SN (Scarring– Bribes – LTTE - Reprisals)
| Jurisdiction | England & Wales |
| Judge | N H Goldstein |
| Judgment Date | 19 November 2003 |
| Neutral Citation | [2003] UKIAT 150 |
| Court | Immigration Appeals Tribunal |
| Date | 19 November 2003 |
[2003] UKIAT 150
IMMIGRATION APPEAL TRIBUNAL
Mr N H Goldstein (Chairman)
Mr N Kumar JP
For the appellant: Mr D Coleman, Counsel.
For the respondent: Ms J Sigley, Home Office Presenting Officer.
SN (Scarring- Bribes — LTTE — Reprisals) Sri Lanka CG
The appellant, the Secretary of State for the Home Department, has been granted permission to appeal to the Tribunal against the determination of an Adjudicator (Mr David Taylor) who allowed the respondent's appeal on asylum and human rights grounds.
The appellant challenges the Adjudicator's findings in relation to the respondent's asylum claim contending that the Adjudicator failed to follow Ravichandran [1996] IAR 97, by not giving clear and valid reasons as to why the respondent would be at risk if returned to Sri Lanka at the date of determining the appeal. The appellant contends that the Adjudicator failed to take full account of the current objective material relating to the peace process as outlined by the CIPU April 2003 Report before him and reinforced by case law and the continuing ceasefire.
The appellant refers to Jeyachandran [2002] UKIAT 01689 in which the Tribunal held that “in the present situation having regard to the present trends it is only exceptional cases that will not be able to return in safety. The example of an exceptional case is someone who must be wanted in a relatively serious fashion”.
The appellant contends that the respondent does not fall within this category in that there is no evidence of an arrest warrant or any other evidence to suggest that the respondent is wanted in Sri Lanka and that indeed the Adjudicator failed to make any finding that the respondent was wanted by the authorities.
The respondent claims that the appellant's last arrest was in November 1999 well before the commencement of the ceasefire.
The appellant notes that the respondent was released in relation to both of his detentions by way of the payment of a bribe and as such the continued interest by the authorities would be unlikely.
Finally, in relation to the Adjudicator's findings upon risk on return, the appellant contends that in the absence of evidence that the respondent is wanted it is submitted that the scarring which is so heavily relied upon by the Adjudicator at paragraphs 30 and 31 of his determination “is at most of only marginal relevance”.
There are in fact two parts to the appellant's appeal the other relating to the Adjudicator's findings that Articles 2 and 3 of the ECHR were engaged but more particularly in relation to the Adjudicator's findings that the appellant's situation was such that to return him to Sri Lanka would cause the United Kingdom to be in breach of its obligations under Article 8.
The respondent is a Tamil from the North of Sri Lanka. The Adjudicator found his account and claimed history to be entirely credible and in this regard we set out below the Adjudicator's summary of the respondent's claim:
“…. His family are supporters and have been involved for some years with the LTTE, One of his older brothers, whom he has not seen for five or six years, holds high rank in the LTTE. Two other older brothers both live in the UK are married and each has one daughter. They live together in one house (owned by one of the brothers) and the appellant lives with them as well. One of the brothers originally had refugee status in the UK and the other came as a student. Both have now obtained British citizenship.
In June 1991 the appellant was badly injured by an exploding bomb. Serious operations were necessary and he has major scars to his stomach. Over the next few years he assisted the LTTE and he says that he was forced to do this.
At the end of 1995 the Sri Lankan Army captured Jaffna from the LTTE and all the civilians relocated in about March 1996 for their safety. Those who remained were killed or tortured as being LTTE supporters. Shortly after relocation, the appellant went home to collect some belongings but he was captured by the authorities. As a result of his scars he was beaten up and tortured. He was identified as being the brother of a high-ranking officer of the LTTE and was tortured for information about his brother.
He was released with a bribe from his father. He later contracted malaria severely. In January 1997, despite his weakness, he was asked to help the LTTE and did so under duress.
The appellant's parents were unhappy at his being forced to work and, in November 1999 they arranged for him to go to Vavuniya. Shortly afterwards he was again detained on suspicion of being an LTTE member. He was beaten and required to identify LTTE members. He received scarring as a result of being tortured for the information.
