Mm (Sri Lanka) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Toulson |
| Judgment Date | 06 February 2013 |
| Neutral Citation | [2013] EWCA Civ 391 |
| Date | 06 February 2013 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2012/2293 |
[2013] EWCA Civ 391
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
[AA/10373/2011]
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Toulson
Case No: C5/2012/2293
Mr Parminder Saini (instructed by Nag Freshlaw) appeared on behalf of the Appellant.
The Respondent did not appear and was not represented.
This is a renewed application for permission to appeal against a decision of Upper Tribunal Judge Spencer dated 20 June 2012, rejecting the appellant's appeal against the Home Secretary's refusal to vary his leave to remain in the UK. The appellant had claimed he was entitled to remain on asylum and human rights grounds and on humanitarian protection grounds. This claim was rejected by the Home Secretary.
The appellant is a citizen of Sri Lanka. His case in short was that he had come to the adverse attention of the Sri Lankan authorities because in the course of running the family business, a rice mill, he had supplied produce to the LTTE. This has led to suspicion that he was an LTTE supporter. He had been arrested, detained, tortured and interrogated about his involvement with the LTTE. In June 2009 his father had secured his release by payment of a bribe, and it was his case that he was required to continue to report to the authorities and did so up until two weeks before leaving Sri Lanka. He left Sri Lanka on 9 September 2009 flying from Colombo Airport on his own passport. He did not claim asylum until almost two years after his arrival in the UK.
In dismissing the appeal Judge Spencer attached an importance to the fact that he had been able to leave Sri Lanka on his own passport. In paragraph 15 the judge said:
"The appellant claimed that he was able to leave the airport notwithstanding that he had not signed on for two weeks because his details had not filtered through. On his account, however, his photograph was taken on arrest on 2 nd April 2009 and his fingerprints and photograph have been taken by the TID when he was released on 15 th June 2009. If it were the case that he was suspected of being a terrorist, in my view it is most inevitable that those details would have been recorded at the airport by 9 th September 2009."
This conclusion that it was virtually inevitable that his details would have been recorded at the airport, and that he would have been unable to leave Sri Lanka in the way that the appellant claimed, would have affected significantly the judge's entire view of the claim.
The criticism made by Mr Saini as involving a material error of law is that the judge did not pay any regard to Country information material about exit procedures at the airport, although this had been placed before him and specifically referred to in Mr Saini's skeleton argument.
The point, in brief, is that exit checks at the airport are carried out by immigration officers, not the police, and the circumstances in which immigration officers will stop somebody from boarding an aircraft when they have a valid passport are limited. In his skeleton argument before Judge Spencer at paragraph 3.10 he drew attention to the February 2010 COIS report, which stated at paragraph 33.05:
"A further letter from the BHC, Colombo, dated 1 October 2008, reported: 'As far as we have been able to establish, Immigration officers are notified [of bail/reporting conditions] only when court decides to impound the suspect's passport or an arrest warrant is issued, and there is no other mechanism to ensure that the Immigration Officers are aware of such instances. Apart from these Court powers, Immigration Officers have no power in law to prevent persons...
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Upper Tribunal (Immigration and asylum chamber), 2017-03-22, AA/10610/2015
...that the Judge erred by placing too much weight on the appellant not being on the watch list because the Court in MM (Sri Lanka) [2013] EWCA Civ 391 made clear that people on the watch list are able to leave due corruption and bribery. Mr Syed-Ali submitted the decision was unsafe. Mr Bates......