UB (Sri Lanka) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Irwin,Lord Justice David Richards,The President of the Family Division |
| Judgment Date | 22 February 2017 |
| Neutral Citation | [2017] EWCA Civ 85 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 February 2017 |
| Docket Number | Case No: C5/2015/0753/AITRF |
[2017] EWCA Civ 85
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBERS)
Deputy Upper Tribunal Judge Pickup
AA/05646/2014
Royal Courts of Justice
Strand, London, WC2A 2LL
THE PRESIDENT OF THE FAMILY DIVISION
Lord Justice David Richards
and
Lord Justice Irwin
Case No: C5/2015/0753/AITRF
Mark Henderson (instructed by Birnberg Peirce & Partners) for the Appellant
Ivan Hare (instructed by Government Legal Department) for the Respondent
Hearing date: 9 February 2017
Approved Judgment
Introduction
In this case the Appellant is a national of Sri Lanka. He has made an asylum claim based on his previous involvement with the Liberation Tigers of Tamil Eelam ["LTTE"] whilst in Sri Lanka, his participation in pro-LTTE demonstrations in the United Kingdom and his claimed membership of the Transnational Government of Tamil Eelam ["TGTE"]. His appeal turns on a single ground. Policy guidance issued by the Home Office on 28 August 2014 was not brought to the attention of either the First-tier Tribunal ["FTT"] or of the Upper Tribunal ["UT"]. The Appellant seeks permission to adduce the material now, and submits that since the material was issued by the Respondent, it was the responsibility of the Respondent to ensure that it was drawn to the attention of the Tribunals concerned, that the guidance was material to the decision and that its non-disclosure gave rise to procedural unfairness. As a consequence, the Appellant seeks an order quashing the decision.
The Facts
The Appellant came to the UK in 2007 as a student. In 2010 and 2011, he made successful applications for further leave to remain. He returned to Sri Lanka in 2010 but following that journey (to his father's funeral) he has not again visited Sri Lanka. He made an application for asylum on 24 June 2014. The Respondent dismissed the application on 23 July 2014. The Appellant appealed to the FTT pursuant to Section 82(1) of the Nationality, Immigration and Asylum Act 2002. His appeal was on the basis that he was a refugee and that his return to Sri Lanka would constitute a breach of the Geneva Convention. He fears persecution if returned due to his previous involvement with the LTTE and to the fact that since he came to live in the United Kingdom he has participated in various demonstrations against the Sri Lankan government. Critically, he provided evidence to the Tribunal that he had an involvement with the TGTE. The Appellant also seeks to remain as a matter of humanitarian protection.
The parties submitted a number of documents before the FTT for a hearing scheduled for 10 September 2014. At the hearing, the Appellant was represented by counsel and the Respondent by a Home Office Presenting Officer. Neither party referred to the Home Office issued policy guidance and conjoined Country of Origin Information ["COI"], published on the Home Office website on 28 August 2014 and entitled " Tamil Separatism".
On the basis of the documentary and oral evidence presented to the First-tier Tribunal Judge Wyman, he dismissed the claim. The judge paid close regard to the country guidance case GJ and Others (post-civil war: returnees) Sri Lanka 2013 CG [2013] UKUT 00319 (IAC), which set out detailed guidance as to the categories of individuals "at real risk of persecution or serious harm" on return to Sri Lanka. Those groups were summarised as being:
i) Individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they are, 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.
ii) Journalists or human rights activists who have criticised the Sri Lankan government, in particular its human rights record …
iii) Individuals who have given evidence to the Lessons Learned in Reconciliation Commission implicating the Sri Lankan security services, armed forces or the authorities in alleged war crimes.
iv) 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 names appear 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.
Judge Wyman recited that guidance, including the observation in GJ that:
"The authorities know that many Tamils travelled abroad as economic migrants and that almost everyone had some level of involvement with the LTTE during the civil war. In post-conflict Sri Lanka, an individual's past history is 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 government."
It is not necessary for me to set out the competing submissions on fact. Judge Wyman made careful findings. He accepted the Appellant is a Sri Lankan, born on 26 September 1983. He accepted that he had joined the LTTE in 2003 and spent three years carrying out military service. This time coincided with the ceasefire in the country, and the Appellant would not have come into conflict with the Sri Lankan authorities during this period. The Appellant had not alleged that he was arrested or detained by government forces or services whilst undertaking his military service. Judge Wyman went on as follows:
"88. The Appellant has provided two letters from Mr Sivaratnam confirming that he is involved in the Transitional [sic] Government of Tamil Eelam. The first letter was a handwritten letter dated 28 June 2014 which appears in the appellant's bundle at page 79. This is a handwritten letter with various spelling mistakes. The second letter is dated 8 th September 2014 and is a typed letter from Mr Sivaratnam. Both letters state that the appellant actively takes part in rallies, demonstrations and meetings against the government. The letter states that the appellant also distributes leaflets and stands as a volunteer during the rallies.
89. The appellant has also provided numerous photographs showing him attending various rallies and demonstrations, often carrying a banner with headlines such as "UK stop helping Sri Lanka abduct Tamil children" or "Tamil Eelam are not terrorists". Some of these photographs have been published in Demotix. None of the photographs show him as an organiser of the rally but simply as somebody who attends the various rallies. The photographs in the bundle are variously dated 2014. These include a large demonstration in Glasgow where a demonstration was held to condemn participation of Sri Lanka in the Commonwealth Games.
…
91. The former Tamil areas in the diaspora are heavily penetrated by the security services. Photographs are taken of public demonstrations and the government of Sri Lanka may be using face recognition technology. The key question which concerns the government of Sri Lanka is the identification of Tamil activists working for Tamil separatism and to destabilise the unitary Sri Lankan state. However the court held that attendance at demonstrations in the diaspora alone is not sufficient to create a real risk or a reasonable degree of likelihood that a person will attract adverse attention on return to Sri Lanka.
92. Whilst I accept that the appellant has attended various demonstrations both in London and within the United Kingdom, I note that at paragraph 351 of GJ it held that "attendance at one, or even several demonstrations in the diaspora is not of itself evidence that a person is a committed Tamil activist seeking to promote Tamil separatism against Sri Lanka".
93. I note the appellant is not a leader in any of the communities within which he supports. His role appears to be that of very low level activity in simply attending demonstrations and giving out leaflets. He has not claimed that he is involved in public speaking, funding the LTTE or any other role. Even the letter from Mr Seevaratnam MP only claimed that he attends demonstrations, distributes leaflets and stands as a volunteer during rallies.
94. I therefore do not find that the appellant's activities in the United Kingdom reaches the threshold to be granted asylum in the United Kingdom. Nor do I find that the appellant is a "committed Tamil activist working for Tamil...
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