SS (Sri Lanka) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Stanley Burnton,Lord Justice Lewison,Lord Justice Maurice Kay |
| Judgment Date | 21 February 2012 |
| Neutral Citation | [2012] EWCA Civ 155 |
| Docket Number | Case No: C5/2011/1155 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 February 2012 |
[2012] EWCA Civ 155
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Senior Immigration Judge Spencer
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Maurice Kay
Vice President of the Court of Appeal, Civil Division
Lord Justice Stanley Burnton
and
Lord Justice Lewison
Case No: C5/2011/1155
Charlotte Bayati (instructed by M & K Solicitors) for the appellant
Susan Chan (instructed by the Treasury Solicitor) for the respondent
Hearing date : 8 February 2012
Introduction
This is an appeal by SS against the determination dated 7 January 2011 of Senior Immigration Judge Spencer, sitting in the Upper Tribunal (Immigration and Asylum Chamber) dismissing her appeal against the determination of Immigration Judge Roopnarine-Davis, which in turn dismissed her appeal against the decision of the Secretary of State refusing her claim to asylum and to humanitarian protection.
The only ground of appeal relates to the Senior Immigration Judge's consideration of the medical evidence adduced on behalf of the appellant.
Having heard the submissions of Ms Bayati on behalf of the appellant, the Court announced its decision to dismiss the appeal, and stated that our reasons would be given in writing. My reasons for dismissing the appeal are set out in this judgment.
The facts
The appellant is a citizen of Sri Lanka, of Tamil ethnicity, born in November 1982. Her son, born in 2001, is present in the UK as her dependent. She came to this country on a false passport and claimed asylum. She claimed that she feared to return to Sri Lanka, by reason of her ethnicity, her origin in Vanni, from which she had been displaced in the hostilities between the LTTE and the Government, and in part because her husband had fought in the LTTE between 1996 and 1998, before their marriage, and had subsequently disappeared, presumably having been detained by government forces; and she had been a LTTE supporter. She claimed that she had two brothers and a sister in this country who were British citizens.
As mentioned above, the Secretary of State rejected the appellant's claim. She appealed to the Asylum and Immigration Tribunal. Her appeal was heard by Immigration Judge Roopnarine-Davis on 2 November 2009.
The appellant gave evidence orally before the Immigration Judge. She said that she feared torture if returned to Sri Lanka, because all those from Vanni were considered by the Sri Lankan army to be Tigers and were arrested for that reason; in addition, those in the camps would tell the army that her husband had been a Tiger, and the army would torture her and take her son away to prevent him growing up to be a Tiger.
There was no independent evidence that the appellant had brothers or a sister in this country who were British citizens, and the Immigration Judge did not accept that they were. He accepted that the appellant was a Tamil from Vanni. He did not accept that her husband had been a member of the LTTE or that he had ever come to the attention of the authorities as such. He did not accept that people in the camps would tell the authorities that her husband had been a member of the LTTE. The Immigration Judge's findings of fact are set out in paragraphs 16 to 18 of his determination:
"16. Looking at the evidence in the round and with anxious scrutiny I find as a fact that the appellant's husband was not a member of LTTE nor known as such and the crux of her claim falls away. The appellant has not suffered persecution in the past in Sri Lanka. I find that there are not substantial grounds for believing that she faces a real risk of persecution if she is returned there today. There are not, on the facts as found, 'serious reasons for believing that the appellant would be of sufficient risk interest to the authorities in their efforts to combat the LTTE' – referred to as the first test in Aruliraivan above.
