(Immigration and Asylum Chamber) Appeal Number: AA 09886 2011
THE IMMIGRATION ACTS
Heard at Field House
On 8 May 2013 and 18 June 2013
On 5 July 2013
UPPER TRIBUNAL JUDGE PERKINS
tHE EXISTING ANONYMITY ORDER IS CONTINUED
For the Appellant: On 8 May 2013 Mr N Paramjorthy, Counsel, instructed by Vasuki Solicitors
On 18 June 2013 Ms A Walker, Counsel instructed by Vasuki Solicitors
For the Respondent: On 8 May 2013 Mr T Melvin, Senior Home Office Presenting Officer
On 18 June 2013 Ms Z Kiss, Senior Home Office Presenting Officer
Interpreter: On 8 May 2013 Mr U Muraleetharan (English/Tamil)
DETERMINATION AND REASONS
1. The appellant is a citizen of Sri Lanka. She was born on 20 April 1969 and so is now 44 years old. She appeals the decision of the respondent on 23 August 2011 to remove her from the United Kingdom. It is her case that she is a refugee or otherwise entitled to international protection. The appeal has previously been determined unsatisfactorily. A decision of the First-tier Tribunal was set aside by Upper Tribunal Judge Spencer and Deputy Upper Tribunal Judge Pickup on 24 September 2012. The reasons for that decision have been served on the parties and are appended to this Determination.
2. There had been an aborted hearing in March and the case came before me to be decided on 9 May.
3. Mr Paramjorthy asked me to adjourn the case. He said that the Tribunal would be assisted by waiting for country guidance which is understood to be imminent, the appellant wanted to provide better medical evidence and she wanted to obtain a proof of evidence from her husband to call him to support her case.
4. There was no good reason for the appellant not having obtained evidence from her husband on an earlier occasion. The medical evidence was potentially interesting because Mr Paramjorthy explained that he hoped to instruct a medical practitioner who would be able to indicate if the scars that are clearly on the appellant’s body were inflicted when the appellant was benefiting from anaesthesia. I accept that Mr Paramjorthy would not suggest without good reason that in some circumstances a medical practitioner could give such evidence. I recognise that it is important because it is plain that the appellant is scarred. If the scarring was inflicted under anaesthesia then it is unlikely to be the result of torture. If the appellant was not in any way anaesthetised when she sustained the wounds that led to the scars then it is, at least arguably, easier to believe that the scars were the result of torture, as she claims, rather than the result of a dishonest attempt to enhance her case. However there was no good reason for this not having being done on any earlier occasion. The appellant has been represented throughout by experienced solicitors and competent counsel, even though Mr Paramjorthy had only been instructed shortly before the hearing. Further the application was essentially speculative. There was no reason why the suggested evidence could not have been done before and it is not the function of an appeal to create endless opportunities for an appellant to improve her case. If, as I was told, medical evidence could be obtained very quickly and it is helpful to the appellant then it could support a fresh application if necessary.
5. There is no knowing when country guidance will in fact be promulgated or if it will in fact be helpful in this case.
6. Putting all these things together I found no just reason to adjourn and I decided to continue with the hearing.
7. In the end I could not complete the hearing on 8 May. This was because Mr Paramjorthy wanted to adduce further evidence on a narrow point. Mr Melvin had no objection to the evidence being received but then said he needed at least two weeks to prepare a response. Having agreed to receive the further evidence from the appellant it was right to give the respondent reasonable time to address the points raised. I gave suitable directions and arranged for a further hearing.
8. In accordance with those directions Mr Paramjorthy served a report from “Freedom from Torture” dated 13 September 2012 and part of the Country of Origin Information Report dated 18 February 2012 and Mr Melvin served Written Submissions on 17 May 2013. On 18 June 2013 neither party made oral submissions.
9. Mr Paramjorthy made it plain that this is not a case where the appellant relied on Article 8 of the European Convention on Human Rights. Her stay in the United Kingdom has been quite short and her husband had been refused asylum. If the appellant does not need international protection then removing her would be a proportionate interference with the minimal private and family life established in her short stay in the United Kingdom. It was helpful of Mr Paramjorthy to make this concession. It does not assist anyone for my time to be taken dealing with grounds of appeal that can, at best, be described as extremely optimistic.
10. It is for the appellant to prove that she needs international protection but it is sufficient if she shows that there is a real risk of her being persecuted or otherwise seriously ill-treated in the event of her return.
11. It should not be necessary to say but for the avoidance of doubt I make it plain that I have not reached any conclusions about this case without having first considered all of the evidence in the round, including the bundles provided by the parties, and if, for example, the order in which I consider the evidence or some comment I make when setting it out suggests to the contrary then that suggestion is wrong.
12. I have the benefit of a full skeleton argument from Mr Melvin as well as the written submissions mentioned above. Mr Paramjorthy had prepared a skeleton argument but it was incomplete. He was happy to rely on the skeleton argument prepared for the First-tier Tribunal by Miss P Gandhi who represented the appellant at the First-tier Tribunal and his own grounds of appeal.
13. The papers show that the appellant claimed asylum on 4 April 2011. She said that she had entered the United Kingdom on 14 March 2011 using a false passport.
14. I have found it helpful to begin my analysis by considering the Reasons for Refusal Letter dated 23 August 2011 which included a summary of the appellant’s claim.
15. The appellant identified herself as an ethnic Tamil. Before leaving Sri Lanka she had lived in Kilinochchi.
16. Between 1996 and 1999 she had worked for the LTTE teaching children maths and religion and sometimes cooking for them but poor health stopped her working with children.
