England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		08/11/2013

Mr Justice Blair:

1. This is a claim for judicial review of a decision of the Upper Tribunal. The decision in question is a refusal to grant the claimant permission to appeal against a decision of the First-tier Tribunal rejecting his appeal against the refusal of his claim for asylum by the Secretary of State for the Home Department ("SSHD"). The decision was made on 28 July 2011. The claim is brought with the permission of Stadlen J given on 9 May 2012. The parties then agreed to a stay pending the latest country guidance on Sri Lanka given by the Tribunal in GJ and others (post civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC), which explains why it has taken so long to come on for hearing.
2. The background is that the claimant is a Sri Lankan ethnic Tamil born in 1973. Fingerprint records show that he arrived in the United Kingdom via Calais on 21 December 2008. He did not claim asylum, and was refused entry. He claims to have arrived in the United Kingdom on 8 September 2010. On 21 October 2010 he was encountered by immigration officers while working, and on 8 December 2010, he claimed asylum.
3. The basis of his asylum claim was that, while not a member, he had assisted the LTTE between 1993 and 2006. He claims to have been arrested, detained and tortured on three occasions by the Sri Lankan authorities on suspicion of LTTE involvement. The three occasions were in 2008, 2009 and 2010. His case was that he feared persecution on return to Sri Lanka on the grounds of his imputed political opinion.
4. Asylum was refused on 21 January 2011. His appeal was heard at the First-tier Tribunal on 10 March 2011, and by a decision dated 14 April 2011 his appeal was dismissed by Immigration Judge Omotosho.
5. On 12 May 2011, Immigration Judge Peart refused permission to appeal. On 28 July 2011, in the two stage procedure adopted in the Upper Tribunal, permission to appeal was further refused by Senior Immigration Judge Warr. It is this latter decision that is the subject of this claim for judicial review. In short, the claimant's case is that it was unlawful for the Upper Tribunal to refuse permission because, it is said, permission was refused on the basis that, although there was an arguable error of law in the First-tier Tribunal's decision, any error was not material because the appeal would not have succeeded in any event. The Upper Tribunal thereby, it is submitted, applied the wrong test.
6. These judicial review proceedings were filed on 14 November 2011. On 25 January 2012, James Goudie QC sitting as a deputy High Court Judge refused permission on the papers.
7. The matter came before Stadlen J on 9 May 2012 on a renewed application for permission. He said: "It seems to me arguable, and that is all that needs to be shown, that the second limb of the Cart test is satisfied, namely that there is some other compelling reason".
8. In doing so, he was directing himself in accordance with R (Cart) v Upper Tribunal [2012] 1 AC 663. It was held by the Supreme Court that a rational and proportionate restriction upon the availability of judicial review of the refusal by the Upper Tribunal of permission to appeal to itself was provided by the second-tier appeals criteria. This is to the effect that permission shall not be granted unless "(a) the proposed appeal would raise some important point of principle or practice; or (b) there is some other compelling reason for the relevant appellate court to hear the appeal". The procedure in respect of applications for judicial review of non-appealable decisions of the Upper Tribunal following Cart is now found in CPR rule 54.7A(7). However, this rule did not come into force until 1 October 2012 and is not applicable to the present case.
9. Neither counsel addressed the Cart criteria in their written or oral arguments. This was because it was common ground between them that the Cart test applies only to the permission stage, and does not limit the approach of the court at the substantive hearing. This submission is derived from the decision in R (HS and others) v Upper Tribunal [2012] EWHC 3126 (Admin). This decision was handed down on 28 November 2012, and so after the permission hearing in the present case.
10. In short, in HS v UT, Charles J held that the Cart criteria must be applied at the permission stage in a case such as the present. If permission is given, the criteria no longer have a role in the substantive decision. The authorities founding that conclusion are cited in his decision, and I need not repeat them, since I agree with it.
11. I raised with counsel the fact that Stadlen J decided no more than it was arguable that the Cart criteria applied in this case. There has not actually been a decision that the criteria do apply. It was pointed out to me that the same position had obtained in HS v UT, where it was dealt with in a pragmatic way by treating the Cart criteria as in fact satisfied on the basis that such an approach was favourable to the claimant. With some hesitation, I consider that this is the right way to proceed in this case as well. On that basis, I have to consider whether the decision of the Upper Tribunal refusing permission to appeal was flawed by applying the well established grounds for judicial review. In that regard, I accept that a factor to be taken into account is that the judges of the First-tier and Upper Tribunal have specialist expertise in this jurisdiction (see AH (Sudan) v SSHD [2008] 1 AC 678 at [30], Baroness Hale).However, in that case, as in this case, permission had been given on the basis of arguability. That case is authority for the proposition that this is the wrong approach. In a case of this kind, permission can only be given if the cart threshold is crossed. If it is, the cart criteria fall out of the picture. In the present case, counsel invited me to follow the same course as that followed by Charles J. Effectively, it results in treating as final a view expressed only on an arguable basis. Nevertheless, it is to the advantage of the claimant, and with some hesitation, I have decided that it would be right to take that course.

