LP (LTTE area – Tamils – Colombo – risk?)

JurisdictionEngland & Wales
CourtAsylum and Immigration Tribunal
JudgeSenior Immigration Judge Mather
Judgment Date12 April 2007
Neutral Citation[2007] UKAIT 76
Date12 April 2007

[2007] UKAIT 76

Asylum and Immigration Tribunal

THE IMMIGRATION ACTS

Before

Senior Immigration Judge Mackey

Senior Immigration Judge Mather

Mrs E Morton

Between
LP
Appellant
and
The Secretary of State for the Home Department
Respondent
Representation:

For the Appellant: Mr A. MacKenzie, Counsel instructed by Birnberg Peirce & Partners Solicitors, London.

For the Respondent: Miss J. Richards, Counsel instructed by the Treasury Solicitor

LP (LTTE area — Tamils — Colombo — risk?) Sri Lanka CG

(1) Tamils are not per se at risk of serious harm from the Sri Lankan authorities in Colombo. A number of factors may increase the risk, including but not limited to: a previous record as a suspected or actual LTTE member;a previous criminal record and/or outstanding arrest warrant; bail jumping and/orescaping from custody; having signed a confession or similar document; having been asked by the security forces to become an informer; the presence of scarring; return from London or other centre of LTTE fundraising; illegal departure from Sri Lanka; lack of an ID card or other documentation; having made an asylum claim abroad;having relatives in the LTTE. In every case, those factors and the weight to be ascribed to them, individually and cumulatively, must be considered in the light of the facts of each case but they are not intended to be a check list.

(2) If a person is actively wanted by the police and/or named on a Watched or Wanted list held at Colombo airport, they may be at risk of detention at the airport.

(3) Otherwise, the majority of returning failed asylum seekers are processed relatively quickly and with no difficulty beyond some possible harassment.

(4) Tamils in Colombo are at increased risk of being stopped at checkpoints, ina cordon and search operation, or of being the subject of a raid on a Lodge wherethey are staying. In general, the risk again is no more than harassment and should not cause any lasting difficulty, but Tamils who have recently returned to Sri Lanka and have not yet renewed their Sri Lankan identity documents will be subject tomore investigation and the factors listed above may then com into play.

(5) Returning Tamils should be able to establish the fact of their recent return during the short period necessary for new identity documents to be procured.

(6) A person who cannot establish that he is at real risk of persecution in his home area is not a refugee; but his appeal may succeed underarticle 3 of the ECHR, or he may be entitled to humanitarian protection if he canestablish he would be at risk in the part of the country to which he will be returned.

(7) The weight to be given to expert evidence (individual or country) and country background evidence is dependent upon the quality of the raw data from which itis drawn and the quality of the filtering process to which that data has been subjected. Sources should be given whenever possible.

(8) The determinations about Sri Lanka listed in para 229 are replaced as country guidance by this determination. They continue to be reported cases.

DETERMINATION AND REASONS
Contents

(1) Introduction and conclusions on first stage reconsideration setting out the material error of law.

1. Introduction and Conclusions on First Stage Reconsideration Setting Out Material Error of Law
1

This matter came before us as a second stage reconsideration and was identified as a potential country guidance determination. The appellant is an ethnic Tamil from Jaffna in the north of Sri Lanka. Following problems and involvement of the appellant and other family members in the LTTE and later problems with the Sri Lankan authorities the appellant fled Sri Lanka via Colombo Airport on 29 December 1999. He arrived in this country on 5 January 2000 and claimed asylum that day. After an interview with the respondent in May 2000 he was given permission to work and did so. In late 2004 his work permit was withdrawn. He applied for it to be reinstated. His asylum claim was refused in July 2005. Detailed reasons were given in the refusal letter dated 11 July 2005. That refusal letter did not challenge the appellant's credibility. The appellant then appealed to an Immigration Judge. After a hearing before Immigration Judge E B Grant on 27 September 2005 she dismissed his appeal on both asylum and human rights grounds, in a determination promulgated on 13 October 2005. The appellant applied for reconsideration. An order for reconsideration was made by Senior Immigration Judge Gill on 31 October 2005. The matter then came before Senior Immigration Judge Chalkley on 23 April 2006. He found that there were material errors of law in the determination for the reasons set out below.

2

He said:–

“Reasons for the Determination that there is an Error of Law in the Determination

The Home Office Presenting Officer accepted that the Immigration Judge did not appear to accept Dr Smith as an expert witness, save only in relation to arms, as per the final sentence of paragraph 33 of the determination. The Home Office Presenting Officer suggested that in all other respects, the Immigration Judge rejects Dr Smith's expertise and for that reason rejected his reports since it was un-sourced. I find that in not making a clear finding as to whether or not she did accept him to be an expert witness, the Immigration Judge erred in law. In any event, if the Judge did, as the respondent maintains, only accept his expertise in one area dealt with in his report, she should have clearly given her reasons for rejecting his claimed expertise in other areas dealt with by him in his report. Grounds one and two of the application were found to have been made out and in the circumstances it was thought by the representative to be unnecessary for me to go on to consider the remaining challenges to the determination.”

3

The matter was then adjourned for a second stage reconsideration before a senior panel of the Tribunal, both on the issues of country expert witnesses, and the risks on return to this appellant as a known LTTE supporter with scars, who was released on bail and subsequently failed to report to sign on.

4

We were provided with a main respondent's bundle, supplementary respondent's bundle, 4 appellant's bundles (A, B and C and D) and an appellant's bundle of authorities. We were also given a note from the appellant on existing Country Guidance (“CG”) cases in response to a request made to both parties. Ms Richards addressed us orally on this matter. Skeleton arguments for both the appellant and respondent were also submitted and on the second day of the hearing a BBC News Report “Tamil statehood ‘is only option’”, dated 27 November 2006. A full list of the country evidence, including the expert reports, is set out in the appendix to this determination.

2. The Issues
5

Because of the problems identified in the grounds in respect of the use or assessment of country expert witnesses at preliminary hearings and in skeleton arguments, the first issue considered by us was the role of country expert witnesses, particularly in country guidance cases before the Tribunal. The submissions of both parties and our conclusions are set out in Part (4) of this determination.

6

The other issues identified by us are:

  • (a) General conclusions to be reached after full consideration of all the background evidence, case law and expert witnesses in relation to the twelve areas of potential risk, either separately or cumulatively, set out in paragraph 161.

  • (b) Based on our conclusions in relation to those risks, objectively (and to a limited extent only, subjectively), on the facts as found, does that evidence indicate a well-founded fear of persecution for one or more of the five Refugee Convention reasons, or is the appellant entitled to humanitarian protection within the provisions of the Refugee or...

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