17. The appellant married in 2000. Her husband worked as a carpenter for the LTTE until 2004 when he stopped because he became ill.
18. In 2007 her husband was arrested by the army on suspicion of being in the LTTE. He was detained for three days before being released.
19. As a result of the war the appellant and her family adopted a peripatetic lifestyle. On 16 May 2009 the appellant moved into Ramanathan Army Camp with her children, her mother-in-law and her father-in-law. On 31 May 2009 she was arrested with ten to twelve other people on suspicion of being in the LTTE. She was taken to Babumaddu Camp where she was held until February 2011. She was questioned during that stay and burned with an iron bar and cigarettes and she was raped. She signed a statement written in Tamil.
20. In February 2011 she gave the address of her husband’s uncle to one “Sashi” to give to the EPDP who organised her escape. She said that on the night of 20 February 2011 she told the guard she was going to use the toilet but in fact she jumped over a fence where a van was waiting for her with her children and her husband’s uncle. She was driven to Negombo where she remained until 14 March 2011. An agent then arranged passports for her and the children and on 14 March 2011 she flew from Negombo to a Muslim country where she stayed for about an hour and a half before flying to the United Kingdom.
21. She said she feared arrest by the army because she had worked for the LTTE and had escaped from detention.
22. The respondent found it damaging to the appellant’s credibility that she did not claim asylum on arrival. It was her case that she had arrived in the United Kingdom on 14 March 2011 but did not claim asylum until 4 April 2011. Nothing had happened in the United Kingdom to change her need for international protection and although she claimed to have travelled to the United Kingdom with an agent it was her case she had been reunited with her husband on the day that she arrived. Her husband had previously claimed asylum in the United Kingdom and according to the respondent:
“it is considered reasonable to expect you to have sought international protection at the first opportunity. Your failure to do so is seen as damaging to your credibility.”
23. The respondent acknowledged that it was the appellant’s case that she had been involved in work for the LTTE at an LTTE camp in Skanthapurram in Kilinochchi (interview questions 3-4) but the respondent referred to background material showing that from September 1996 until 1998 Kilinochchi was under Government control. The respondent did not accept that the appellant could have worked at an LTTE camp in Kilinochchi between 1996 and 1999 because, for most of that time, the LTTE were not in control of Kilinochchi. The respondent found that this (she said) unbelievable claim seriously undermined the appellant’s credibility and did not accept that the appellant had worked for the LTTE at all.
24. However the respondent noted that even if the appellant was telling the truth, on her own case she had stopped working for the LTTE in 1999 and had had no problems with them when the LTTE resumed control of her home area.
25. The respondent accepted her claim to have been taken to the Ramanathan Camp in Chettykullam because this claim was inherently plausible in the light of the background material. However the respondent did not believe the appellant’s claim to have been arrested by the army and taken to Babumaddu Camp on 31 May 2009 until February 2011 when she escaped. The main reason for this was that, according to the Country of Origin Information Report, the Sri Lankan rehabilitation and prison reforms minister stated that the last of the female detainees were released in October 2010.
26. In the circumstances the respondent did not accept that the appellant had been detained and ill-treated at all.
27. The respondent was unimpressed with the photographs showing the appellant to have burn marks on her chest at the top of her breasts, which she attributed to cigarette burning, and on her back, which she attributed to burning with an iron rod. According to the respondent the appellant had given inconsistent evidence about the occasion when she was burnt with an iron rod. According to the respondent the appellant had said that she was burnt immediately on arrival at the detention centre in May 2009 and later that she was burnt in October 2009. This inconsistency was seen as a sign of dishonesty.
28. There was no medical evidence to help date the occasion when the appellant was burnt with cigarettes.
29. The appellant had claimed to have been raped during detention on two or three occasions but was unable to give details of the incidents or say with any kind of precision when they occurred. She claimed to have fainted on each occasion. There was no medical evidence from a medical practitioner in the United Kingdom to confirm that she had made an allegation of rape and she was not believed.
30. The respondent did not believe the appellant’s account of escaping by claiming to need to use the lavatory and then fleeing from the guard. It was the appellant’s case that the guard did not escort her from the room where she was detained to the lavatory and did not see her jump over the fence. The respondent found such casualness inconsistent with the claim that she was kept in a locked room.
31. Neither did the respondent believe that a camp used to detain suspected LTTE activists would be protected solely by a fence about the same height as the appellant made from leaves and sticks which is what she claimed. The respondent was satisfied that, for example, Manik Farm Camp was surrounded by barbed wire. The respondent did not accept that similar protection did not exist at the appellant’s alleged place of detention.
32. Further if the were any truth in the appellant’s story then the respondent did not accept that there would be any record of her detention. It could be assumed that military officials would have to explain how a suspected LTTE activist escaped from their custody. If there was any truth at all in the appellant’s story then it could be assumed that there was no real interest in the appellant. Whilst bribery may have hastened her release the Authorities had no interest in her and would not want to create difficulties for themselves by leaving records that identified her as an escaped suspect.
33. Unsurprisingly, given these findings, the respondent found the appellant had not proved her case.
34. Against this background I consider how the appellant actually advanced her case.
35. She responded to a screening interview identifying herself as a Sri Lankan Tamil who followed the Hindu religion. She gave apparently straightforward answers about her travel to the United Kingdom using a passport obtained in a false identity by an agent. Her fingerprints had been taken by the army in Sri Lanka but not by any other organisation or person.
36. The appellant identified her husband and confirmed that they were now living together in the United Kingdom and that he had applied for asylum in 2008.