The decision of Judge Omotosho

12. The appeal took place on 10 March 2011. The appellant was represented, and gave evidence, and called witnesses. The judge's findings were as follows. She said that she had no reason to doubt that one of the claimant's brothers was killed in 1986 by the army as a result of assisting the LTTE, and that his father was arrested and detained in 1986. On the breakdown of the ceasefire in 2006, she found it credible that the appellant might have feared for his safety and fled to an LTTE controlled area. She had no reason to doubt his claim that he may have been stopped by the authorities and suffered harassment.
13. As to his case that he was arrested by the Sri Lankan authorities in August 2008 following his escape from the LTTE, the judge said that he offered no credible explanation as to why he should have returned to a government controlled area where he feared he would be of adverse interest to the authorities. She noted that the claimant has horrific scars on his body, mainly on his back. Despite her doubts as to the true circumstances, she accepted as credible the claimant's claim that he was arrested and detained in 2008, and suffered injuries resulting in the scars.
14. His evidence was that his arrest took place on 28 August 2008, and that he was released on 7 December 2008. The judge accepted that he secured his release by the payment of a bribe. She agreed with the SSHD that this was an indication that the authorities had no further interest in him (applying country guidance cases such as LP [2007] UKAIT 00076).
15. The judge noted that the claimant claimed that he left Sri Lanka with the assistance of an agent in December 2008 with the intention of travelling to Canada. Home Office fingerprint records show that he arrived in the UK on 21 December 2008 via Calais using a false German identity card. He was returned to France a day later. The judge found that the continuing denial by the claimant that he had attempted entry to the UK using false documents undermined his credibility.
16. The claimant's case was that he went to another country before he was sent back to Sri Lanka. The judge said that she had no reason to disbelieve his claim that he was returned to Sri Lanka in January 2009 and that on his return he was questioned by the authorities and was again detained and interrogated.
17. There then comes the finding as to the circumstances of his release which is the basis for the present judicial review. In that regard, I shall quote what the judge said in paragraph 74 of her decision:

"The appellant claims in his witness statement that his release was secured on the payment of a bribe to the police and as such although he was taken to court, he was released unconditionally without criminal charges by the court. However, in oral evidence before me, he stated that he was released on bail by the court. This account is clearly inconsistent with the earlier account. I am more inclined to believe and the objective evidence would appear to confirm this that it was reasonably likely that the appellant on his return to Colombo was initially detained by the authorities for further questioning in light of his deportation from another country and lack of documentation. He was taken in for further questioning but was later released after it was concluded that he was not of interest to the authorities. This conclusion is supported by the fact that the appellant himself had claimed that he was released without charges by the court".

18. The claimant's case was that following that release, he was again detained by the authorities in March 2010 for 5 months. He said that the CID had been looking for him from the time he returned to Sri Lanka. On this occasion also, his case was that he was able to secure his release again by payment of a bribe.
19. As regards this third claimed period of detention, the judge found that it was not credible that the CID would have been looking for him at his home at a time when he claimed he was in detention by the authorities. He had said that he returned home to his wife and children on his release, and then later moved to his uncle's place for fear of further arrest. He claimed that it was whilst he was there in March 2010 that the army came and arrested him. The judge found that, bearing in mind that he had said that he had earlier been released without charge by the court, it was incredible that he would have been arrested for what appears to be no reason.
20. The claimant relied on a letter issued by the Human Rights Commission of Sri Lanka dated 4 August 2010 certifying that his wife had lodged a complaint on 11 March 2010 regarding his disappearance. He said that his uncle had helped him to obtain the letter. However the judge found that he had been unable to offer any credible explanation as to how his uncle was able to find out about the complaint, and she gave it very little weight. Although he said that during this detention he suffered some of the injuries and scars, the judge was not satisfied that he had been truthful in respect of this part of his claim.
21. The claimant's case was that he arrived in the United Kingdom on 8 September 2010. The judge said that, "Despite claiming to be a person in genuine need of international protection, I find it as damaging his credibility his failure to claim asylum on his entry to the UK in 2010 at the earliest opportunity. I do not believe his claim that he had not known that he could seek the protection of the UK authorities earlier. He had commenced employment and would not have brought himself to the attention of the authorities if he had not been apprehended. Even following his temporary release, there was delay in his claiming asylum. I find that the claimed detention and ill-treatment in 2010 by the Sri Lankan authorities is an after thought to bolster his asylum claim. I do not accept that this appellant is of interest to the Sri Lankan authorities as claimed in his home area or other parts of Sri Lanka". Accordingly, she dismissed the appeal.

