ST (Child Asylum Seekers) Sri Lanka [Upper Tribunal]
| Jurisdiction | UK Non-devolved |
| Judge | The Hon Mr Justice Blake,Perkins,Perkins UTJ,Blake J |
| Judgment Date | 31 May 2013 |
| Neutral Citation | [2013] UKUT 292 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 31 May 2013 |
[2013] UKUT 292 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
THE PRESIDENT, The Hon Mr Justice Blake
UPPER TRIBUNAL JUDGE Perkins
For the Appellant: Mr A Vaughan Counsel instructed by Luqmani Thompson
For the Respondent: Mr N Bramble, Senior Home Office Presenting Officer
ST (Child asylum seekers) Sri Lanka
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1. Appeals can be brought under section 83 of the Nationality, Immigration and Asylum Act 2002 (so called “upgrade” appeals”) only on the grounds that removing the appellant from the United Kingdom would breach the United Kingdom's obligations under the Refugee Convention (see section 84(3)) or that the appellant is entitled to humanitarian protection (see FA (Iraq) v Secretary of State for the Home Department [2010] EWCA Civ 696).
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2. Such appeals are decided on the basis of a hypothetical return at the date of the decision/ hearing.
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3. The wider range of grounds permissible in appeals under section 82 of the Act is not available in section 83 appeals and the Tribunal has no power to entertain them.
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4. The “best interests of the child” are relevant in section 83 appeals only to the extent that they illuminate a claim that the appellant is a refugee or entitled to humanitarian protection.
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5. The Tribunal is unlikely to be assisted by hearing the evidence of a child who is 12. Whenever a judge is considering hearing evidence from a child the issues should be explored with the advocates and the responsible adult accompanying the child and the guidance in the Senior President's Practice Statement of 30 October 2008 ‘Circumstances Under Which a Child Vulnerable Adult or Sensitive Witness May Give Evidence’ applied.
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6. A judge should alert the advocates where minded to depart from a favourable assessment of credibility made by the UKBA (as noted by the AIT in WN (Surendran; credibility) DRC [2004] UKIAT 213.)
We direct that the appellant be identified only by the initial S in connection with these proceedings
S is a child who is a national of Sri Lanka of Tamil ethnicity. His date of birth is September 2001. He is thus aged 11 1/2 at the date of the hearing before us.
On 29 November 2011 he claimed asylum at the Home Office having entered the UK irregularly.
The core elements of his account are as follows:–
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a. He came from a village in the north of Sri Lanka that was a Tamil area where the LTTE had once been active.
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b. He had seen his father in the uniform of the LTTE that he was able to describe. He had also been told by his mother than his father was in the LTTE.
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c. When he was very young the LTTE came to search for his mother and she surrendered herself in place of his sister.
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d. Thereafter his care and that of elder sisters was entrusted to his paternal grandmother although time was spent with his uncle when bombing made the area unsafe.
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e. S moved to the seaside as a result of the fighting between the LTTE and government forces. When a bomb landed nearby, he became separated from his grandmother and sisters. Someone called Viki assumed responsibility for him. He relocated to Sammy Army Camp where he lived for 10 months. Calculating backwards, on the information S provided to the Home Office it would seem that he entered the camp some time around May 2009.
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f. Through a friend of his family, S was able to speak to his paternal aunt's husband who is in Switzerland with his family.
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g. He was helped to escape the base by a friend of his uncle and then stayed with a Muslim family in Colombo before going to Malaysia (March 2010) where he remained for 18 months before travelling through a number of countries to reach the UK by coach in November 2011.
Once he became known to the Home Office, he was assigned to the care of the local authority and started attending primary school within the London Borough of Croydon in December 2011. In February 2012 he was allocated to a Tamil foster parent who we will call P. After that a maternal aunt living in Liverpool came to light and we understand that following the decision below S has moved to live with her.
The history of this claim may be summarised as follows:–
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a. On 12 December 2011 there was a brief screening interview conducted through an interpreter in Tamil.
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b. On 10 January S completed a Self-Evaluation Form with an accompanying witness statement that set out his experiences and concludes:
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‘I am terrified of being returned to Sri Lanka. I am a Tamil and I am very young and I am not in touch with any family. I do not think I would be safe.’
