SR (Sri Lanka) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lady Justice Elisabeth Laing,Lord Justice Dingemans,Lord Justice Underhill |
| Judgment Date | 24 June 2022 |
| Neutral Citation | [2022] EWCA Civ 828 |
| Docket Number | Case No: CA-2021-000098 |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 828
Lord Justice Underhill
(Vice-President of the Court of Appeal (Civil Division))
Lord Justice Dingemans
and
Lady Justice Elisabeth Laing
Case No: CA-2021-000098
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
The Upper Tribunal (Immigration and Asyum Chamber) Upper Tribunal Judge Grubb
PA/07445/2019 (V)
Royal Courts of Justice
Strand, London, WC2A 2LL
Abid Mahmood (instructed by Fountain Solicitors) for the Claimant
Ben Keith (instructed by The Treasury Solicitor) for the Respondent
Hearing date: 28 April 2022
Approved Judgment
This judgment was handed down remotely by circulation to the parties' representatives by email and released to The National Archives. The date and time for hand-down is deemed to be 11 o'clock on 24 June 2022.
The Appellant (‘A’) appeals, with the permission of Nicola Davies LJ, from a determination of the Upper Tribunal (Immigration and Asylum) Chamber (‘the UT’). The UT held that there was no material error of law in a determination of the First-tier Tribunal (Immigration and Asylum) Chamber (‘the FtT’) made in 2020 (‘the 2020 determination’). In the 2020 determination, the FtT dismissed A's appeal from a decision of the Secretary of State dated 16 July 2019 to refuse his protection claim (‘the Decision’). In outline, his claim was that he had helped the Liberation Tigers of Tamil Eelam (‘the LTTE’) between 2006 and 2009, during the civil war in Sri Lanka, that he had been detained and tortured by the authorities, had left Sri Lanka illegally, and would be at risk from the authorities if he returned there. That risk was increased, he alleged, by his activities in the United Kingdom on behalf of the Transnational Government of Tamil Eelam (‘the TGTE’).
On this appeal, A has been represented by Mr Abid Mahmood and the Secretary of State by Mr Ben Keith. I thank both counsel for their helpful written and oral submissions.
Unless I say otherwise, paragraph references are to the determinations of the FtT or of the UT, as the case may be.
The question on this appeal is whether the FtT, which heard the evidence and found the facts, erred in law or not. If there is no error of law in its approach, the precise route by which the UT reached its conclusion that the FtT did not err in law does not matter. The focus of this judgment will, therefore, be the 2020 determination. For the reasons I give below, I consider that the FtT did not err in law in dismissing A's appeal.
A has appealed twice to the FtT against decisions of the Secretary of State refusing his protection claim. In a determination promulgated on 29 March 2013 (‘the 2013 determination’) the FtT dismissed A's appeal. The FtT again dismissed an appeal by A in a determination promulgated on 16 October 2019 (‘the 2019 determination’). In a determination promulgated on 14 March 2020, the UT overturned the 2019 determination and remitted A's appeal to the FtT. I say no more about either of those two determinations.
The 2013 determination
The 2013 determination was promulgated on 15 March 2013. A was represented at the 2013 hearing by counsel. The FtT recorded that A was born in 1954 and is a citizen of Sri Lanka. A entered the United Kingdom on 11 September 2012 and claimed asylum at port. The Secretary of State refused his claims in a decision dated 30 January 2013. The FtT explained that, at the hearing, A had renewed an earlier application for an adjournment, on two grounds. The FtT had already refused the application twice. One ground was that A needed time to get two different medical reports (about his mental health and about his scars). The FtT refused an adjournment, essentially on the grounds A had known for some time that he would need reports to support his claims and had done nothing to obtain them.
The FtT reminded itself that the burden of proof was on A. It made detailed findings of fact between paragraphs 28 and 60. It had to consider the question whether A had a well-founded fear of persecution ‘in the round in the light of all the relevant circumstances and judged against the situation as at the time of the hearing of the appeal’ (paragraph 26). The standard of proof in asylum appeals in relation both to ‘the likelihood of persecution and the establishment of past and future events, is a reasonable degree of likelihood which can also be expressed as “a reasonable chance” or “a serious possibility”. In human rights appeals the burden is to the lower standard namely whether there is a ‘real risk of a breach…’ (paragraph 27).
