Upper Tribunal (Immigration and asylum chamber), 2003-11-19, [2003] UKIAT 150 (SN (Scarring, Bribes, LTTE, Reprisals))
| Jurisdiction | UK Non-devolved |
| Judge | Mr N Goldstein, Mr N Kumar JP |
| Status | Reported |
| Date | 19 November 2003 |
| Published date | 04 March 2005 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 12 November 2003 |
| Subject Matter | Scarring, Bribes, LTTE, Reprisals |
| Appeal Number | [2003] UKIAT 150 |
KH
Heard at Field House
SN (Scarring– Bribes – LTTE - Reprisals) Sri Lanka CG [2003] UKIAT 00150
Date: 12 November 2003
IMMIGRATION APPEAL TRIBUNAL
Date Determination notified:
19 November 2003
Before:
Mr N H Goldstein (Chairman)
Mr N Kumar JP
Between
APPELLANT
And
Secretary of State for the Home Department
RESPONDENT
Appearances
For the appellant: Mr D Coleman, Counsel.
For the respondent: Ms J Sigley, Home Office Presenting Officer.
DETERMINATION AND REASONS
1. The appellant, the Secretary of State for the Home Department, has been granted permission to appeal to the Tribunal against the determination of an Adjudicator (Mr David Taylor) who allowed the respondent's appeal on asylum and human rights grounds.
2. The appellant challenges the Adjudicator's findings in relation to the respondent's asylum claim contending that the Adjudicator failed to follow Ravichandran [1996] IAR 97, by not giving clear and valid reasons as to why the respondent would be at risk if returned to Sri Lanka at the date of determining the appeal. The appellant contends that the Adjudicator failed to take full account of the current objective material relating to the peace process as outlined by the CIPU April 2003 Report before him and reinforced by case law and the continuing ceasefire.
3. The appellant refers to Jeyachandran [2002] UKIAT 01689 in which the Tribunal held that "in the present situation having regard to the present trends it is only exceptional cases that will not be able to return in safety. The example of an exceptional case is someone who must be wanted in a relatively serious fashion".
4. The appellant contends that the respondent does not fall within this category in that there is no evidence of an arrest warrant or any other evidence to suggest that the respondent is wanted in Sri Lanka and that indeed the Adjudicator failed to make any finding that the respondent was wanted by the authorities.
5. The respondent claims that the appellant's last arrest was in November 1999 well before the commencement of the ceasefire.
6. The appellant notes that the respondent was released in relation to both of his detentions by way of the payment of a bribe and as such the continued interest by the authorities would be unlikely.
7. Finally, in relation to the Adjudicator's findings upon risk on return, the appellant contends that in the absence of evidence that the respondent is wanted it is submitted that the scarring which is so heavily relied upon by the Adjudicator at paragraphs 30 and 31 of his determination "is at most of only marginal relevance".
8. There are in fact two parts to the appellant's appeal the other relating to the Adjudicator's findings that Articles 2 and 3 of the ECHR were engaged but more particularly in relation to the Adjudicator's findings that the appellant's situation was such that to return him to Sri Lanka would cause the United Kingdom to be in breach of its obligations under Article 8.
9. The respondent is a Tamil from the North of Sri Lanka. The Adjudicator found his account and claimed history to be entirely credible and in this regard we set out below the Adjudicator's summary of the respondent's claim:
"…. His family are supporters and have been involved for some years with the LTTE, One of his older brothers, whom he has not seen for five or six years, holds high rank in the LTTE. Two other older brothers both live in the UK are married and each has one daughter. They live together in one house (owned by one of the brothers) and the appellant lives with them as well. One of the brothers originally had refugee status in the UK and the other came as a student. Both have now obtained British citizenship.
In June 1991 the appellant was badly injured by an exploding bomb. Serious operations were necessary and he has major scars to his stomach. Over the next few years he assisted the LTTE and he says that he was forced to do this.
At the end of 1995 the Sri Lankan Army captured Jaffna from the LTTE and all the civilians relocated in about March 1996 for their safety. Those who remained were killed or tortured as being LTTE supporters. Shortly after relocation, the appellant went home to collect some belongings but he was captured by the authorities. As a result of his scars he was beaten up and tortured. He was identified as being the brother of a high-ranking officer of the LTTE and was tortured for information about his brother.
He was released with a bribe from his father. He later contracted malaria severely. In January 1997, despite his weakness, he was asked to help the LTTE and did so under duress.
The appellant's parents were unhappy at his being forced to work and, in November 1999 they arranged for him to go to Vavuniya. Shortly afterwards he was again detained on suspicion of being an LTTE member. He was beaten and required to identify LTTE members. He received scarring as a result of being tortured for the information.
In February 2000 the appellant's brother-in-law paid money to obtain his release and, with the assistance of an agent, arranged for him to flee to the UK. Because of his older brother's senior position in the LTTE as well as because of the numerous scars on his body he believes that he will be detained and persecuted if he returns." [The typed emphasis is ours].
10. In evaluating the evidence at the hearing, the Adjudicator at paragraph 19 of his determination turned his attention to a medical report dated 28 May 2003 relating to the scarring to the respondent's body. He continued as follows:
"…. The report states that the scarring is consistent with his own description as to how the wounds were caused. At his Counsel's request, I inspected the appellant's scars on his chest and back although I made it clear that I did so as a layman without any medical knowledge. The scars are large and numerous and unmissible". [The typed emphasis is ours].
11. Later in his determination...
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