United Kingdom Asylum and Immigration Tribunal

APPEAL No. [2004] UKIAT 00056 R (Sri Lanka)

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 8^th March 2004

Date Determination notified: 25^th March 2004

Before The Honourable Mr Justice Ouseley (President) Miss K Eshun
Between

 

R	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the Appellant: Mr P Haywood, instructed by Van-Arkadie & Co, Solicitors For the Respondent: Mr P Deller, Home Office Presenting Officer
DETERMINATION AND REASONS
1. This is an appeal against the determination of an Adjudicator, Miss F Barry, who by her determination of 8^th October 2003 dismissed the Appellant's asylum and human rights appeals against the decision of the Secretary of State, taken on 21^st March 2001.
2. The Adjudicator's determination was a fresh determination following an earlier decision.
3. The Adjudicator rejected the evidence of the Appellant and seemingly of other witnesses whom he called to the effect that he was a prominent member of the LTTE who had been involved in broadcasting and presenting LTTE programmes, working as a newsreader, videoing conflicts and meetings of the LTTE. She accepted that he had been taken into custody by the Sri Lankan authorities in January 2000 and that he had been seriously tortured during his time in custody, some six months. She then assessed the risk of his being returned to Colombo on the basis that he was at best no more than a low level supporter of the LTTE and that as a failed returning asylum seeker, he would not be at risk from the adverse attentions of the authorities and that he would in all likelihood be waved through at the security checks.
4. She then considered his claim under Article 8. This was based on his diagnosis of PTSD, the treatment which he was receiving for it in this country and the absence in Sri Lanka of equivalent medical facilities. It was in particular the way in which Article 8 had been dealt with by the Adjudicator and her reliance inappropriately on A(E) and F(E) [2002] UKIAT 05237 as opposed to the decision of the Court of Appeal in Razgar [2003] EWCA Civ 840, which underlay the appeal. A number of other points were also raised about the way in which the evidence as to his prominence as an LTTE member had been appraised.
5. The Tribunal refused permission to appeal to it on the grounds that had the Article 8 claim been considered within the Razgar framework, it would inevitably have failed by reference to the thresholds which had to be met. The claims that there had been mis-appraisals of the evidence were also rejected. On statutory review, the Tribunal's refusal of permission was overturned.
6. For the purposes of the appeal before us, Mr Haywood who appeared for the Appellant commenced his submissions by dealing with the errors which he submitted existed in the appraisal by the Adjudicator of the evidence called on the Appellant's behalf. It became clear as we examined those points, that they were potentially critical errors. If what the Appellant had said was true, then plainly there was a much greater prospect of his succeeding on his Article 3 and asylum claims. Conversely, if the Adjudicator's appraisal was correct, and without expressing any view on the prospects of success of the Article 8 claim, the risk on return would have been markedly less. It might well fall within the scope of the series of the Tribunal decisions in Jeyachandran and subsequently as for example in Sathiyamoorthi 3^rd February [2004] UKIAT 00039 S (Sri Lanka). In that case, the Tribunal in paragraphs 43 and 46 considered the latest position in relation to Sri Lanka and concluded that changes there did not alter the position as assessed in Jeyachandran. We set out those paragraphs:

"43. On a more general level, Miss Bayati recognised that the cautious note sounded by the UNHCR was the same as it sounded, before the Tribunal decided in Jeyachandran [2002] UKIAT 01689 that it was only the exceptional case which would not be able to return in safety. The position was reviewed in Thiagarajah [2002] UKIAT 04917. The current problems have been considered in a number of cases and the consistent position has been that the recent developments do not warrant a change in that assessment. Miss Bayati recognised that we should refer to our own reported cases on these country conditions. The pessimism in Dr Good's report of August 2003 is consistent with the pessimistic line which he has taken in the past, an approach which was considered by the Tribunal in May 2003, in P (Sri Lanka) [2003] UKIAT 00145. The current problems had not occurred by the time of his August report. That decision also considered the availability of medical treatment in relation to a case where the problems of the claimant were markedly more severe than here. He had been detained as a LTTE supporter and ill treated on a number of occasions. Nonetheless, the Tribunal concluded that he could be returned.

46. The position after the declaration of the state of emergency was considered in N (Sri Lanka) [2003] UKIAT 00150 in which the Tribunal also dealt with body scarring. That was not seen as a bar to return. The October CIPU does not deal the current position politically, as between the President and the Prime Minister. Nonetheless, the essential features are that the ceasefire is still holding, the ban on the LTTE remains lifted, it engages in political activities outside its area of control, even if it has an unsavoury and violent undertone to some of what it does, as Dr Good suggests. There is nothing in any evidence which we have seen to suggest that the picture in the October 2003 CIPU Report or in the determinations to which we have referred, has significantly changed as regards the way returning asylum seekers are treated on arrival or in the way in which searches are carried out. There may be greater tension and a higher incidence of searches and roadblocks; there may be more arbitrary restrictions imposed on the free movement of goods and people as the UNHCR letter of 8^th December 2003 to Sri and Co says may have happened. But that does not support the notion that there would be a real risk of treatment which beached Article 3. The assessment made in Jeyachandran and subsequent cases remains good. There is nothing to suggest that the Appellant is wanted in a relatively serious way. She was a low level supporter briefly detained, and released, who without further arrest later made her way to Colombo whence she departed through the series of checks at the main airport."