37. The appellant was interviewed about her application on 13 April 2011. I have read the interview. Some of the answers have to be considered with particular care because, Mr Paramjorthy submitted, the interview record did not support some of the points taken by the respondent.
38. The appellant said that her husband worked as a jobbing carpenter doing work for the LTTE. He was arrested by the army in 2007. She could not remember the month. He was arrested and detained for three days. In May 2009 the appellant with her children and parents-in-law moved to the Ramanathan Camp but her husband did not move there with them. Someone identified the appellant to the army as a person that worked for the LTTE. She “screamed and cried” when she knew the army had discovered her past. She said the army told her that she was being taken for questioning and would be released but they did not release her. They tortured her and beat her and wrote a statement in Tamil for her to sign. She was told then that she would be released after two weeks (question 67) but she was not released.
39. She said that she was arrested on 31 May 2009 and taken to the Babumaddu Camp where she was detained with five or six other people in one room.
40. The questions and answers at 79 and 80 had become important and I set them out below:
Question: “What happened when you first got to Babumaddu Camp?”
Answer: “They heated iron rod and burned me on the back. People who did not sign the statement which they wrote.”(sic)
Question: “So before you were questioned you were burnt with an iron rod?”
Answer: “After questioning I was burnt with a heated iron rod.”
41. She confirmed at question 81 that the first thing that happened at the camp is that:
“We were kicked and beaten. They used abusive language, they pulled our hair, I had long hair, they cut it short.”
42. She explained that during questioning they suggested to her that her husband was an LTTE activist. She then explained how she was made to look at “dirty photographs on a phone.” If she was reluctant to cooperate she was slapped. She said that she was raped on two or three occasions and on each occasion one or two people were involved. She fainted. She received no medical attention in Sri Lanka and did not seek advice when she came to the United Kingdom. She confirmed she had not been tested to see if she suffered from any sexually transmitted disease.
43. She was asked about the marks on her chest which were shown in a photograph. She said in answer to question 93:
“I refused to behave indecently with me so they burnt me with cigarette”.
44. She said the marks on her back were the result of burns inflicted when she was reluctant to sign a document.
45. There was only one occasion when she was burnt with a cigarette and one occasion when she was burnt with an iron rod.
46. She said that “everyone” was asked to sign a document. In her case she was asked to sign after she had been in detention for four or five months.
47. At question 101 the appellant was asked:
“How long had you been in detention before you were burned?”
The appellant replied:
“In January 14, because they were discussing about the Thaipongal.”
48. The appellant then confirmed that this happened in 2011. Mr Ulageswar (the interpreter) explained that Thaipongal is a Tamil word to describe a traditional or religious agricultural festival on 14 January every year.
49. However in answer to question 103 the appellant said that she was burnt with an iron rod in October 2009. This, I note, is consistent with the chronology indicated in answer to question 98 when she said that she refused to sign a document four or five months after being detained at the end of May 2009.
50. The appellant said that she was raped in 2010 but could not identify the month. Asked to describe the rape she said that four or five people were present but only one raped her. She described how she was undressed by those present and watched. She said of one of the attackers: “he kissed me everywhere, then he raped me.” She said she fainted.
51. She claimed not to notice if the subsequent rapes were carried out in the same way on each occasion. She then explained that the method was different but she fainted every time. I set out below question and answer at 111.
Question: “Were you raped in the same way each time?”
Answer: “I couldn’t notice because already I was sick, my body was very weak. The rape was different but every time when it happened I fainted.”
52. The appellant had only signed one document.
53. She then explained how she escaped from custody. She explained that one Sashi Accar was a detainee in the camp who said that she could arrange for the EDDP to help. Sashi Accar was detained with the appellant. She explained that it was arranged that a van would be waiting for her. She was taken into the van and hidden under a seat and then taken to the forest where another van was waiting. Her parents-in-law and children were waiting in the van with her. She said she did not know her parents-in-law’s whereabouts but she knew an address where her husband might be and that turned out to be correct. She said that the EPDP were working for money and other people had been approached. Sashi approached the appellant because they were close. She said they spent time together. She believed Sashi was more influential than was the appellant.
54. In answer to question 136 the appellant said:
“There were so many girls but this girl speaks to me more and I also speak to her”.
55. I find this answer hard to reconcile with the appellant’s account of being in contact only with the small number of people who shared her room or cell.
56. She explained that she escaped on 20 February 2011. She claimed she was going to use the separate toilet for detained people. The toilet was close to the fence. The fence was her height and she was able to climb and jump the fence.
57. The appellant said it was normal to be allowed to go to the toilet at night unaccompanied by a guard. She claimed that she jumped over the fence at a time when no guard was with her so she was not seen. She explained that a van was waiting.
58. The appellant gave details about her departure from Sri Lanka. She said that she feared return because she would be arrested having been identified as a person who escaped.
59. She was asked if she could explain why Sashi had not escaped if she was able to arrange for the appellant’s escape. The appellant said that she was able to escape because her family had money.
60. Her husband left Sri Lanka in September 2009. He had been arrested and tortured and he decided to go. She could not return to live with her family because she had escaped.
61. The appellant made a statement dated 27 September 2011.
62. The appellant said she came to the United Kingdom on 14 March 2011 and instructed her legal representatives on 16 March 2011. The representatives tried to make an appointment for her to claim asylum but could not make contact with the necessary authorities until 21 March 2011. She denied that she had delayed claiming asylum.
