MP (Sri Lanka) (1st Appellant) v NT (Sri Lanka) (2nd Appellant) The Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeLord Justice Maurice Kay,Lord Justice Elias,Lord Justice Underhill
Judgment Date18 June 2014
Neutral Citation[2014] EWCA Civ 829
Docket NumberCase No: C5/2013/2607
CourtCourt of Appeal (Civil Division)
Date18 June 2014
Between:
MP (Sri Lanka)
1 st Appellant
and
NT (Sri Lanka)
2 nd Appellant

and

The Secretary of State for the Home Department
Respondent

[2014] EWCA Civ 829

Before:

Lord Justice Maurice Kay Vice President of the Court of Appeal, Civil Division

Lord Justice Elias

Lord Justice Underhill

Case No: C5/2013/2607

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM

UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)

UPPER TRIBUNAL JUDGES GLEESON, DAWSON AND O'CONNOR

AA/12647/2011, AA/03791 and AA/02916/2009

Royal Courts of Justice

Strand, London, WC2A 2LL

Raza Husain QC, Alasdair Mackenzie and Alison Pickup (instructed by Birnberg Peirce & Partners) for MP & NT

Raza Husain, Rudolph Spurling and Sara Anzani (instructed by HK Solicitors) for NT

Jonothan Hall and Will Hays (instructed by Treasury Solicitors) for the Respondent

Ms Parosha Chandran and Shivani Jegarajah (instructed by Wilsons Solicitors) for the Intervener (Tamils against Genocide)

Hearing dates: 17–18 March 2014

Lord Justice Maurice Kay
1

In recent years the political situation in Sri Lanka has changed. 25 years of civil war came to an end in May 2009. In order to assess the need for international protection, country guidance has had to be updated. Whilst the conflict was still ongoing, the Asylum and Immigration Tribunal promulgated guidance in LP (LTTE Area—Tamils—Colombo—Risk) Sri Lanka CG [2007] UKAIT 00079. That guidance was updated soon after the end of the civil war in TK (Tamils, LP Updated) Sri Lanka CG [2009] UKAIT 00049. This appeal is concerned with the most recent guidance which was promulgated by the Upper Tribunal (Immigration and Asylum Chamber) on 8 July 2013: [2013] UKUT 00319 (IAC). Permission to appeal was granted by Sullivan and Davis LJJ following an oral hearing. The issues raised are partly generic but also individual in relation to MP and NT. The lead appellant in the Upper Tribunal (UT) was GJ but his appeal was allowed by the UT and he is not a party to the proceedings in this Court.

The guidance

2

The UT noted that there had been real change, "both good and bad", since the end of the civil war. The present position was described as follows (at paragraph 354):

"The LTTE is now a spent force within Sri Lanka and considered unlikely to rise again from within the unitary Sri Lanka, which is tightly controlled by the Sri Lankan security forces. The perceived risk against which the government of Sri Lanka (GOSL) works now concerns the possibility of LTTE resurgence and efforts to restart the internal armed conflict, from outside Sri Lanka, led by diaspora activists. The GOSL no longer relies principally on checkpoints and searches; its approach is intelligence-led and it has sophisticated extensive intelligence as to those who are seeking to destabilise the unitary state, within the diaspora and in Sri Lanka itself."

In order to produce guidance to meet the changed circumstances, the UT considered a vast amount of material, including Eligibility Guidelines which had been produced by the UNHCR in December 2012 (the UNHCR Guidelines) and the evidence of experts, including Professor Anthony Good, Dr Chris Smith and others. The hearing took place over nine days. Approximately 5000 pages of documentary evidence were considered. The determination of the UT is a formidable piece of work running to 457 paragraphs plus a further 100 pages of Appendices.

3

The country guidance is set out in paragraph 356 of the Determination. It is appropriate to set it out in full:

"356. Having considered and reviewed all the evidence, including the latest UNHCR guidance, we consider that the change in the GOSL's approach is so significant that it is preferable to reframe the risk analysis for the present political situation in Sri Lanka. We give the following country guidance:

(1) This determination replaces all existing country guidance on Sri Lanka.

(2) The focus of the Sri Lankan government's concern has changed since the civil war ended in May 2009. The LTTE in Sri Lanka itself is a spent force and there have been no terrorist incidents since the end of the civil war.