The decision of Judge Peart

22. The claimant sought permission to appeal on the basis that Judge Omotosho erred in fact. It was submitted that the judge was wrong to find inconsistency in the claimant's accounts of his release from his second detention in 2009. This was because of question 184 of the asylum interview of 6 January 2011. He was asked, "Did you pay a bribe for your release?" he answered, "They took me to court from there and I was bailed from the courts. My brother paid 50000 rupees and someone else paid 80000 as bail money". It was submitted that the fact that the claimant had been released on bail, meant that the investigation pending against him had not been concluded.
23. The issue therefore was whether the judge was entitled to find inconsistency between the claimant's oral evidence that he was released on bail, and his witness statement where he says that he was released without charge. In his reasons, Immigration Judge Peart noted that Judge Omotosho did not find the claimant credible with regard to core elements of his claim or that he would be at risk on return. He quoted the claimant's statement of 9 March 2011 prepared in connection with the appeal hearing. This says, "When I was in detention my release was arranged through the payment of bribe. As the bribe was paid to the authorities they took me to the court. At the court government police did not put any charge on me as they received bribe money for my release. Therefore I was released by the law court without charges …".
24. As to the claim that Judge Omotosho had been wrong to find inconsistency in these circumstances, he said that: "Whilst the Immigration Judge may have erred in that she did not mention that the appellant said at interview Q 184 that he was released on bail, what he said in his statement at paragraph 5 contradicted that interview record and the appellant's oral evidence, such that I find the error is not arguably material. As the Immigration Judge correctly identified, the appellant's oral evidence was inconsistent with the earlier account at paragraph 5 of his statement; it was clear from paragraph 5 of the appellant's statement that no charges were outstanding such that the Immigration Judge was entitled to come to the conclusion she does …".
25. He went on to deal with risk of return, saying that the judge carefully assessed that risk particularly with regard to the claimant's scarring, but concluded that he would not be at risk on return. His conclusion was that the judge was entitled to take the approach she did and in doing so made no arguable error of law. The evidential basis of her findings was sufficient for reaching conclusions open to her on the evidence.

The decision of Senior Immigration Judge Warr

26. On 28 July 2011, Senior Immigration Judge Warr refused permission to appeal adopting the reasoning of Judge Peart. He said that he was not satisfied that Judge Omotosho "in what is on the whole a very careful and fully reasoned determination was led into arguable legal error by her observations in paragraph 74…".

The parties' contentions

27. The claimant submits that it was unlawful for the Upper Tribunal to refuse permission on the basis that, although there was an arguable error of law in the First-tier Tribunal's decision, any error was not material because the appeal would not have succeeded in any event. He submits that once it was accepted that there was an arguable error in the First-tier Tribunal's approach, the threshold which the claimant had to meet in order to be granted permission was extremely low. He relies on the Upper Tribunal's Presidential Guidance Note No 1, which states that: "PTA should only be refused on the basis that the error was immaterial, if it is a plain case that the error could have made no difference to the outcome. … Disputes about materiality are best left to the appeal process itself rather than summarily determined by refusal of permission".
28. The claimant submits that the ground for appeal was that Judge Omotosho erred in finding that the claimant's account of his release after his second period of detention in Sri Lanka was inconsistent, in particular because she overlooked the consistency between his oral evidence and what he had said at his asylum interview. For an error of law to be material, it only has to be shown that the outcome could have been different if the error had not been made, in other words that the outcome was not inevitable (IA (Somalia) v SSHD [2007] EWCA Civ 323).
29. The claimant submits that once it was established that there was an arguable error of law in Judge Omotosho's decision, it had to be shown only that it was arguably possible that her decision would have been different without error. In asylum cases, reviewing tribunals and courts should be particularly slow to find that arguable errors are not material, especially where they relate to credibility. Judge Omotosho manifestly could have allowed the appeal if she had not erred. The adverse findings which she made all flowed from the finding that the claimant had contradicted himself over the circumstances of his release from detention following his return to Sri Lanka. Had the judge accepted that he was released on bail after he paid a bribe, rather than being released because the authorities had no further interest in him, there is a strong possibility that she would have accepted that he had been detained again in 2010 and/or that he was at risk for having jumped bail. On this basis, the claimant submits that he is entitled to a declaration that the decision of the Upper Tribunal to refuse permission to appeal against the decision of the First-tier Tribunal was unlawful, and an order requiring it to grant such permission.
30. The SSHD argues as follows. It is accepted that a factual error in the determination of the tribunal, if material to its conclusion, can constitute an error of law. Reference is made to R (Iran) [2005] EWCA Civ 982 at [9]-[10] in this regard. This, it is submitted, makes it clear that it is necessary to ask whether the error of fact was arguably material so as to constitute an error of law. In assessing this question, it is necessary to ask whether the error of fact would have affected the outcome. It was perfectly open, the SSHD submits, to Judge Omotosho to find inconsistency between the oral evidence of the claimant and his witness statement.
31. Further, the SSHD submits that the outcome of her determination was that the judge rejected the claimant's claim to have been detained in 2010 and tortured. Any assessment of materiality must have regard to all the factors bearing on that finding. That was not only her conclusion as to the claimant's account of his release in 2009, but also the "little weight" that she attached to the letter from the Human Rights Committee which had been obtained on behalf of the claimant, and her assessment of the medical evidence. The SSHD submits that the claim for judicial review should be dismissed.
32. In written submissions, the claimant said that the claim should not be dismissed on the basis of GJ and others (post civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) (the latest country guidance case). However, neither party pursued this point at the hearing, and I do not need to make findings on it.