63. She did not accept that the fall of Kilinochchi to government control from 1996 to 1998 undermined her claim to have worked for the LTTE in Kilinochchi between 1996 and 1999. She said that the LTTE overran the army in 1998 (this claim is supported by the background material) and that she continued to work for the LTTE at the camp throughout the time that the LTTE controlled Kilinochchi town during 1996 and 1998.
64. She disagreed with the assertion that all female prisoners had been released in October 2010 as claimed by the Minister for Rehabilitation and Prison Reform. She insisted that she was detained until February 2011 and that many people linked to the LTTE were detained at secret, or unknown, camps.
65. She denied there was any inconsistency in the chronology about when she was burnt with an iron rod.
66. She had claimed not to be able to remember all the dates when things had happened.
67. She had not registered with a GP when she came to the United Kingdom.
68. She thought that the guard that who made it possible for her to use the lavatory unsupervised had agreed to facilitate in her escape but she did not know. She relied on Sashi Accar whose instruction she followed.
69. She said at paragraph 17 of her statement:
“Of course there are barbed wire and fence around the camp. We cannot jump over that fence. I was driven outside in hiding in the van. When I was dropped at the bush I got into the other van and dressed like a Muslim woman. They drove to Negombo.”
70. She said that it was not recorded fully in the asylum interview. She said she had explained at interview there were two vans involved and this had not been picked up.
71. The appellant gave evidence before me and adopted her statement which itself adopted the answers given at the interview and screening interview subject to certain clarifications. She was not asked further questions by Mr Paramjorthy but she was cross-examined.
72. She was asked if she could explain why her husband had not mentioned her working for the Tamil Tigers when he made an asylum claim even though he had mentioned his nephew and sisters working for the LTTE. The appellant replied:
“I do not know that application was made by my husband, I do not know why he did not want to mention it”.
73. I say here that I think this must be the complete answer to that question. Firstly I am not in a position to evaluate the premise on which the question was based. I have not seen the file relating to the appellant’s husband. I have not seen the Record of Proceedings, the statements made or the answers given to questions asked. I do not know if it is right that in his evidence he made no mention of the appellant working for the Tamil Tigers. However even if it is right I do not see how it helps me to determine this appeal. The appellant’s husband was looking after himself and answering questions about his case. If he had mentioned that his wife claimed to have been tortured then the answer might have defeated an allegation of recent fabrication but, unless he claimed to have been present when the alleged torture took place, it is unlikely that he would have been able to give useful evidence about her ill treatment. I did not think it appropriate to exclude such questions in the Tribunal, where the rules of evidence do not apply, but the chances anything relevant emerging from such questions was extremely thin and it did not.
74. Mr Melvin asked if the Sri Lankan Authorities actively looked for the appellant’s family between 1999 and 2009 before the family removed to Ramanathan camp. The appellant answered in the affirmative.
75. The appellant confirmed that she had not produced any documents from Sri Lanka to show the Authorities were in any way looking for her.
76. She was asked questions about her experiences at the Babumaddu Camp. She claimed not to be able to give any indication at all of the size of the camp. She said that she had spent all of her time in a single room with five other people, being let out only to use the lavatory. Given that she had been questioned and, she said, tortured this seemed a rather unlikely answer but Mr Melvin did not investigate this.
77. She was then asked a series of questions intending to illuminate an inconsistency in the appellant’s answers about when she was first tortured. I understand why the questions were put because the recorded answers invited them but I find the assumed premise behind the questions was not justified when the answers are read carefully. Certainly in answer to question 79 (“What happened when you first got to Babumaddu Camp?”) the appellant indicated that she was burned on her back with a heated rod of iron. However in the same answer she made it plain that the burning was connected to not signing the statement that had been written for her. She made it plain in answer to the next question that the burning followed questioning and said in answer to question 81 that the first thing that happened to her was that she was kicked and beaten. In answer to question 98 she indicated that it was some four or five months later after she had arrived that she was asked to sign a statement.
78. I am not satisfied that when the interview was read carefully the appellant had ever made the apparently inconsistent answers relied upon by Mr Melvin.
79. In answer to questions in cross-examination she said she was raped between May and October 2009. It was then pointed out to her that she had said elsewhere that she had been raped in 2010. She said she was confused.
80. Mr Melvin did not ask her why she was uncertain about the number of times she had been raped.
81. The appellant confirmed the document she had to sign was in Tamil. She said that it was showed to her so she could recognise what it was but she was not given an opportunity of reading it.
82. She said all of the prisoners who shared a room with her had been subjected to burning and sexual abuse.
83. She confirmed that she had never been taken before a court or charged with any criminal offence.
84. She claimed to know nothing about all female prisoners being released in 2010.
85. She had received no medical treatment for asthma and epilepsy.
86. She did not know if the person who helped her escape remained in prison after she had gone. She said all of the women detained with her had been asked if they wanted to escape.
87. She was asked about the escape. She said she was met by a driver and she told me that her husband’s uncle and her children were there. She said that the uncle, children and driver had all gone into the camp to collect her from inside the camp. She could not explain why the whole family had gone there.
88. Mr Melvin, correctly because this was his case, put it to the appellant that the burning on her body was not the result of torture by the army but done to enhance her asylum claim. She denied that.
89. She had not had medical treatment in the United Kingdom.
90. She understood the escape cost 10 lakh rupees to arrange.
91. There is a medical report from Dr Zacharias Costa following an examination on 24 September 2011. Mr Melvin was, with some justification, critical of Dr Costa’s report. It is not clear, for example, if Dr Costa is still in regular practice. It is even less clear what expertise he has to support his opinions. However I find this something of a red herring because I do not find the opinions to be controversial. Dr Costa concluded that the scars on her back and top of the breasts were not self-inflicted, and that the scars on the chest were diagnostic of cigarette burns and the other scars were “diagnostic of scars which had been caused in the manner described”.
