KJ (Sri Lanka) v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Stanley Burnton,Lord Justice Dyson
Judgment Date02 April 2009
Neutral Citation[2009] EWCA Civ 292
Docket NumberCase Nos: C5/2008/2194 AND C5/2008/1789
Date02 April 2009

[2009] EWCA Civ 292

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM the Asylum and Immigration Tribunal

Senior Immigration Judge Nichols and Immigration Judge Hanbury

Before : Lord Justice Waller

Lord Justice Dyson And Lord Justice Stanley Burnton

Case Nos: C5/2008/2194 AND C5/2008/1789

Between
Kj (sri Lanka)
Appellant
and
The Secretary Of State For The Home Department
Respondent

Shivani Jegarajah (instructed by K Ravi) for the Appellant

Jeremy Johnson (instructed by the Treasury Solicitor) for the Respondent

Hearing date: 20 January 2009

Lord Justice Stanley Burnton

Lord Justice Stanley Burnton:

Introduction

1

These proceedings raise questions as to the application of article 1F(c) of the Convention relating to the Status of Refugees of 1951 and of the principle established by the decision of this Court in DK (Serbia) v Secretary of State for the Home Department [2006] EWCA Civ 1747 [2008] 1 WLR 1246.

2

KJ is a Tamil and a national of Sri Lanka. He claimed asylum and humanitarian protection on the grounds that, having served with the LTTE military, he had been suspected by them of defecting to the Sri Lankan army, and detained by them. He had managed to escape, but then had been detained by the government's security forces. He had managed to escape by payment of a bribe. He said that he feared persecution by government forces and risked retribution at the hands of the LTTE if he returned to Sri Lanka. In the decision under appeal, the Asylum and Immigration Tribunal held that he would not be at risk from government forces on his return, but that he would be at risk from the LTTE if he returned, and that he was not entitled to refugee status because there were serious reasons for considering that he had been guilty of acts contrary to the purposes and principles of the United Nations within the meaning of Article 1F(c) of the Asylum Convention.

3

KJ appeals against the finding under Article 1F(c) and the finding that he would not be at risk from government forces on his return. He contends that the Tribunal in making its determination under appeal was bound by the findings in his favour made in the determination of an adjudicator back in December 2004, and that in any event the finding that he was not at risk from government forces was flawed. The Home Secretary appeals against the finding that KJ would be at risk from the LTTE.

The procedural history

4

In order to understand the issues on this appeal, it is necessary to set out the history of the tribunal proceedings relating to KJ's asylum claim. It is yet another sad story of multiple decisions leading to expense and delay in determining an appellant's claims.

5

KJ arrived in the UK in 1999. He claimed asylum on the grounds that if returned to Sri Lanka he feared persecution both from the Sri Lankan army and from the LTTE, the Tamil Tigers. His claim was rejected by the Home Secretary by letter dated 5 July 2004. He appealed to the Immigration Appellate Authority.

6

His appeal came before an adjudicator on 2 December 2004. Shortly before that date, the Law Society had intervened in the practice of the solicitors who had been representing him. As a result, he was unrepresented. He sought an adjournment, which was refused. The adjudicator proceeded to hear the appeal, in the course of which KJ gave evidence. The adjudicator made some findings that were favourable to KJ and others that were not. He found that KJ was a Tamil who had joined the LTTE at a young age and seen military action. He was not a leader but had been involved in planning and surveying. He rejected KJ's claim that he had been suspected by the LTTE of defecting to the army. He rejected KJ's claim that he had a justified fear of persecution by government forces and rejected his claim that he feared ill treatment by the LTTE. He therefore rejected both his claim under the Asylum Convention and that under Articles 2 and 3 of the Human Rights Convention. There was no claim under Article 8.

7

KJ appealed on procedural and substantive grounds. The procedural ground was that the adjudicator should have adjourned the hearing of the appeal for KJ to obtain legal representation: the fact that he had been unrepresented had not been due to any fault of his own.

8

On 14 March 2005, Vice President Latter granted permission to appeal on the ground that it was arguable that the adjudicator erred in law in refusing an adjournment. His order stated, “Permission to appeal is granted on all grounds.”

