R RB (Sri Lanka) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | HHJ Coe |
| Judgment Date | 31 March 2015 |
| Neutral Citation | [2015] EWHC 813 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/11298/2012 |
| Date | 31 March 2015 |
[2015] EWHC 813 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
HHJ Coe QC SITTING AS A JUDGE OF THE HIGH COURT
Case No: CO/11298/2012
Mr R Halim (instructed by Duncan Lewis) for the Claimant
Mr W Hansen (instructed by Treasury Solicitors) for the Defendant
Hearing dates: 19 th February 2015
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
SIR BRIAN LEVESON PRESIDENT OF THE QUEEN'S BENCH DIVISION
HHJ Coe QC:
The Claimant, RB, challenges the Defendant's decisions to:
(i) refuse to treat his further submissions as amounting to a fresh claim for the purposes of paragraph 353 of the Immigration Rules by way of decisions dated 22nd October 2012, 20th November 2013 and 22nd December 2014; and
(ii) detain the Claimant where the Defendant was on notice of the clinical opinions of Dr Etkind and Dr Adil in reports and correspondence dated 26th of June 2012 and 2 nd July 2012 respectively.
The Claim Form was filed on 22nd October 2012. Interim relief to stay removal of the Claimant and expedite the case was granted on 22nd October 2012 and permission to apply for judicial review was granted on 19th December 2012 after an oral hearing.
The Claimant's Further Amended Grounds beginning at page 140(vii) and dated 17th February 2015 set out that following the decision in GJ and Others (post-civil war returnees) Sri Lanka CG [2013] UKUT 319 (IAC) the Defendant of her own motion reconsidered the Claimant's case on 20 th November 2013. Thereafter the hearing listed for 26th November 2013 was vacated by consent. The Claimant made further representations on 26th September 2014 and a decision was made by the Defendant on those representations on 22nd December 2014.
The Claimant is a citizen of Sri Lanka. His date of birth is 2nd January 1982. It seems that he arrived into the United Kingdom clandestinely on 16th January 2011. He claimed asylum on 28th January 2011 and was issued with IS151A and notified of his liability to removal and detention. He was interviewed on 10th February 2011 and his asylum claim was refused on 18th February 2011. On 28 th February 2011 he appealed that refusal to the tribunal and his appeal was dismissed on 27th April 2011. Reconsideration was sought by the Claimant and refused on 24th May 2011. Having previously complied with his reporting restrictions, when he became appeal rights exhausted he failed to report after 24th May 2011 and became an absconder. He was arrested by the police on 16th March 2012 and was detained from that date until 21st December 2012.
It is unnecessary to set out the detail of the Claimant's previous judicial review proceedings. His attempts to resist removal from the United Kingdom by those proceedings were unsuccessful. Permission was only granted in these proceedings.
The basis of the Claimant's asylum claim was that he would be at risk on return to Sri Lanka because of his (perceived) past association with the Liberation Tigers of Tamil Eelam ("LTTE"). It is his case that his brother and sister were killed in 1989 and 1990 on account of their work for the LTTE and he had worked in a shop for the LTTE. He said that he was targeted regularly and beaten up and at the end of the war against the LTTE in April 2009 he and his family were detained at the Vavuniya Chettykulam camp and he managed to escape by bribing police officers. He claims that he is a victim of torture and that his (perceived) association with the LTTE would place him at risk upon return to Sri Lanka.
At the time of the tribunal hearing the Claimant relied on a report from Professor Lingam dated 13th March 2011 to support his claim that he had been tortured. Professor Lingam concluded that the scars and other injuries were highly consistent with the history provided by the Claimant. Professor Lingam expressed concern about the Claimant's mental state and in particular considered that he was depressed.
I should mention that the copy of Professor Lingam's report in the papers is incomplete. It does not seem that there is now a complete copy available. However, it is apparent that the tribunal did have a complete report.
The tribunal decision is at page 151 in the bundle. In short the tribunal did not find the Claimant's evidence to be credible, considered that Professor Lingam's report was lacking and did not consider that the Claimant would be at risk on return to Sri Lanka.