In February 2000 the appellant's brother-in-law paid money to obtain his release and, with the assistance of an agent, arranged for him to flee to the UK. Because of his older brother's senior position in the LTTE as well as because of the numerous scars on his body he believes that he will be detained and persecuted if he returns.” [The typed emphasis is ours].
In evaluating the evidence at the hearing, the Adjudicator at paragraph 19 of his determination turned his attention to a medical report dated 28 May 2003 relating to the scarring to the respondent's body. He continued as follows:
“…. The report states that the scarring is consistent with his own description as to how the wounds were caused. At his Counsel's request, I inspected the appellant's scars on his chest and back although I made it clear that I did so as a layman without any medical knowledge. The scars are large and numerous and unmissible”. [The typed emphasis is ours].
Later in his determination at paragraph 24 and in summarising the submissions of the appellant's Counsel, Mr Coleman, (who also appeared before us) the Adjudicator noted that:
“…. However the appellant's scars are unmistakable. They caused him to be arrested on the last occasion that he was detained as the army thought that he was a combatant.”
The Adjudicator's findings in relation to the respondent's asylum appeal are set out between paragraphs 26 and 32 of the determination. The Adjudicator found the appellant had been forced to leave Sri Lanka, “due to his family's involvement with the LTTE”. The Adjudicator accepted the appellant's evidence, “as to the degree of torture that he received at the hands of the Sri Lankan authorities when they forced him to state what he knew about LTTE activities”.
The Adjudicator accepted the appellant's evidence, “that the LTTE came looking for him because he was informing against them”.
The Adjudicator continued inter alia:
“I accept the appellant's evidence as being credible. Where there are inconsistencies in his statements, as raised in the refusal letter, I am satisfied that they do not go to the core of his evidence. I am similarly satisfied that when the appellant fled Sri Lanka in March 2000 he did so with a well-founded fear of persecution which, at that time, would certainly have been a Convention reason for obtaining refugee status in the UK.
Circumstances since January 2002 have, of course, changed significantly in Sri Lanka with the development of the peace process. I am aware of the indication given by Mr Justice Collins in the case of Jeyachandran when he stated that it is as yet premature to accept that everyone who has claimed asylum in this country would be able to return safely. But the present view is that it is only the exceptional cases that will not be able to return in safety. There are few who would not be at risk but it is always necessary to consider the circumstances of each individual case.
I have examined the latest objective evidence produced to me. I am also conscious of the major scarring to the appellant's body. There is a serious risk that this scarring would bring him to the immediate attention of the authorities if he were to return. The state of affairs in Sri Lanka has not yet moved to the position where a man in the appellant's situation can be reasonably sure of passing through immigration unnoticed.
Applying the lower standard of proof that applies in asylum cases, I am satisfied that this appellant is at risk if he is sent back. The fact that he is a Tamil with serious scarring would be likely to bring him to the attention of the authorities and it would not be right to subject him to that risk.
Having made such a finding of fact I am obliged to and do allow the appeal on asylum grounds. [The typed emphasis is ours].
Ms Sigley drew our attention to the recent decision in the Court of Appeal in Sabanathan [2003] EWCA Civ 1517. It was a case where the Tribunal allowed an appeal by the Secretary of State against the decision of an Adjudicator and as Ms Sigley pointed out the circumstances of the appellant in that case were not dissimilar from the respondent in the case before us. The Tribunal had concluded that the scarring to that appellant was not particularly visible and was not of any significance and that it would not draw him to the attention of the Sri Lankan Army if he was returned. It was also said that there was no evidence that the appellant was wanted in Sri Lanka as an escapee or for any other reason.
The Court considered the issue of whether there was any conflict between the cases of Oleed [2002] EWCA Civ 1906 and Ravichandran and concluded that there was no such conflict.
We are mindful of the passages in the judgment that Ms Sigley most helpfully highlighted. They include an assessment of the background documentation and in particular the Fact Finding Report of March 2002 which records the position outlined by the Director of the Sri Lankan CID that if a returnee were not wanted they would not be stopped...
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