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That witness statement was produced with the assistance of a Tamil interpreter.
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c. The claim for asylum was considered and rejected on 20 January 2012. His age, identity, family history and essential narrative were not disputed but it was not considered that he was at a sufficient risk of harm on return. Essentially two questions were considered:
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i. Paragraphs 29 to 58 of the decision letter deal with an assessment of risk as a Tamil child of parents connected with the LTTE. It was concluded that in light of his age such factors did not give rise to any well founded fear of persecution.
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ii. Paragraphs 59 to 66 considered current conditions in Sri Lanka for children without parental and/or family care. Amongst the background materials referred to was a UNICEF report noting that at the end of 2006 there were 19,000 living in institutions in Sri Lanka and this was the most common solution for children without parental care. The international community had expressed concerns that not enough was being done to move away from institutional care for children. The decision maker noted that there were alternatives to institutional care and particularly noted the work of organisations such as SOS Children's Villages that had started operating in Sri Lanka in 1980 and now through various programmes looked after 5,000 children in Sri Lanka and 78,000 children world-wide. The conclusion was reached that there were no substantial grounds for believing that S would be at risk on return to Sri Lanka.
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iii. Paragraphs 67 to 69 briefly assessed humanitarian protection and concluded that there were no substantial grounds for believing that there is a real risk or inhuman or degrading treatment or punishment.
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d. On the 23 January 2012 a decision was made to grant S discretionary leave to remain as an unaccompanied child. The duration of such leave was until 18 March 2015, a period of three years, at the end of which he would still be only 14.
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e. S appealed against the refusal of asylum and there was an initial hearing before the First-tier Tribunal on 5 March 2012. By that time S had produced a second witness statement, also made with the assistance of an interpreter; a witness statement from P, and an expert report from Professor Good.
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f. A fresh refusal letter was issued on 19 March 2012. This revised letter primarily focused on the claimed risk as a Tamil child of LTTE parents and consideration of care facilities in Sri Lanka to accommodate unaccompanied children was omitted.
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g. However the letter did address a claim to be a refugee by membership of a particular social group and addressed the decision of LQ (Age: immutable characteristic) Afghanistan [2008] UKAIT 0055:
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i. There was no evidence to suggest JT's parents were both dead ii. There were a number of facilities available to trace family members in Sri Lanka, such as the Red Cross and the family tracing unit in Vavuniya. UNICEF also sustained family tracing work undertaken by the local government's probation service and in 2011 had announced that it was expanding its work to the whole of the north of Sri Lanka.
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iii. It was not accepted that the claimant was an orphan or would end up in an orphanage.
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h. On 18 June 2012 this adjourned appeal came on before Judge Clayton in the First-tier Tribunal. By that stage the appellant had added the following to the material: a second report from Professor Good dated 3 May 2012; a bundle of country information focusing on the risk of sexual abuse of children in Sri Lanka; a third report from Professor Good dated 14 June 2012; a statement from a maternal aunt, SV, who was resident in Liverpool with discretionary leave to remain, and a skeleton argument drafted by counsel with conduct of the case, Ms R Chapman.
Judge Clayton briefly heard from S and P. Both gave their evidence without an interpreter. It seems that S was called at the Judge's request, as we understand that Ms Chapman considered that as credibility was not in issue and S was still only 10 1/2, it was not appropriate to call him to give evidence.
In a decision promulgated a few days later the judge dismissed the appeal. She concluded:–
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a. The appeal was under s. 82(1) of the Nationality Immigration and Asylum Act 2002 (NIAA).
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b. Having considered the evidence as a whole, the appellant's asylum claim was found not to be credible.
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c. It was implausible that his family members in Liverpool and Switzerland would have no knowledge of the appellant's paternal grandmother.
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d. Although his claim was argued on the basis that he was a member of a particular social group there was no question of his being required to leave the UK at the present time.
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e. His maternal grandmother's whereabouts in Sri Lanka were known and although she was 68 and had high blood pressure and associated problems this would not prevent a teenage boy living with her.
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f. Although institutional care facilities in Sri Lanka were poor and returning S now to face them would be unreasonable, he would not be returning immediately and when he was returned in the future, he would not be in a different position from any other teenage boy in that...
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