7. Mr Deller for the Home Office realistically recognised that at least some of the errors identified by Mr Haywood were justified. We agree and we will deal with those points briefly. We would emphasise however that there were a number of points made by the Adjudicator in relation to credibility and the fact that some of her reasoning is not accepted by the Tribunal as soundly based, gives no indication one way or the other as to what the true position is. That would be for a fresh Adjudicator considering all the evidence afresh to decide and in the light of the findings of that Adjudicator the appropriate assessment in relation to risk on return can be made. It may or may not affect the substance of the Article 8 claim which relates rather more to psychiatric evidence, the availability of psychiatric treatment in Sri Lanka and a consideration of Razgar, N and Djali.
8. Before dealing with the points where the Adjudicator has erred, we point out that it was quite wrong for the Respondent not to be represented when the matter last went back from this Tribunal. We have no doubt whatsoever but that the Adjudicator faced problems trying to deal with problematic credibility issues without the benefit of cross-examination of witnesses and submissions by the Secretary of State's representatives. It is with reluctance that we are remitting this case and we express the hope that the Respondent will ensure that he is properly represented. Had he been properly represented, we cannot help but feel that the problem which has been faced would not have arisen.
9. The first point made by Mr Haywood is that it was not obvious why the Adjudicator thought that an adverse credibility finding could be assisted by the fact that the Appellant had "never before come to the attention of the authorities in Sri Lanka in the six years during which he was a member of the LTTE" carrying out his activities as a broadcaster and as someone who claimed to be extremely well known to the Sri Lankan intelligence community on account of his activities. It depends upon what is meant by "come to the attention of the authorities". If by that no more is meant than that the authorities were aware of his existence, it takes matters nowhere. If on the other hand what is meant is that it is not credible that he had not been picked up by the authorities for his activities, that is, with respect to the Adjudicator, not soundly reasoned. There are many reasons why the Sri Lankan authorities might not have been able to pick up somebody in whom they were extremely interested and who had come to their attention for a long time; they include that they had no adequate control over areas run by the LTTE and therefore had no means to make sure that those who come to their attention were more closely examined.
10. It was next submitted that the Adjudicator in reaching her conclusion that the Appellant was of no real interest to the authorities and lacked the prominence which he claimed, erred in relying on the fact that he had gone through the security checks and passport control at Colombo airport "apparently" on his own passport. It was said, and this is not disputed, that that issue had not been raised with the Appellant; there was background material showing that it is possible to get through Colombo Airport on a false passport and there was some indication from the interview that the Appellant did not now have his own passport. It is one of the problems which arises where the Home Office is not represented but Adjudicators may feel concerned about a particular point and yet not raise it, feeling unduly inhibited perhaps by the Surendran guidelines. They would not in fact have prevented those questions being put if they concerned the Adjudicator.
11. Mr Deller makes the point and there is some authority to support it (Koca v SSHD Outer House, Court of Sessions 22^nd November 2002) that not every point which cries out for comment by an Appellant has to be put in order for the absence of explanation for it to be taken against an Appellant, but in view of the way in which those leaving Sri Lanka are able to get through the airport and do so routinely on false passports, this is not one of those issues.
12. The third point taken was that the Adjudicator disregarded corroborative evidence as to the Appellant's prominence, simply saying that the witnesses were the Appellant's family and friends and suggesting that on that ground alone they would be biased and unreliable. Again, the Adjudicator would have been helped had their evidence been tested properly through cross-examination in the normal way by a representative from the Home Office. She may have felt unduly inhibited in putting points of concern to them, but to treat the corroborative evidence as of no significance, simply, as it appears, on the grounds that the witnesses were family and friends is not adequately reasoned and is not a proper basis by itself for eliminating the impact of their evidence.
13. The last point raised is that the Adjudicator again in assessing that the Appellant was not prominent, pointed out that during his six month period in custody, he had not been charged or brought before a Court and did not hold a criminal record. He was released during the course of a raid on the detention camp by the LTTE. There is nothing unusual about that length of detention and the Appellant had given an explanation as to what he was doing by way of assisting the Sri Lankan authorities under duress. But it is not possible in our judgement to say that because he had not been tried or charged during that period, that he was not somebody who was prominent; it may or may not have been the case. The position accordingly is that with regret, this matter has to go back for the evidence to be properly considered. The regret we express reflects not merely the fact that this is going back for the second time and that the problem is engendered in good measure by the failure of the Home Office to be represented, it is also because the Adjudicator has plainly endeavoured to produce a comprehensive and reasoned determination but for the reasons we have given, we think that she has not done so sufficiently for the significance which attaches to the adverse conclusions that she has reached in relation to credibility.
14. Accordingly, the appeal is allowed to the extent of it being remitted for another Adjudicator to consider.

MR JUSTICE OUSELEY

PRESIDENT