9

KJ's substantive challenge to the decision of the adjudicator was heard on 30 January 2006. It was common ground that the adjudicator had erred in law in refusing an adjournment, and the Tribunal so decided. On 22 February 2006 directions for the reconsideration of KJ's claims were given, which stated the issues for reconsideration as: “All core issues including credibility.”

10

The reconsideration hearing took place on 10 July 2006 and the decision of the Tribunal, consisting of Immigration Judges Vaudin d'Imecourt and Aujla, was promulgated on 24 July 2006. KJ was represented before them by Miss Jegarajah, who represented him before us. He relied on an expert country report of Dr Smith. DK (Serbia) had not been decided: the Court of Appeal's judgment was given on 20 December 2006. As a result, Miss Jegarajah did not submit that the Tribunal was bound by any of the favourable findings made by the adjudicator. The Tribunal considered his claim afresh. The Immigration Judges made adverse credibility findings and rejected both his Asylum Convention claim and his Human Rights claim, finding that he faced no real risk on return.

11

KJ sought reconsideration of the Tribunal's decision. He contended that the Tribunal had failed to treat the decision of the adjudicator as a starting point, and had failed to accept his findings in favour of KJ, including that as to his credibility, and that it had made other errors of law. On 25 September 2006, Senior Immigration Judge Spencer rejected the application as being out of time.

12

KJ then sought to appeal to the Court of Appeal. Following the grant of permission to appeal, the Home Secretary agreed that the appeal should be allowed. The agreed statement of reasons submitted on the application for a consent order stated:

“6. The Appellant's grounds set out in a skeleton argument are as follows:

i) the AIT reached a perverse conclusion that the Appellant left the LTTE in 1995 because there were no photographs of him in uniform after that date;

ii) the AIT erred in law in rejecting the Claim's account of his escape from a LTTE prison without considering the expert evidence of Dr Smith;

iii) the AIT erred in law in its consideration of Doctor Smith's evidence in so far as it relates to the Appellant's escape from Army custody.

7. It is arguable that the AIT erred in law in its consideration of the photographic evidence in relation to the Appellant's membership of the LTTE. Further, it is arguable that the AIT should have expressly addressed Doctor Smith's expert report in so far as it related to the Appellant's alleged escape from an LTTE prison. It is therefore expedient to remit the Appellant's appeal to the AIT for reconsideration.”

13

A consent order was duly made on 2 March 2007 remitting the case back to the Tribunal for reconsideration.

14

On 20 November 2007, KJ's case came before a panel consisting of Senior Immigration Judge Nichols and Immigration Judge Hanbury. It is their determination that is the subject of the appeals by both KJ and the Home Secretary now before us.

The Tribunals' determination under appeal

15

Before Senior Immigration Judge Nichols and Immigration Judge Hanbury it was argued on KJ's behalf that they were bound by the positive findings as to KJ's credibility made by the adjudicator in 2004. Having reviewed the history of the proceedings, the Tribunal rejected that submission, and proceeded to consider KJ's appeal afresh. They said:

“5. Having considered the submissions of both parties, we concluded that we should consider all issues afresh at the hearing before us. In relation to the first determination of the Adjudicator, we consider that the entire decision was vitiated by the refusal to adjourn and the consequent procedural unfairness. The matter was pursued on the basis that the appellant had not had an opportunity to properly put his case as he was represented and in our view it is clear from the AIT's decision on 22nd February 2006 that the hearing was adjourned for reconsideration on all issues and that the credibility of the appellant's account was to be re-determined. Given the basis of this application and the decision of the AIT, we do not consider the determination of the Adjudicator can stand. …”

16

KJ's case was that he had joined the LTTE in 1980. He trained with them and was taught surveying. He then joined a camp where members were involved in reconnaissance and surveying. They would enter locations of army camps and sentry points on to maps, to be used in attacks. They would also survey remote areas for maps to be produced. He had been involved in five battles and numerous clashes with the army, but the area where he had fought had been free of civilians. In support of his claim KJ produced two photographs of him in LTTE uniform. Whilst on a reconnaissance mission, two members had disappeared. It was suspected that they had defected to the army. KJ and a colleague were also suspected of assisting the army, and they were taken for questioning to a camp in dense jungle. KJ was held there for three...

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