92. The photographs clearly show what appear to be broad scarred lines in the tissue across the appellant’s back. It is absolutely no surprise whatsoever to know that there is medical opinion that these were caused by burning with a hot rod of some kind. Dr Costa cannot know, and does not claim to know, if they were the result of torture or a procedure to which the appellant voluntarily submitted herself to enhance her claim. The second possibility might seem to be inherently unlikely but it is not impossible and I do not read Dr Costa’s report as excluding that possibility.
93. Although Mr Paramjorthy praised the skeleton argument from Miss Gandhi he was careful to make clear that he included that in his argument and did not adopt it as his argument.
94. I begin by considering the skeleton argument itself.
95. I am not satisfied that I should disbelieve the appellant because there is background evidence that Kilinochchi was under army control at a time when the appellant claimed to be there working for the LTTE. There are two reasons for this. The appellant was never asked to explain where she meant by Kilinochchi. I am satisfied that a rump of the LTTE maintain control of Vanni where fighting took place and that Vanni includes part of Kilinochchi district. Further as it is accepted that the appellant did do some work for the LTTE I do not find this a particularly insightful point.
96. The contention that the appellant cannot be telling the truth because at a time when she claimed to have been imprisoned and tortured all female detainees had been released is potentially a determinative point. I must ask myself exactly what the rehabilitation and prison reforms minister meant when he said, as I am satisfied that he did, that the last of the female detainees were released in October 2010. I have been able to inspect the Country of Origin Information Report dated 4 July 2011. The reference to the “third category above” is the reference to “those with low level LTTE involvement and were believed to number between 3,000-4,000.” These would be released and receive community reintegration.”
97. The appellant of course claimed to be involved in low level LTTE support but to have been suspected of more. The Sri Lankan minister acknowledged that there are up to 4,000 people in this category and I would not expect a minister in Sri Lanka to make up a figure to pander to the Government of the United Kingdom.
98. I felt the weight of Mr Paramjorthy’s submission suggesting that a very large number of people were detained for a time, and that therefore it was hard to accept that every woman had been released by October 2010. However Mr Paramjorthy could not point to any evidence that any women who had been detained in the end of war roundups were detained after October 2010 when the minister said they had all been released.
99. I acknowledge the point in Miss Gandhi’s skeleton argument that the appellant, on her case, was not suspected merely of “low level LTTE involvement” and was not therefore within the category of people who the minister said had been released. If the appellant was suspected of more than low level LTTE involvement then this submission answers the point. It follows that the respondent’s contention that the appellant cannot be telling the truth when she claimed to have been detained after October 2010 is not necessarily right. If I find that the appellant was suspected of more than low level LTTE activity there is nothing in the point.
100. I am not particularly concerned about the apparent delay in claiming asylum. The appellant says she went to a solicitor the day after she arrived in the United Kingdom and a solicitor tried immediately to contact the Authorities in the United Kingdom but was unable to do that until a few days afterwards when the process moved swiftly. If she came to the United Kingdom under the charge of an agent as she alleges then it should not be held against her that she did not claim asylum on arrival. I have no rational basis for discounting the solicitor’s claim that he was not able to make contact with the United Kingdom immigration authorities sooner than he did. In the circumstances I cannot be satisfied that the appellant did delay seeking asylum without reasonable excuse.
101. I must make my credibility findings on an analysis of the evidence as a whole and must not be drawn into circular arguments which would require me to determine whether or not she had a reasonable excuse for not seeking asylum earlier before I determine the credibility as a whole.
102. The skeleton argument suggested that the appellant’s inability to say more about her rape would be the result of trauma. That could be right. She has given some details. I appreciate that some rape victims find it very hard to give an account of their experiences and that shutting down details could be a way of coping with a horrendous assault. I accept that the appellant may have had some difficulty in making initial contact with a medical practitioner. However, whatever (understandable) inhibitions she may feel about discussing rape, she is a mature woman who must know the risk of contracting serious sexually transmitted diseases in the circumstances she described. I find it a troubling feature of the case that she did not specifically ask for tests to confirm she was not suffering from such a disease and her failure so to do is something that I find points against believing her account.
103. The account of the escape is hard to believe. Miss Gandhi submitted that the fence that the appellant was able to jump over was a modesty screen erected around the ablutions block and not the security fence around the camp. If that is right then it does make more sense of the appellant’s claim to have been made to hide within the van. The point is, according to the appellant, that she was taken into the van inside the security fence and then driven out where she met her family. Although this gives some internal logic to the story I still find it deeply unpersuasive. It was the appellant’s account that she was traumatised and ill. I do not see how she could climb a fence with or without attracting the attention of a guard. Neither do I find attractive the idea that a secure camp could have its security so easily breached. The Sri Lankan Authorities are not foolish or childish and the idea of a security being so lax that a suspected LTTE activist could be driven away with no more subterfuge than hiding under the seat is unpersuasive. I find it very hard to believe that part of the story.
104. Mr Melvin in his skeleton argument contended it was incongruous for the appellant to have signed a document in the Tamil language. He said that the evidence suggested that the Sri Lankan Authorities would make a false confession or similar document in the Singhalese language. He speculated that there was no reason for the document to be written in Tamil unless it was for the appellant to see it and understand it. I do not accept this. It was not the appellant’s case in evidence that she did not understand any of it but that she was not given an opportunity of reading it. I do not find it particularly significant that the document was written in Tamil. It is an official language or at least a language very widely spoken and used in Sri Lanka and it was given for a Tamil speaker. It is possible that the Authorities wanted to be able to show that the appellant did understand what she had signed. However I find it more significant that no proceedings were brought as a result of signing that document. This suggests it was either not very incriminating or the Authorities were not very bothered or that it did not happen at all.
