Upper Tribunal (Immigration and asylum chamber), 2013-11-14, [2013] UKUT 571 (IAC) (AS (s.55 “exclusion” certificate - process))
| Jurisdiction | UK Non-devolved |
| Judge | Upper Tribunal Judge Peter Lane, Upper Tribunal Judge Pitt |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Reported |
| Date | 14 November 2013 |
| Published date | 21 November 2013 |
| Subject Matter | s.55 “exclusion” certificate - process |
| Appeal Number | [2013] UKUT 571 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
AS (s.55 “exclusion” certificate - process) Sri Lanka [2013] UKUT 00571 (IAC)
THE IMMIGRATION ACTS
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Heard at Field House |
Determination Promulgated |
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On 18 September 2013 |
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………………………………… |
Before
UPPER TRIBUNAL JUDGE PETER LANE
UPPER TRIBUNAL JUDGE PITT
Between
AS
(ANONYMITY ORDER MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms S Jegarajah of Counsel instructed by Shanthi & Co.
For the Respondent: Mr I Jarvis, Senior Home Office Presenting Officer
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Section 55 of the Immigration, Asylum and Nationality Act 2006 does not require a decision on exclusion from asylum to be made at the outset of a hearing and prior to consideration of any other matters.
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The effect of s.55 is to require a Tribunal in its written determination to decide exclusion from asylum first, before proceeding to address any other head of claim.
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Deciding exclusion first is merely common sense, regardless of whether a s.55 certificate has been made by the respondent as it determines whether substantive consideration of the asylum claim is necessary.
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There is no statutory provision akin to s.55 that can be applied when an applicant makes a claim for Humanitarian Protection. However, given the exclusion criteria in paragraph 339D of HC 395 (the Immigration Rules), which are very similar to those in Article 1F(a), a Tribunal should also decide on exclusion from Humanitarian Protection before substantive consideration of that claim.
DETERMINATION AND REASONS
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The appellant is a national of Sri Lanka and was born in 1978.
Appeal History
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The appellant arrived in the UK on 15 October 2010 as a visitor with his wife and two children. On 10 November 2010 the appellant applied for asylum and humanitarian protection status under Council Directive 2004/83/EC (the Qualification Directive) with his family as his dependants. He also maintained that he was entitled to protection under Article 3 of the ECHR.
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In a letter dated 1 September 2011 the respondent refused the appellant’s application on all heads and made a decision under Section 10 of the Immigration and Asylum Act 1999 to remove the appellant and his family to Sri Lanka.
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In addition, the respondent certified the appellant’s asylum claim under s.55 of the Immigration, Asylum and Nationality Act 2006 (“the 2006 Act”). It is the respondent’s case that the appellant is excluded from the protection of the Refugee Convention by operation of Article 1F (a), as there are serious reasons for considering he has committed a war crime or a crime against humanity.
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The appellant appealed to the First-tier Tribunal. The appeal was heard by First‑tier Tribunal Judge Mensah on 1 December 2011 and 6 January 2012. In her determination dated 20 January 2012, Judge Mensah upheld the s.55 certificate and dismissed the appeal on all grounds.
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On 17 February 2012, the appellant was granted permission to appeal Judge Mensah’s decision to the Upper Tribunal. After a hearing on 4 February 2013, we found that the determination of Judge Mensah disclosed a material error on a point of law such that it should be set aside.
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A copy of our decision on the error of law is appended to this determination. The error of law was such that the determination of the First-tier Tribunal had to be set aside entirely and re-made de novo. It is therefore our task now to re-make the asylum and other claims, doing so in line with the provisions of s.55 of the 2006 Act.
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We must also make a decision on an additional submission made to us by Ms Jegarajah, that the correct process in a s.55 case is to hear evidence and submissions and make a decision on exclusion at a hearing before proceeding to hear evidence and submissions on any other issue.
The Appellant’s Claim
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In order to provide a context for the legal submissions made to us on the correct procedure for dealing with a s.55 certificate, we now set out the appellant’s claim.
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The appellant maintains that from 2007 to 2009 he worked as a member of a special unit of the Sri Lankan police force. He worked in a team of twelve people drawn from different armed services and his team also included members of the criminal underworld.
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The appellant would receive orders directly from the Deputy General of Police and the Superintendent of Police using a mobile phone given to him specifically and uniquely for this purpose. The unit did not have a fixed location but would meet in places such as abandoned houses.
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The order would come to go to arrest a certain person who was a suspected LTTE member. The appellant and his colleagues would be armed. They would arrest and tie up and blindfold the detainee, and place them in the foot well of an unmarked vehicle. The detainee would then be handed over to other individuals working for the government, usually in an abandoned house, sometimes passing them over to men from another unmarked vehicle, sometimes taking the person to a police station, the handover location only being given at the last minute.
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The appellant maintains that for most of the time that he worked for this unit, he did not know what happened to the people arrested after they left his charge. He knew only that the work he was doing was part of an effort to stop the high number of LTTE suicide bombings taking place at that time.
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However, in approximately May 2009 he became aware of reports in the media that it was likely that after people he arrested were handed over to others they were tortured and possibly killed.
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The appellant was greatly concerned by this but uncertain of what to do and concerned for his own safety. He applied for a transfer but remained active within the unit until December 2009 when he took part in an operation for the last time and then left the unit in January 2010. During 2009 the arrests were widened to include other civilians and members of the criminal underworld who were suspected of acting against the government.
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During 2010 the appellant signed on weekly but noticed that three other members of the unit, known to him only by their numbers, were no longer signing on. Another member, someone he had known previously and so had known the name of, Ranatanuga, was also no longer going to the gym where he had seen him regularly since leaving the unit. He raised Ranatanuga’s absence with his superior but was told in clear terms that it was not his business. Ranatanunga’s wife told the appellant that he had disappeared but that the police were not investigating his disappearance.
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At the same time, the appellant’s father reported unknown individuals hanging around the family home who, when challenged, said that they were waiting for a friend. The appellant was concerned that he was being followed and spent as much time as possible away from his home at police barracks.
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The appellant feared that he was at risk either from a government which suspected him of disclosing information about the torture and murder of LTTE suspects or from the criminal underworld who had been both informers to the unit and, in 2009, arrested by the unit. He decided to leave the country.
Procedure for a Section 55 Certificate
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The relevant provisions of s.55 of the 2006 Act are as follows:
Refugee Convention: certification
(1) This section applies to an asylum appeal where the Secretary of State issues a certificate that the appellant is not entitled to the protection of Article 33(1) of the Refugee Convention because—
(a) Article 1(F) applies to him (whether or not he would otherwise be entitled to protection), or
(b) Article 33(2) applies to him on grounds of national security (whether or not he would otherwise be entitled to protection).
(2) In this section—
(a) ‘asylum appeal’ means an appeal—
(i) which is brought under section 82, 83 or 101 of the Nationality, Immigration and Asylum Act 2002 (c. 41) or section 2 of the Special Immigration Appeals Commission Act 1997 (c. 68), and
(ii) in which the appellant claims that to remove him from or require him to leave the United Kingdom would be contrary to the United Kingdom’s obligations under the Refugee Convention, and
(b) ‘the Refugee Convention’ means the Convention relating to the Status of Refugees done at Geneva on 28th July 1951.
(3) The Asylum and Immigration Tribunal or the Special Immigration Appeals Commission must begin substantive deliberations on the asylum appeal by considering the statements in the Secretary of State’s certificate.
(4) If the Tribunal or Commission agrees with those statements it must dismiss such part of the asylum appeal as amounts to an asylum claim (before considering any other aspect of the case).
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Ms...
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