17. The appellant's husband is not a wanted man. There is no reason why she and her son would be arrested at Colombo airport. The scars she has are explicable. She has been in the UK barely 2 months. She has not taken any part in activities for the LTTE in the UK or in fact in Sri Lanka. There is little evidence that she actually left Sri Lanka illegally or that this by itself or simply being a failed asylum seeker … will put her at risk. She can truthfully assert that she has not volunteered support for the LTTE and I have rejected her claim that her husband was a member. She does not have relatives in the LTTE and can demonstrate that her family has been living in the government controlled area of Mannar since 1997 without interest to the authorities. The objective evidence does not show serious grounds for believing that the appellant will be at risk simply on account of her Tamil ethnicity though I accept that having come from the North of the country she is likely to undergo more questioning as to her background at Colombo airport (UNHCR and respondents Report of Information Gathering Visit to Colombo Sri Lanka 23–29 August 2009) The evidence does not show that simply being from the North and without an ID card will put a failed asylum seeker at risk of persecution. There are procedures for obtaining a replacement and this appellant has a network of family and friends and the financial wherewithal to apply for a replacement.
18. In so far as humanitarian protection is concerned and for reasons which I have set out above and applying the criteria under paragraph 339C of the Immigration Rules, I find there are not substantial grounds for believing that the appellant faces a real risk of serious harm in Sri Lanka. I find also that there are not substantial grounds for believing that the appellant faces a real risk of death or inhumane and degrading treatment in Sri Lanka under articles 2 and 3 of the ECHR. I have not come to this finding lightly. I have been cognizant of the UNHCR's advice as set out in the 2009 Sri Lanka Guidelines and its Note dated July 2009. Although it is stated that the 'current protection and humanitarian environment in Sri Lanka remains extremely challenging in the North' there is no reason why this appellant should have to return to the poor conditions in the camps in the North. She comes from a relatively wealthy family. She does not have a profile that will put her at 'relatively higher risk' as described in the UNHCR note. The appellant can return to Mannar or to Vavuniya although it is accepted that there are problems with freedom of movement. In this event she could settle in Colombo until conditions in the north stabilize or become more favourable. She can enlist the assistance of her relatives in the north. I do not consider this to be in her circumstances a harsh relocation alternative. She is an intelligent young woman with close family and means as referred to previously. It has not been shown to the lower standard that there is a real risk of a breach of her rights under Article 3 as submitted in paragraph 28 of Miss Physass's skeleton argument."
In December 2009, Senior Immigration Judge Goldstein ordered reconsideration of the Immigration Judge's determination. On the reconsideration, on 19 March 2010 Senior Immigration Judge Jordan rejected the appellant's challenges to the Immigration Judge's findings of fact as to the appellant's account of past events in Sri Lanka, but said that the Immigration Judge had failed to address the logistics of family members coming to meet her at the airport in Colombo and of her travelling to Mannar, where she has family, and the prospects of her having to spend time in a camp, with attendant risks, given that she had some scarring. He therefore gave permission to appeal.
The evidence before Senior Immigration Judge Spencer
Ultimately, the appeal came before Senior Immigration Judge Spencer on 29 November 2010. The appellant's sister gave evidence, and medical reports on the appellant from Dr Gunam Kanagaratnam, a psychiatrist, dated 30 June 2010 and 27 September 2010, were submitted on her behalf. The appellant did not give evidence. The Secretary of State did not put in any medical evidence.
In Dr Kanagaratnam's first report, he stated that it had been prepared in response to instructions from the appellant's solicitors in relation to her immigration. He said:
"I wish to state that [the appellant] was in an extremely disturbed state of mind on both occasions when she attended the assessment. I had great difficulties in being able to obtain a comprehensive and coherent account of her trauma related history and torture experiences.
She found it extremely painful to disclose her trauma related history and her torture experiences. Despite empathy and sensitivity during the assessment I was not able to obtain her complete history despite having spent six hours. Nevertheless my report includes the essential components of her trauma related experiences."
He set out the history given by the appellant, which went beyond what she had told Immigration Judge Roopnarine-Davis, and which included the following:
"[The appellant] got married in 1999. Her husband had been a combatant with LTTE since 1996. She met her husband when he was attached to the LTTE camp in Mulankavil. The LTTE allowed him to get married on condition that he would return whenever they recalled him. Her son was born in 2001. Her husband continued to retain his involvement with LTTE and had participated in their battles.
Her husband had to return to the LTTE and was an...
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