105. The additional evidence served by Mr Paramjorthy comprised the document “Sri Lankan Tamils tortured on return from the UK” published by Freedom From Torture and extracts of the COI Report of 18 February 2010.
106. The report considered the position of certain Tamils returned by the United Kingdom and found that a significant number had been interrogated after their return. Six cases involved torture in detention and in at least some of the cases the torture included burning with cigarettes or metal rods.
107. The report draws on an earlier report “Out of the Silence” reported in November 2011. This report postulated that a number of Sri Lankan asylum seekers who reported being tortured by burning and supported their claim with suitable scarring suggested that there was a policy of branding victims which would serve not only as long-term psychological and physical damage but would leave marks that would be easily recognised by interrogators in the event of subsequent detention.
108. The COI Report draws together published reports concerning the lack of support given to displaced civilians. I have no hesitation in accepting that the treatment of people in refugee camps left much to be desired and certainly does not support a suggestion of the Sri Lankan authorities energetically acting respectfully to reintegrate displaced people into mainstream society. Nevertheless the same report, although acknowledging the scale of the problem, records a letter to the British High Commission of 12 January 2010 reporting the government of Sri Lanka intended to free the detainees. It said that about 70,000 civilians had been released in the recent months leading up to January 2010 and that people were being released or removed in large numbers. I have found nothing that expressly undermines the reading of the minister’s comments that all female prisoners were released by October 2010.
109. I found paragraph 21 of Mr Melvin’s written submissions to be particularly helpful and I set them out below. He said:
“The Secretary of State accepts that before and after the end of the war (May 2009) in Sri Lanka the authorities detained many thousands of Tamils in an attempt to find LTTE cadres hiding among the civilian population. The objective evidence above points to men/women up to the age of 35 and some teenage children being of particular interest. It should be noted that the appellant in this appeal was 40 years of age at the time travelling with her aged parents-in-law and her two children. It is accepted in the RFRL that she may have been detained in the Menik Farm set of camps and screened there but, what is not accepted is that she would have been transferred to another camp for further screening. There is nothing in the COI evidence that points to any 40 year old women being burned with hot irons, forced to sign Tamil documents and not charged once the confessions were obtained. There is also little evidence that any women were detained beyond October 2010 and very little evidence showing that the camps where suspected cadres were detained were anything other than high security. It is accepted that some instances of bribery for freedom went on at that time but the objective evidence of the COI report does show that large numbers of Tamils were released soon after and whilst accepted that figures show over 100,000 remained in temporary camps in January 2010 this does not show that any women were still detained a year later in 2011, which is what is being claimed by the appellant.”
110. Concerning the Freedom From Torture report Mr Melvin makes the perfectly fair point that because the claimants are, understandably, anonymised it is not possible for the Secretary of State to investigate the profile of the returned people. Other than showing that Tamils continue to complain of serious ill-treatment including torture and support that claim with marks to the body this does not take matters very far.
111. I remain very troubled about the scarring on the appellant’s body. Somebody, somewhere, somehow has attacked her with hot irons. The appellant has marks on the front of her chest at the top of her breasts and on her back which are highly indicative of her being burned. It flies in the face of all commonsense to think that a woman would submit to that kind of injury voluntarily unless, perhaps, she was under the most enormous pressure to rid herself of life in Sri Lanka. I have reflected very hard on this strand of evidence. It concerns me.
112. Nevertheless I do not believe the appellant’s account of escaping from custody. It is wholly incongruous to me that she would be able to get out as easily as she claims from a place which according to the background evidence was a high security detention facility for suspected LTTE activists.
113. I appreciate there is some evidence that very rich people and high profile operators have been able to bribe their way out of custody but the appellant does not put herself in such a category and there is no reason why I should. Her inability to be more forthcoming about the circumstances of her detention and vagueness in her evidence does not make it any easier to believe.
114. The appellant’s account of being a Sri Lankan Tamil who gave some practical support to the LTTE and who was detained in the aftermath of the war is credible but if that was the extent of her case she would not need protection now.
115. I do not understand why she might have been suspected of more than low level support. I appreciate that it does not follow from this that she was not suspected of such activity. There might be good reasons that are not known to the appellant or the authorities might have made a mistake but it is a gap in the appellant’s case that cannot be ignored.
116. I cannot reconcile her claim to have been of such interest to the authorities that she was taken away to a special camp with her claim to have escaped by climbing a fence to reach an awaiting van that drove her out of the camp. I cannot reconcile the lax security with the alleged heightened interest.
117. Even when I remind myself fully of Mr Paramjorthy’s and Miss Gandhi’s reasoned submissions and the lower standard of proof I do not accept the account.
118. Even if the appellant’s scarring attracts attention in the event of her return it could only prompt enquiry and I do not believe there will be any records adverse to her that would lead to further detention.
119. However I see no reason to find that there is a real risk of her scars being noticed. There is nothing before me to suggest there is a policy of strip searching people on return. I do not accept the mere fact of scars will create any risk.
120. It follows that the appellant has not proved her case and I dismiss the appeal on all grounds.
Judge of the Upper Tribunal
Dated 4 July 2013
The Reasons for Finding an Error of Law are appended to this Determination beginning at page 16.