The FtT bore in mind the time which had elapsed since some of the events to which A referred. The FtT referred to Karanakaran v Secretary of State for the Home Department [2000] Imm AR 271. In that case, this Court said that in assessing future risk, decision makers may have to take into account ‘a whole bundle of disparate pieces of evidence: (1) evidence they are certain about; (2) evidence they think is probably true; (3) evidence to which they are willing to attach some credence, even if they could not go so far as to say it is probably true; and (4) evidence to which they are not willing to attach any credence at all’ (paragraph 28).
The FtT also said that it had complied with section 8 of the Asylum and Immigration (Treatment of Claimants Etc) Act 2004 (‘the 2004 Act’) when considering A's credibility. It reminded itself that it was possible to believe that a witness was not telling the truth about some aspects of his account, but that ‘the centrepiece still stands’ (paragraph 29).
In paragraph 37 the FtT described the documents on which A relied. He said that his sister had sent them to him two months before the hearing. A said he was still in contact with his sister in Sri Lanka. The documents concerned his treatment at a clinic in Colombo in 2006. A's evidence was that he had been treated for a brain tumour.
In paragraph 40 the FtT considered an inconsistency between answers A gave in his asylum interview and in his interview about when he stopped driving a lorry for the LTTE. The FtT recorded that when the inconsistency was put to A, he had qualified his evidence and said that between 2006 and 2009 he had accompanied the driver. The FtT found that A did not qualify his response until after he realised that his evidence did not fit with a previous statement. The FtT found that A ‘changed his evidence because he realised that his response undermines his claim that he was driving a vehicle and aiding the LTTE in 2006 and onwards into 2009. I find that the inconsistency in the evidence damages A's credibility’.
A's account in his asylum interview of the length of time for which he was tortured was different from his account in oral evidence. His evidence was ‘inconsistent on the day and inconsistent with his written statement and interview’. The FtT took into account that A was describing events in 2009, and that, if true, the events would have been ‘extremely frightening’. His answers were inconsistent ‘on an issue which goes to the core of his claim’ (paragraph 44).
The FtT considered photographs of A's three small scars (to his hip, leg and foot) in paragraph 46. A was 59 and had worked since he was 12. He had produced no medical evidence, whether through his wealthy sister in Sri Lanka, M, or his friend Kuhan in the United Kingdom. The FtT was satisfied that A had scars, but not that they were the result of torture. Given the time which A had had in which to produce medical evidence, and that he had failed to, the FtT did not accept that he suffered from mental health problems.
In the 2020 determination, the FtT recognised that the 2013 determination was its starting point, but did not treat its findings as ‘determinative’. It made a decision based on its own assessment of the up-to-date evidence. It also summarised the 2013 determination in paragraphs 12–19 (see paragraphs 31–33, below). It is not, therefore, necessary for me to summarise the 2013 determination in any more detail, other than to draw attention to the summary, in the 2020 determination, of the conclusions of the 2013 determination (see paragraphs 32–33, below). In short, in the 2013 determination, the FtT did not accept A's account of his actions in Sri Lanka, or of the way in which he left Sri Lanka.
The FtT refused A's application for permission to appeal on 3 May 2013. A's appeal rights were exhausted on 17 May 2013.
A's further submissions
A lodged further submissions on 12 August 2013. In a decision dated 15 August 2015, the Secretary of State refused those submissions and decided that they did not amount to a ‘fresh claim’ within paragraph 353 of the Immigration Rules (HC 395 as amended) (‘the Rules’). A again lodged further submissions in 2016 and in 2017, with the same result (decisions of 3 March and 26 May 2017, respectively). On 20 December 2018, A lodged yet more submissions.
The Secretary of State considered those submissions in a letter dated 16 July 2019. The Secretary of State refused the representations with an in-country right of appeal.
The claim considered by the Secretary of State was that A would face detention and torture in Sri Lanka because of his imputed political opinion, that he was at an increased risk of punishment because he had left Sri Lanka illegally, that he suffered from various medical conditions, and that he was a member of the TGTE. The Secretary of State quoted extensively from the 2013 determination. She noted that in her decision of 26 May 2017, she had referred to the absence of any evidence that A was wanted by the authorities, such as having his name on a stop or watch list, or a court order or outstanding arrest warrant.
The Secretary of State also considered A's claim that...
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