Indrakumar v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | LADY JUSTIICE HALE,LORD JUSTICE CARNWATH |
| Judgment Date | 13 November 2003 |
| Neutral Citation | [2003] EWCA Civ 1677 |
| Docket Number | C1/2003/1143 |
| Court | Court of Appeal (Civil Division) |
| Date | 13 November 2003 |
[2003] EWCA Civ 1677
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Lady Justice Hale
Lord Justice Carnwath
C1/2003/1143
MS S JEGARAJAH (instructed by MK Sri & Co Solicitors, Middlesex HA1 2TN) appeared on behalf of the Appellant
MR D BEARD (instructed by Treasury Solicitor, London SW1H 9JS) appeared on behalf of the Defendant
The appellant appeals with the permission of Dyson LJ from the decision of the Immigration Appeal Tribunal promulgated on 20 February 2003. The Tribunal allowed the Secretary of State's appeal against the decision of an adjudicator promulgated on 18 June 2002 that the appellant had a well-founded fear of persecution if returned to Sri Lanka. The issue before us is whether the Tribunal was entitled to overturn the adjudicator's decision. This raises first, the question of the proper test to be applied by the Tribunal, and second, how that test should be applied in this case.
The facts are these. The appellant's evidence was that he had lived in Jaffna. He had helped the Liberation Tigers of Tamil Eelam ("LTTE") after leaving school in 1989. In 1999 he had moved with his father and older brother to Vavuniya to live with his uncle, who had a shop there. They arrived in January 2000. The rest of his family was displaced to an LTTE area and thereafter their home in Jaffna was destroyed by the army. Pro-government Tamil groups told the army about the appellant's involvement with LTTE. He was arrested on 6 May 2000 when the army came to his home and he was unable to produce a pass allowing him to live in Vavuniya. He was taken into custody but not tortured, and was released after arrangements were made for him to have such a pass. In August, however, he was arrested again, interrogated under torture and released after 25 days through his uncle's efforts. There was initially a reporting condition and he signed on three times; but then money was paid for his release from that condition. His uncle then arranged for him to leave Vavuniya to go to Colombo. From there he travelled with an agent to Russia, then through Europe, arriving here on 10 December 2000.
As the Secretary of State was not represented at the hearing before the adjudicator, the appellant was asked about the various discrepancies in his account which had been identified by the Secretary of State in the decision letter and his answers to those are recorded in the adjudicator's determination. The adjudicator also had a medical report that the appellant had marks on both legs below the knee and a mark on his left cheek.
The adjudicator appears, although he does not in so many words say so, to have accepted the appellant as a credible witness, and the appellant's evidence as to those facts. So these may be taken to be his findings of primary fact. He went on to mention some of the objective country evidence, referring expressly to the visit of the United Kingdom delegation to Sri Lanka in March 2002 after the ceasefire which concluded that there had been considerable improvements in the human rights situation in that country. He referred to the Immigration Appeal Tribunal's decision in Jeyachandran [2002] UK IAT 1869, which had been heard in May 2002, presided over by Collins J, which had considered the up-to-date country evidence from the Home Office and from the UNHCR. The adjudicator referred to that decision in these terms:
"… the Tribunal indicated that it was too early to be satisfied that the situation had changed in Sri Lanka to the extent that it could now be said there was no risk to anyone. They noted what [the] UNHCR had said about returning Tamils and especially those involved with the LTTE were still at risk."
He then went on to draw his own conclusions as follows:
"The Appellant had been involved with the LTTE and as such would still be of interest to the authorities who would have his details from the fact that they were recorded when he was required to sign on. For this reason there is a risk to this Appellant of his arrest upon return with interrogation under torture."
On appeal to the Tribunal, the Tribunal referred to the decision in Jeyachandran, and in particular quoted from paragraph 8 of that decision:
"The reality is in our judgment that it is as yet premature to accept that everyone who has claimed asylum in this country would be able to return safely. We certainly are of the view that in the present situation and having regard to the present trends it is only the exceptional cases that will not be able to return in safety. The question is whether this appellant is such an exceptional case."
The Tribunal in our case also referred to another Tribunal decision in Brinston [2002] UK IAT 547, which dealt in detail with the objective evidence that was then in existence. They then went on to consider whether the appellant was an exceptional case. They took into account the medical evidence, but were not satisfied that the scars were likely to make a material difference. They referred to the fact that the matters had to be considered in the round:
"We do not consider that it is reasonably likely that this Appellant would be wanted by the authorities at this point in time. It is true that he has been persecuted in the past, he has been detained and released on two occasions. He was subjected to reporting restrictions but these were discontinued on payment of a bribe. We accept Mr Saunders' [of the Home Office] submission that it is very unlikely that the release from the reporting restrictions would cause the Respondent any difficulties because we consider that the authorities would mark the record so as to indicate that reporting was no longer required in this case. The inference being that he would not be considered of any interest to the authorities when those restrictions were lifted. It could not be said that he would be wanted in a relatively serious fashion."
They repeated the same points later on:
"The objective evidence indicates that there is a reasonable likelihood that he would be a matter of record to the authorities. However, such a record would, at its highest, only indicate arrests, detentions and releases. We do consider that this situation has changed for the better and there is no reasonable likelihood that this Respondent will be persecuted or ill-treated in any way. Suffice it to say that the position has not deteriorated since the case of Jeyachandran was decided. In fact, it appears that the ceasefire continues and we note that senior representatives of the Tamil Tigers are in discussion with the government. We are not aware of any objective evidence which indicates that a former supporter or member of the LTTE being a failed asylum seeker has faced any difficulties at Colombo since March 2002."
They therefore allowed the appeal.
The question for us is whether they were entitled to do that. Miss Jegarajah, for the appellant, contends that both the adjudicator and the Tribunal were considering whether on the primary facts found by the adjudicator, considered in the light of the objective country evidence, there was a risk to this appellant such as to give him a well-founded fear of persecution if returned. The adjudicator held that because his name was on record there was such a risk. The Tribunal held that there was not. Both conclusions, she accepts, were open to the adjudicator and the Tribunal on the evidence, but she argues that that is not enough for the Tribunal to interfere with the adjudicator's conclusion.
The test to be applied by the Immigration Appeal Tribunal has been considered in this court many times. Under the legislation and rules that were current at the time in question, an appeal lay to the Tribunal for an error of law or of fact (and also if there was some other compelling reason, but that does not concern us here). Miss Jegarajah accepts that the role of the Tribunal on appeal from an adjudicator is no different in this respect from the role of this court on an appeal from the High Court or a county court. It is important to bear that in mind when considering what is being said in the authorities.
They begin with the case of Borissov v Secretary of State for the Home Department [1996] Imm AR 524 at 535. Having rejected a test based on judicial review principles, Hirst LJ said this:
"Thus the jurisdiction of the Immigration Appeal Tribunal is not limited to questions of law, and it is within the scope of their jurisdiction for them to review, if they see fit to do so, the Special Adjudicator's conclusions of fact, though no doubt this power will be sparingly exercised, and in any event in accordance with general...
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