NP (Sri Lanka) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,Lady Justice Black,Lord Justice Lewison |
| Judgment Date | 16 May 2012 |
| Neutral Citation | [2012] EWCA Civ 906 |
| Docket Number | Case No: C5/2011/2035 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 May 2012 |
[2012] EWCA Civ 906
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
[APPEAL NO: AA/15708/2010]
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Laws
Lady Justice Black
and
Lord Justice Lewison
Case No: C5/2011/2035
Mr S Chelvan (instructed by Messrs Scudamores) appeared on behalf of the Appellant.
Mr D Manknell (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.
This is an appeal with permission granted by Mummery LJ on 2 February 2012 against a decision of the Upper Tribunal (Deputy Judge O'Connor) promulgated on 3 June 2011 by which the earlier determination of the First-tier Tribunal was set aside in part, but the appellant's appeal against the Secretary of State's refusal of asylum on 4 November 2010 was dismissed.
The appellant is a national of Sri Lanka born on 10 February 1978. He arrived in the United Kingdom on 21 April 2010 and claimed asylum. The essence of his claim is crisply summarised by Deputy Judge O'Connor at paragraph 2 of his determination as follows:
"2. The core of the appellant's case is that he is a Tamil who originated from the North of Sri Lanka, but who moved to Vanni in the north- east of Sri Lanka in 1995. He asserts that in December 2007 he was forcefully recruited as a member of the LTTE, and taken to a Vaddakachi camp. After initially refusing to cooperate he was thereafter recruited into the Kumaran regiment. He then undertook one month of training and was stationed for a further two months as a sentry at an LTTE camp. He subsequently variously stood entry at border points and also delivered items to the border areas. In May 2009 he sustained a head injury when feeling army and air attacks. He has a visible one-inch scar to his forehead. The appellant then states that on, or around, the 18 th May 2009 he was taken to Omanthai checkpoint, and then to Ananthakumarasamy camp, where he was identified by PAPPA as a former LTTE member, along with other members of his regiment. He asserts that he then confessed to being an LTTE member, and that the army took his name and photograph and put him in a guarded tent with other identified LTTE members, awaiting transfer to another camp the following day. The appellant states that he then escaped from detention with a number of others, prior to [being] transferred. He travelled to his uncle's house in Vavuniya who then facilitated his exit from Sri Lanka by ship."
Dismissing the appellant's appeal from the Secretary of State's refusal of asylum, Immigration Judge Napthine in the First-tier Tribunal on 31 December 2010 held that the appellant's account of his detention and escape was not credible and it was not reasonably likely that he would be of any interest to the Sri Lankan authorities if he were returned.
In the Upper Tribunal the Secretary of State conceded, and Deputy Judge O'Connor accepted, that the First-tier Tribunal had erred in law in the terms pleaded in the second ground of appeal to the Upper Tribunal as follows:
"…having found that [the appellant] is from Vanni and had never been detained by the Sri Lankan authorities, then the Tribunal materially erred in law in not applying TK and finding that [the appellant] would be at real risk on return to his home area, as he had not been screened, and the claim would have to be determined on the basis of the internal relocation alternative…the Tribunal materially erred in not addressing the issue of internal relocation."
The Upper Tribunal proceeded to reject the appellant's criticisms of the FTT's conclusions as to his credibility and held that the only error made by the FTT was that identified in the conceded ground of appeal. The Deputy Judge then went on to remake the asylum decision (see paragraphs 18 and following of his determination). He noted that the appellant also framed his case by reference to the Qualification Regulations of 2006 and Article 3 of the European Convention on Human Rights.
The Secretary of State before the Upper Tribunal relied on internal flight, submitting that the appellant could relocate in Colombo and that it would not be unduly harsh for him to do so. She accepted (paragraph 28) that the appellant would be at risk of persecution in his home area of Vanni because he had not been screened. The Upper Tribunal accepted the Secretary of State's case on internal flight and accordingly dismissed the appeal.
The principal ground of appeal in this court is that, in the circumstances, the Secretary of State was not entitled to rely on an internal flight alternative at all and the Upper Tribunal should not have considered it. The argument is put two ways. (1) Internal flight was not part of the Secretary of State's case in the original decision letter and before the FTT. That being so, the issue should not have been addressed on appeal. (2) Before the Upper Tribunal the Secretary of State failed to file a response in respect of internal flight as required by the applicable procedure rules. It is submitted in the Amended Grounds (paragraph 11 and 14), a submission persisted in by Mr Chelvan this morning, that the Upper Tribunal lacked all jurisdiction to entertain an issue not before the FTT at the first appeal.
It is right that there is nothing in the decision letter about internal flight. It was then the Secretary of State's case that the appellant could be returned safely to Sri Lanka, including his home area, so that no question of internal flight arose. It is however to be noted that at paragraph 12 of his skeleton argument before the FTT the appellant himself asserted that because he could not be returned to Vanni, the case was one of internal relocation; but the FTT did not address internal relocation, accepting the Secretary of State's primary case at that time that the appellant was not in any event a refugee.
In asserting that the Secretary of State should not be allowed to rely on internal flight, since it was not raised in the decision letter, Mr Chelvan deploys: 1) the Secretary of State's own asylum policy instructions on internal relocation; 2) Article 8 of the Refugee Qualification Directive 2004/83/EC; and also 3) the observations of Sedley LJ in Daoud v SSHD [2005] EWCA Civ 755 at paragraph 12.
I turn to the asylum policy instructions (the API). Heading number 3 of this document reads "Refusing on internal relocation grounds". It states:
"An applicant can be refused on internal relocation grounds alone or with supporting grounds."
Then it has this:
If additional grounds are to be invoked in the refusal, it is for the decision maker to decide whether the other grounds should take precedence or whether the internal relocation grounds should be accorded primacy."
Mr Chelvan submits that the published policy gives rise to a legitimate expectation that if the Secretary of State does not rely on internal relocation as a reason for refusal at the time of decision he or she cannot rely on it later on an appeal. I wholly disagree. The API has no application to this case. The Secretary of State's decision letter did not rely on internal flight at all with or without other grounds. In any event the API does not bind the Upper Tribunal, as the deputy judge stated (paragraph 34).
I turn next to the Qualification Directive. Article 8.1 of the Directive provides that member states may refuse a claim for international protection on internal flight grounds. Article 8.2 provides as follows:
"In examining whether a part of the country of origin is in accordance with paragraph 1, Member States shall at the time of taking the decision on the application have regard to the general circumstances prevailing in that part of the country and to the personal circumstances of the applicant."
Article 8, in my judgment, has no more application to this case than does the API. The Deputy Judge dealt with this aspect of the case correctly at paragraph 35 as follows:
"Mr Nicholson also relies on the terms of Article 8 of the Qualification Directive (2004/83/EC). Again I do not accept his submission on this issue. Article 8 does no more than set out the fact that member states may refuse protection...
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