Discussion and conclusion

33. It is not in dispute that Judge Omotosho's decision is a careful one which analyses the evidence before her, written and oral, and correctly identifies the legal principles that she had to apply. In particular, she gave careful consideration to the scarring on the claimant's body which was an important part of this case. The judge accepted that it was reasonably likely that he had been detained in 2008 and suffered scarring because of his ill treatment in detention.
34. However, in various respects, the judge did not regard the claimant's evidence as credible. She did not find it credible that he would have left the protection of the LTTE to return to a government controlled area where on his case he would likely be of adverse interest to the authorities. She regarded his denial that he had previously attempted entry to the UK using false documents as undermining his credibility given the fact that fingerprint evidence proved the contrary. As regards his failure to claim asylum on his entry to the UK in 2010 at the earliest opportunity, she did not believe his claim that he had not known that he could seek the protection of the UK authorities earlier.
35. The challenged aspect of her decision is paragraph 74 in which she records that whereas in oral evidence the claimant said that he was released on bail by the court following his detention, in his witness statement he said that his release was secured on payment of a bribe and he was released without charge. The claimant's case is that the judge overlooked the fact that in his asylum interview he said that he was "bailed from the courts".
36. However as was accepted in oral argument, the judge was correct in the inconsistency she identified. In one account, the claimant says that he was released on bail, and in the other, he says that he was released without charge. She was entitled to treat this as a material difference. She had the COIS Report before her (as recorded in paragraph 16), and there is no reason to suppose that she was not aware of its contents so far as release on bail without charge is concerned. As the SSHD points out, the report does not refer to the situation that pertains when a bribe is paid to obtain release, and it was not the claimant's case that he was subject to reporting conditions.
37. Against that background, it can be appreciated why Judge Peart said that the judge "may have erred" in not mentioning what the claimant said at interview. I do not think it is correct to characterise this statement, as the claimant does, as an acceptance by Judge Peart that there was an arguable error of law. What he accepted was that Judge Omotosho ought arguably to have referred to the asylum interview, since this gave an account of the claimant's release that was consistent with his oral evidence. However, Judge Omotosho's point remains, which is the inconsistency with his witness statement.
38. The claimant's case is that the judge's rejection of the claimant's alleged detention in March 2010 for five months flows directly from what the "error". I agree with the SSHD that this is not a fair reading of her judgment. The judge gave three reasons for her rejection of the claimant's claim in this regard. First, since he said he had been released without charge in 2009 she found it "incredible" that he would have been arrested in 2010 for what appeared to be no reason. Second, she rejected the evidence of the complaint letter issued by the Human Rights Commission of Sri Lanka dated 4 August 2010. The claimant's case was that his uncle had helped him obtain the letter. However, the judge said that he had not been able to offer a credible explanation as to how his uncle was able to find out about the complaint which had been made by his wife. Third, the judge did not accept the medical evidence so far as it supported his claim to have been ill-treated during a third period of retention. In short, she was "not satisfied that the appellant has been truthful in respect of this part of his claim".
39. The judge was not obliged to mention every point in giving her reasons, and in so far as the fact that she did not mention what was said in the asylum interview is properly characterised as an error, I agree with the SSHD that the Upper Tribunal was entitled to find that it was not arguably material. The approach it took is consistent with the Guidance Note and the President's decision in Anoliefo (permission to appeal) [2013] UKUT 00345 (IAC). I further accept that on that basis, there was no arguable error of law—see in this respect ML (Nigeria) v SSHD [2013] EWCA Civ 844 at [10] (Moses LJ) and at [16] (Sir Stanley Burnton).
40. This was an anxious case, but it was considered with care by Judge Omotosho. She heard the claimant give evidence, and believed him on some points, but not others, and reached the conclusion she did on substantial grounds. I am not persuaded that the Upper Tribunal was wrong to refuse permission to appeal, or that it applied the wrong test, and in those circumstances, this claim does not succeed. I am grateful to the parties for their assistance, and will hear them as to any consequential matters.