(3) The government's present objective is to identify Tamil activists in the diaspora who are working for Tamil separatism and to destabilise the unitary Sri Lankan state enshrined in Amendment 6(1) to the Sri Lankan Constitution in 1983, which prohibits the 'violation of territorial integrity' of Sri Lanka. Its focus is on preventing both (a) the resurgence of the LTTE or any similar Tamil separatist organisation and (b) the revival of the civil war within Sri Lanka.

(4) If a person is detained by the Sri Lankan security services there remains a real risk of ill-treatment or harm requiring international protection.

(5) Internal relocation is not an option within Sri Lanka for a person at real risk from the Sri Lankan authorities, since the government now controls the whole of Sri Lanka and Tamils are required to return to a named address after passing through the airport.

(6) There are no detention facilities at the airport. Only those whose names appear on a "stop" list will be detained from the airport. Any risk for those in whom the Sri Lankan authorities are or become interested exists not at the airport, but after arrival in their home area, where their arrival will be verified by the CID or police within a few days.

(7) The current categories of persons at real risk of persecution or serious harm on return to Sri Lanka, whether in detention or otherwise, are:

(a) Individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they are, or are perceived to have a significant role in relation to post-conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka.

(b) Journalists (whether in print or other media) or human rights activists, who, in either case, have criticised the Sri Lankan government, in particular its human rights record, or who are associated with publications critical of the Sri Lankan government.

(c) Individuals who have given evidence to the Lessons Learned and Reconciliation Commission implicating the Sri Lankan security forces, armed forces or the Sri Lankan authorities in alleged war crimes. Among those who may have witnessed war crimes during the conflict, particularly in the No-Fire Zones in May 2009, only those who have already identified themselves by giving such evidence would be known to the Sri Lankan authorities and therefore only they are at real risk of adverse attention or persecution on return as potential or actual war crimes witnesses.

(d) A person whose name appears on a computerised "stop" list accessible at the airport, comprising a list of those against whom there is an extant court order or arrest warrant. Individuals whose name appears on a "stop" list will be stopped at the airport and handed over to the appropriate Sri Lankan authorities, in pursuance of such order or warrant.

(8) The Sri Lankan authorities' approach is based on sophisticated intelligence, both as to activities within Sri Lanka and in the diaspora. The Sri Lankan authorities know that many Sri Lankan Tamils travelled abroad as economic migrants and also that everyone in the Northern Province had some level of involvement with the LTTE during the civil war. In post-conflict Sri Lanka, an individual's past history will be relevant only to the extent that it is perceived by the Sri Lankan authorities as indicating a present risk to the unitary Sri Lankan state or the Sri Lankan Government.

(9) The authorities maintain a computerised intelligence-led "watch" list. A person whose name appears on a "watch" list is not reasonably likely to be detained at the airport but will be monitored by the security services after his or her return. If that monitoring does not indicate that such a person is a Tamil activist working to destabilise the unitary Sri Lankan state or revive the internal armed conflict, the individual in question is not, in general, reasonably likely to be detained by the security forces. That will be a question of fact in each case, dependent on any diaspora activities carried out by such an individual.

(10) Consideration must always be given to whether, in the light of an individual's activities and responsibilities during the civil war, the exclusion clauses are engaged (Article 1F of the Refugee Convention and Article 12(2) of the Qualification Directive). Regard should be had to the categories for exclusion set out in the "Eligibility Guidelines For Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka", published by UNHCR on 21 December 2012.

The generic grounds of appeal

4

Essentially, the central complaint of the appellants in relation to the country guidance relates not to what it includes but to what it is said to exclude. Their case is that the undisputed evidence was that a far wider range of people are at risk than those who might benefit from paragraph 356 which, it is said, concentrates too much on diaspora activism. It is submitted that the UNHCR Guidelines are more protective but the UT did not follow them and did not explain why it was not doing so. There was no contradictory evidence. Moreover, there was significant evidence concerning actual returnees, some of it available from decisions of the Secretary of State or the First-Tier Tribunal and the UT, which was excluded or not given appropriate weight by the UT. Also, evidence from human rights organisations, in particular Freedom from Torture (FFT) and Human Rights Watch (HRW) received flawed consideration. A further organisation—Tamils against Genocide (TAG)—had appeared as an...

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