RS (Sri Lanka) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Floyd,Lady Justice King,Lord Justice Henderson |
| Judgment Date | 28 October 2019 |
| Neutral Citation | [2019] EWCA Civ 1796 |
| Docket Number | Case No: C5/2015/0972 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 October 2019 |
[2019] EWCA Civ 1796
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Deputy Upper Tribunal Judge Lindsley
Appeal Number AA/04981/2014
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Floyd
Lady Justice King
and
Lord Justice Henderson
Case No: C5/2015/0972
Patrick Lewis (instructed by Birnberg Peirce) for the Appellant
Claire van Overdijk (instructed by The Government Legal Department) for the Respondent
Hearing date: 15 October 2019
Approved Judgment
RS is a Sri Lankan citizen who came to the UK in May 2013 and immediately claimed asylum. He had been detained in Sri Lanka from shortly after the civil war ended in May 2009. Whilst in detention he had been tortured on account of his association with the Tamil separatist organisation, the LTTE. In December 2010, after 18 months in detention, he escaped by concealing himself in a removable cesspit with the aid of those responsible for emptying it. He went into hiding, but eventually succeeded in traveling to the UK via India on forged papers.
On 8 July 2014 RS's asylum application was refused. The following day the Secretary of State issued a “notice of refusal of leave to enter” which, it is common ground, amounted to an appealable immigration decision under the Nationality, Immigration and Asylum Act 2002. RS appealed to the First-Tier Tribunal (FTT), but in a decision issued on 22 August 2014 FTT Judge Rose dismissed his appeal. He then appealed further to the Upper Tribunal (Immigration and Asylum Chamber) (“UT”) where Deputy UT Judge Lindsley affirmed the decision of Judge Rose and dismissed his appeal. The final determination of his application for permission to appeal to this court was stayed because it was thought that his appeal involved an issue which was to be considered by the Supreme Court in the case of MP (Sri Lanka). On 22 June 2016 the Supreme Court decided to refer the question in MP (Sri Lanka) to the Court of Justice of the European Union: see [2016] UKSC 32. Subsequently it was appreciated that the issues in the present case would not be affected by the decision in MP (Sri Lanka) and the stay was lifted. Permission to appeal was ultimately granted by Sir Patrick Elias at an oral hearing on 4 February 2019. The grant of permission was limited to two specific grounds, only one of which was developed in any detail before us. The issue raised by that ground is whether the FTT and UT made a material error of law in failing to give weight to the fact that RS had escaped from custody.
The facts in more detail
The following facts were found by the FTT or were common ground before it:
i) RS was a member of the LTTE between 1995 and 2009, although in the peaceful period from 2004 to 2006 he worked for an engineering company.
ii) He was a low-level member of the LTTE. He worked for the finance division, undertaking vehicle maintenance. The work involved sending food, weapons and supplies with vehicles, arranging transport within the LTTE, picking up damaged vehicles and maintaining them and making armoured trucks for the LTTE. He also helped injured civilians by taking them to medical institutions for treatment.
iii) In 2009 he was captured by the Sri Lankan army.
iv) Whilst in detention he was tortured.
v) Although many detainees were being released in the period before and after January 2011, RS could not reasonably be expected to have known that there would be a progressive release of detainees.
vi) RS had given a credible account of how he escaped from the camp in which he was being held in December 2010 by concealing himself in a cesspit. He had been assisted by the cesspit emptier who was responsible for emptying the cesspits at several camps. His uncle, who had visited him in the camp, had assisted him and had been in contact with the cesspit emptier.
vii) Whilst he was staying with relatives in July 2011 army officers from a nearby camp came to search for “escapees”, but he was not found. The account given by RS did not indicate that army officers had identified RS in particular as the object of their search before they came.
The FTT did not make findings about the extent of injury which RS suffered at the hands of his torturers, but had before it a detailed report of a medical practitioner which expressed the view that his multiple scars were highly consistent with having been inflicted by blows from an iron bar, a long wooden stick, a thick cable, a rifle butt, a fall and shrapnel wounds. The medical practitioner's view was that the overall picture presented by RS's scars was strong evidence of the trauma and torture which he had described. The Secretary of State accepted in her refusal letter that this report “holds a lot of weight”. She accordingly accepted that RS was tortured by the Sri Lankan army due to his being a member of the LTTE.
GJ and others
In GJ and others (post-civil war returnees) Sri Lanka [2013] UKUT 319 (IAC) (“ GJ”) the Upper Tribunal gave country guidance on the risk of persecution or serious harm on return to Sri Lanka. It did so on the basis of extensive consideration of expert evidence and documentary material. The guidance is recorded in paragraph 356 of the decision as follows:
“(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 [have], 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...
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