The Claimant submitted further representations on 9th October 2012. He relies in this claim upon reports from Dr Etkind and Dr Adil dated 26th June 2012 and 7th July 2012 respectively. There is also reference in the pleadings to and evidence in the bundle of (although not really referred to in the oral argument before me) his activities sur place (engaging Members of Parliament to petition against the Government of Sri Lanka) which he says put him at risk on return to Sri Lanka.
The Claimant refers me to the Immigration Rules Part 12 Rule 353 dealing with fresh claims. This provides that: "When a human rights or asylum claim has been refused or withdrawn… the decision maker will consider any further submissions and, if rejected, will then determine if they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content: (i) had not already been considered; and (ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection."
In the case of SSHD v Boybeyi [1997] Imm AR 491, it is set out that the "acid test" for a fresh claim is "that there should be a realistic prospect that a favourable view could be taken of the new claim which was not a very high test". In WM (DRC) v SSHD [2006] EWCA Civ 145 at paragraph 7 it is set out that the rule
"only imposes a somewhat modest test that the application has to meet before it becomes a fresh claim. Firstly the question is whether or not there is a realistic prospect of success in an application before an adjudicator, but not more than that and secondly… the adjudicator himself does not have to achieve certainty but only to think that there is a real risk of the applicant being persecuted on return".
The third feature is that there must of course be anxious scrutiny of the material.
In R (AK) (Sri Lanka) v SSHD [2009] EWCA Civ 447 at paragraph 34 it is set out that "realistic prospect of success" means only more than a fanciful such prospect. The Claimant submits that in this case the medical evidence quite clearly surmounts this modest and not very high test.
By reference to the case of Devaseelan v SSHD [2002] UKIAT 00702 at paragraph 39 it is agreed between the parties that the first adjudicator's determination (in this case the First Tier Tribunal ("FTT")) should always be the starting point. The Claimant concedes that the FTT was quite right to dismiss the claim on the medical evidence and not to place any weight on that evidence. The decision of the FTT is in the bundle at page 151 and the findings are set out at page 157 beginning at paragraph 26. At paragraph 27 Immigration Judge Turquet sets out that
"Given the inconsistencies and implausibility of certain aspects of the Claimant's claim I make an adverse finding of credibility against this Appellant. I have been unable to rely on the veracity of his accounts. I find that I can give no weight to his claim to need international protection".
There are very many inconsistencies which the Immigration Judge found in the Claimant's evidence. There are too many to list in full. As examples, Judge Turquet felt that the Claimant had exaggerated his knowledge of the whereabouts of fuel to embellish his asylum case that he would be at risk on return. It was not accepted that he would have surrendered himself as he alleges. His account about dates was inconsistent as well as the sequence of events he gave. His account of being detained for one year and three months and then released on payment of a bribe was not accepted. His accounts of how often he was beaten whilst at the camp were inconsistent. He claimed that the scarring around his eyes was sustained by being bashed against a wall when he was suspended upside down, but said that all the other marks resulting from blows and beatings with wires were not visible. The scars he had had from being beaten (whether for three months or every week) had faded whereas on his account he would last have been beaten six weeks before he was interviewed on this topic. The tribunal judge considered that had he been ill-treated as claimed there would be marks still showing.
The tribunal judge specifically found that Professor Lingham's report gave little consideration to the other causes of the Appellant's scars and failed to comply with the Istanbul protocol. The report failed to consider some of the Claimant's alleged other symptoms. The tribunal judge was not happy about Professor Lingham's conclusion that the Claimant was clinically depressed particularly given that Professor Lingham is not a psychiatrist. The view that the Claimant had lost his memory and could not think was not consistent with the very detailed answers he gave in his asylum interview. The...
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Ousman Drammeh v The Secretary of State for the Home Department
...been made about the appellant's credibility. 38 Mr Waite referred by way of example to the recent case of RB (Sri Lanka) v SSHD [2015] EWHC 813 (Admin) in which the appellant had sought to rely on a further medical report to supplement the deficiencies in the medical evidence he had origina......