Upper Tier Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/09886/2011
THE IMMIGRATION ACTS
Heard at Field House
On 14 September 2012
Upper Tribunal Judge Spencer
Deputy Upper Tribunal Judge Pickup
[Anonymity direction made]
SECRETARY OF STATE FOR THE HOME DEPARTMENT
For the Appellant: Mr Paramjorthy
For the Respondent: Mr Nath, Senior Home Office Presenting Officer.
DECISION AND DIRECTIONS
1. The appellant, Mrs V--- T---, [born in 1969], is a citizen of Sri Lanka.
2. This is an appeal by the appellant against a panel determination of the First-tier Tribunal comprising Designated Immigration Judge Lewis and Immigration Judge Lucas, who dismissed the appellant’s appeal against the decision of the respondent dated 23.8.11 to refuse to grant asylum and to give removal directions.
3. Upper Tribunal Judge Spencer granted permission to appeal on 22.2.12. Thus the matter came before us as an appeal to the Upper Tribunal.
Error of Law
4. In the first instance we have to determine whether or not there was an error of law such that the determination of the First-tier Tribunal dated 12.10.12 should be set aside.
5. In summary, the appellant’s claim is that between 1996 and 1999 she had been forced to work for the LTTE at Skanthapurran Camp as a teacher of maths and religion. In 2000 she ceased working for the LTTE because of ‘medical reasons’, and married the same year. She continued to help the LTTE with functions and decorations on another 2-4 occasions. The appellant’s husband worked for the LTTE as a carpenter until 2004, stopping because he had chest pains. The Sri Lankan army arrested her husband in 2007 and she did not see him again until she came to the UK. The appellant and other members of her family were eventually taken to the Ramanthan Camp, where an unknown person informed the army that she and her husband and father had worked for the LTTE. In consequence, she was arrested on 31.5.09 and taken to Babumaddu Camp, where she was beaten, tortured, and raped. She was questioned about her own LTTE activities and those of her husband and her father. The authorities did not believe her account, with the result that she remained in detention for about one and a half years, until, with the assistance of her uncle and her in-laws, she managed to escape on 20.2.11. After some 23 or 24 days in hiding she and her children left Sri Lanka using false passports and flew to the UK.
6. The Grounds of Appeal submit as follows:
(a) That the First-tier Tribunal misunderstood material aspects of the appellant’s claim, amounting to a material error of law;
(b) That the adverse credibility findings as to the appellant’s actual involvement with the LTTE were irrational and amount to a material error of law;
(c) In particular, it is submitted that the Tribunal erred in law in finding that on the basis of the appellant’s actual low LTTE profile the authorities would not have any adverse interest in her and would not have detained her. The Tribunal failed to assess the appellant’s credibility on the basis that she was suspected of LTTE involvement, in respect of which the authorities perceived that she was not telling the truth. The background material demonstrates that mere suspicion of LTTE involvement was sufficient to warrant arrest. In the circumstances, the First-tier Tribunal erred in law in finding that her account of arrest and detention was not credible.
(d) In the circumstances, it is submitted that due to the identified errors of law the findings of fact as to the appellant’s risk on return are materially deficient.
7. In granting permission to appeal, Judge Spencer noted that the First-tier Tribunal found that the appellant was not of previous adverse interest to the Sri Lankan authorities so as to warrant her arrest in May 2009 and detention until 2011 but this was not the reason advanced by the appellant for her arrest and detention. The appellant’s case was that whilst in the Ramanthan Camp she was denounced as having worked for the LTTE, together with her husband and father. On the other hand, the First-tier Tribunal relied on the fact that in his asylum claim the appellant’s husband had not claimed that he had ever been a LTTE member, and the First-tier Tribunal did not believe the appellant’s account of her escape from detention.
8. Judge Spencer noted that whilst, even if the First-tier Tribunal had understood that her claim to have been detained was not on account of her previous LTTE activities, it might be argued that a finding as to whether or not she was detained depended on her credibility, so that the outcome of the appeal would have been the same, it was impossible to determine the likely outcome of the appeal had the First-tier Tribunal approached the appellant’s account on a correct basis, particularly in view of the medical evidence. In the circumstances, it was at least arguable that there was an error of law in the determination of the appeal.
9. In her oral submissions on behalf of the appellant, Mr Paramjorthy submitted that the appellant was not detained because of her actual profile, but because she had been anonymously denounced as she and her husband and father having worked for the LTTE. At questions 79-86 of the AIR, the appellant explained that she told the authorities that for a few months she had done cooking and teaching but later fell sick and stopped working for the LTTE. She also told them that her husband had done some carpentry for the LTTE but fell sick and they moved to Vavuniya. The army disbelieved her, stating that she was lying, and asserted that she had been continuously working for the LTTE.
10. At paragraph  of the determination the First-tier Tribunal found that if the appellant is to be believed she had a very low LTTE profile. That she was able to cease her employment at will reinforced the fact that she could have had no profile of any significance. At para  the Tribunal found that she
, “had no profile at all as a consequence of that service. This must have some consequences for the remainder and substance of her claim.” This was repeated at para . Mr Paramjorthy submitted that the Tribunal erred in approaching the case from the perspective of the appellant’s actual profile rather than that of the authorities who detained her after being denounced and kept her in detention for questioning including torture, beatings and rape, because they did not believe her account. It was submitted that this error led the First-tier Tribunal to conclude that the appellant was neither arrested, nor detained for 18 months, nor tortured as claimed.
