar [That is Miss Sinnarasa] to Sri Lanka is one of the most compelling I have come across to date."

We do not of course know how compelling the other cases were. Again, cross-examination would no doubt reveal that fact.

25. Those features seem, when taken together, to raise the possibility -- no more than that -- but a possibility which cannot be dismissed as unfounded, that this claimant's claim, if heard by an Adjudicator, would succeed.
26. For those reasons, I quash the certificate of the Secretary of State, leaving the claimant free to pursue her remedy to the Asylum Immigration Tribunal by way of appeal.
27. MR JUSTICE MITTING: Have I got the claimant's name wrong or right?
28. MISS JEGARAJAH: In Sri Lanka if you are a girl you go by your first name, so I would be Miss Shivani.
29. MR JUSTICE MITTING: Right. I will leave the explanation in then.
30. MISS JEGARAJAH: I wonder if I could have the courtesy of a certificate.
31. MR JUSTICE MITTING: Yes.
32. MISS JEGARAJAH: You have it.
33. MR JUSTICE MITTING: Your application is only for public funding assessment. Is that right?
34. MISS JEGARAJAH: Yes, and I also ask for costs so that the costs are reinstated by the Secretary of State.
35. MR JUSTICE MITTING: You are seeking one government pocket to pay another?
36. MISS JEGARAJAH: So there is more in the pot for other asylum seekers.
37. MR JUSTICE MITTING: Miss Richards, do you resist that?
38. MISS RICHARDS: My Lord, I do not resist a partial costs order. I would resist a whole costs order, because the material that was produced and the defence that had to be mounted to that material really went far beyond the ground of challenge of which there was permission. So for that reason I would invite the Court to make a partial costs order, not 100% in the claimants favour.
39. MR JUSTICE MITTING: What portion do you suggest?
40. MISS RICHARDS: 50%.
41. MR JUSTICE MITTING: The point in principle is a fair one, is it not? You have succeeded on the ground on which you were given permission but sought to widen the attack in a way that I have not thought it necessary to deal with.
42. MISS JEGARAJAH: It is a fair proportion.
43. MR JUSTICE MITTING: Your proportion?
44. MISS JEGARAJAH: 50%.
45. MR JUSTICE MITTING: I order that the defendant pay 50% of the costs of the claimant, to be the subject of a detailed assessment, if not agreed. There will be a public funding assessment of the claimant's costs.
46. Miss Richards, I think I have to ask you whether you seek my permission to appeal to the Court of Appeal?
47. MISS RICHARDS: Might I, for the sake of formality seek it, without raising any particular argument in support of it. That point needs me to come back in the event that the Secretary of State decides to takes matter further. I have no instructions to take it further. To take the belt and braces approach is prudent. I ask for that.
48. MR JUSTICE MITTING: I understand the position. I think for the reasons I have expressed, this is a one-off case, rather than one of general guidance. Consequently, in the belief that I am not arguably wrong, I refuse your application for permission.