11. For the respondent, Mr Nath submitted that one had to look at the determination in its entirety. The appellant was not solely disbelieved on the basis of her profile. The Tribunal considered the credibility of the appellant’s claim as a whole, including the fact that in his asylum claim the appellant’s husband made no reference to any involvement of this appellant with the LTTE, although he asserted that his nephew and sisters were, “in good ranks in the LTTE.” His asylum claim was dismissed as being neither credible nor plausible. Mr Nath submitted that there was a detailed assessment of the appellant’s credibility in the round and that the omission of failing to mention that the appellant was detained because she was pointed out did not go to the heart of the determination. If it was an error of law, it was not material to the outcome of the appeal.
12. For the reasons set out below we find that the First-tier Tribunal did make a fundamental error in assessing the appellant’s case.
13. There is no real dispute about the extent of the appellant’s claimed actual LTTE profile; she allegedly carried out some work in teaching and cooking. However, the Tribunal concluded at para  that even if she did, she had no adverse profile with the Sri Lankan army and authorities. This conclusion is reinforced at para . On the basis that she was able to cease working at a time of her choosing, the Tribunal concluded that she could have had no profile - adverse or otherwise - of any significance either within the LTTE or with the Sri Lankan authorities. At para  the Tribunal stated that this was their foundation for finding that the appellant had no profile at all as a consequence of that service. In stating that, “This must have some consequences for the remainder and substance of her claim,” it is clear that the Tribunal relied on this finding in assessing the balance of the appellant’s claim.
14. Adding the absence of any reference to this appellant’s LTTE work in her husband’s asylum application, at para  of the determination, together with the fact that he did not attend or give evidence in her support at her appeal hearing, at para , the Tribunal went on to conclude, at para , that it was not reasonably likely that the appellant worked for the LTTE as claimed between 1996 and 1999. Her account was not believed, but even if she did perform some role for the LTTE, she had no profile either within the LTTE or with the Sri Lankan authorities.
15. It is implicit in the balance of the determination that the Tribunal assumed that the appellant’s case was that her claimed LTTE profile alleged was the sole reason for her arrest, lengthy detention, and torture. Looked at from that perspective, it is understandable that the Tribunal could not accept that such a lowly profile would have warranted the lengthy detention and horrific treatment as the appellant claims. However, that was a fundamental misunderstanding of the appellant’s case.
16. At no stage did the Tribunal refer to or seem to understand that the appellant’s case that she was detained, not because her claimed actual LTTE profile became known to the authorities, but because she was anonymously denounced as LTTE. Not only was she pointed out as having worked for the LTTE, but the authorities were allegedly told that her husband and father also worked for the LTTE. That, on the appellant’s account, was why she was detained.
17. It is clear from para  that the early erroneous conclusions referred to above directly led the Tribunal to place little weight on the assertion that the appellant was detained for one and a half years and tortured as claimed. As the Tribunal stated at para , “We do not accept that there is any foundation for the proposition that her alleged involvement with the LTTE - if there was one - would have led to her imprisonment at all, still less to a lengthy detention for up to one and a half years. Such detentions connote a degree and intensity of adverse interest that simply would not and did not exist in relation to this appellant… We do not therefore accept that she was detained in 2009 and held for a period one and a half years.” Again, at para , the Tribunal stated, “the problem with this claim is that we do not accept that the appellant was arrested and detained at all.”
18. At para  the Tribunal repeated its finding that the appellant had no profile at all and suffered no adverse attention from the authorities. The Tribunal did not accept that she was detained and ill-treated as claimed and, therefore, she had no adverse profile at any stage prior to her departure from Sri Lanka in 2011.
19. At para  the Tribunal repeated its finding that even if the appellant had the limited involvement with the LTTE that she claimed, it did not accept that such involvement did or would have brought the appellant to the adverse attention of the Sri Lankan authorities. On that basis, the Tribunal stated, “We certainly do not accept that such involvement would lead to a risk upon return in the present circumstances and situation within Sri Lanka in 2011. We conclude that the appellant is at no risk upon return to Sri Lanka. We therefore dismiss the Appellant’s asylum claim.”
20. We find that the Tribunal proceeded to make findings throughout the determination which were predicated on the primary misunderstanding of the appellant’s case. The error effectively infected the rest of the determination. The appellant’s claimed low profile led to a disbelief that the appellant could have been detained, which in turn led to a disbelief that she would be at any adverse risk on return. In effect, the Tribunal led itself from one error to another.
21. It may be that even if the appellant’s claim had been properly understood and considered, it was possible for the Tribunal to reach the view that her claim was not credible. However, we find that the primary error as to the basis of her claim so fundamentally affected the other and subsequent findings that it is impossible to determine that the outcome of the appeal would have been the same.
22. In the circumstances, we found that there was an error of law in the making of the decision of the First-tier Tribunal such that it should be set aside.
23. We considered with the parties whether we could proceed to remake the decision without a further hearing. In their submissions to us, the representatives of both the appellant and the respondent sought an adjournment of the substantive hearing of the appeal. The appellant wished to call her husband to give evidence in support of her claim and the respondent wished to question the appellant about her claim.
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
We set aside the decision.
The decision will be re-made at an adjourned hearing.
1. The hearing of the appeal will be at Field House.
2. The appellant must file with the Upper Tribunal and serve upon the respondent any further witness statements to be relied on not later than 28 days after the date hereof.
Signed: Date: 4 July 2013
Deputy Upper Tribunal Judge Pickup
The First-tier Tribunal made an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.
We continue that order (pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008).
Signed: Date: 4 July 2013
Deputy Upper Tribunal Judge Pickup