Upper Tribunal (Immigration and asylum chamber), 2019-06-24, PA/01648/2016
| Jurisdiction | UK Non-devolved |
| Date | 24 June 2019 |
| Published date | 21 August 2019 |
| Hearing Date | 20 June 2019 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | PA/01648/2016 |
Appeal Number: PA/01648/2016
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01648/2016
THE IMMIGRATION ACTS
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At Field House |
Decision & Reasons Promulgated |
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Determined on the papers |
On 24 June 2019 |
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Before
UPPER TRIBUNAL JUDGE JACKSON
Between
MA
(ANONYMITY DIRECTION MADe)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
DECISION AND REASONS
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In a determination promulgated on 12 November 2018, I found an error of law in the decision of First-tier Tribunal Judge Mill promulgated on 1 June 2018, in which the Appellant’s appeal against the decision to refuse his protection and human rights claim dated 16 September 2015 was dismissed. A copy of that decision is enclosed as an annex, the contents of which set out the background to this appeal and shall not be repeated save where is necessary. Further to the error of law decision, the parties confirmed that no further evidence was to be relied upon and therefore the Appellant requested his appeal be determined on the papers, with both parties making written submissions on the appeal.
Applicable law
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It is for an Appellant to show that he is a refugee. By Article 1A(2) of the Refugee Convention, a refugee is a person who is out of the country of his or her nationality and who, owing to a well-founded fear of persecution for reasons of race, religion, nationality or membership of a particular social group or political opinion, is unable or unwilling to avail him or herself of the protection of the country of origin.
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The degree of likelihood of persecution needed to establish an entitlement to asylum is decided on a basis lower than the civil standard of the balance of probabilities. This was expressed as a “reasonable chance”, “a serious possibility” or “substantial grounds for thinking” in the various authorities. That basis of probability not only applies to the history of the matter and to the situation at the date of decision, but also to the question of persecution in the future if the Appellant were to be returned.
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Under the Refugee or Person in Need of International Protection (Qualification) Regulations 2006, a person is to be regarded as a refugee if they fall within the definition set out in Article 1A of the Refugee Convention (see above) and are not excluded by Articles 1D, 1E or 1F of the Refugee Convention (Regulation 7 of the Qualification Regulations).
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The current country guidance in relation to Sri Lanka is set out in GJ & Others (post-civil war: returnees) Sri Lanka [2013] UKUT 00319 (IAC) and summarised in the headnote to the determination. It was found that the focus of the Sri Lankan government’s concern has changed since the end of the civil war in May 2009 and the present objective is to identify Tamil activists in the diaspora who are working for Tamil separatism and to destabilise the unitary of the Sri Lankan state. The current categories of persons at real risk of persecution or serious harm on return to Sri Lanka, whether in detention or otherwise are as follows:
(7)(a) 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.
(b) Journalists (whether in print or other media) or human rights activists, who, in either case, have criticised the Sri Lankan government, in particular its human rights record, or who are associated with publications critical of the Sri Lankan government.
(c) Individuals who have given evidence to the Lessons Learned and Reconciliation Commission implicating the Sri Lankan security forces, armed forces or the Sri Lankan authorities in alleged war crimes. Among those who may have witnessed war crimes during the conflict, particularly in the No-Fire Zones in May 2009, only those who have already identified themselves by giving such evidence would be known to the Sri Lankan authorities and therefore only they are at real risk of adverse attention or persecution on return as potential or actual war crimes witnesses.
(d) 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 name appears 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.
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The Tribunal also found as follows:
(8) The Sri Lankan authorities’ approach is based on sophisticated intelligence, both as to activities within Sri Lanka and in the diaspora. The Sri Lankan authorities know that many Sri Lankan Tamils travelled abroad as economic migrants and also that everyone in the Northern Province had some level of involvement with the LTTE during the civil war. In post-conflict Sri Lanka, an individual’s past history will be 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 the Sri Lankan Government.
(9) The authorities maintain a computerised intelligence-led “watch” list. A person whose name appears on a “watch” list is not reasonably likely to be detained at the airport but will be monitored by the security services after his or her return. If that monitoring does not indicate that such a person is a Tamil activist working to destabilise the unitary Sri Lankan state or revive the internal armed conflict, the individual in question is not, in general, reasonably likely to be detained by the security forces. That will be a question of fact in each case, dependent on any diaspora activities carried out by such an individual.
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In ME (Sri Lanka) v Secretary of State for the Home Department [2018] EWCA Civ 1486, the Court of Appeal further noted the relevance of a person’s arrest after the cessation of the conflict in Sri Lanka in paragraph 16 as follows:
“The following are, in my judgment, the pertinent points. ME’s arrest took place long after the cessation of the conflict in Sri Lanka. That led (or ought to have led) to the conclusion that he was perceived at that time as being of significant interest to the authorities. He was therefore a person who had fallen into category (a) of the risk categories identified in GJ. It would have needed an exceptionally strong case to persuade the FTT that he had now ceased to be at risk. The mere fact that he was released without charge and without reporting restrictions was not enough, because the authorities not only made two subsequent visits to his home; but they also searched it. The conclusion that should be drawn from that is that ME was still a person of significant interest; and moreover, that the authorities perceived that he might have more to tell them. …”
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Paragraph 339C of the Immigration Rules provide for a grant of humanitarian protection in circumstances where a person does not qualify as a refugee but can show substantial grounds for believing that they would, if returned to their country of return, face a real risk of suffering serious harm. The applicant must be unable or owing to such risk unwilling to avail himself of the protection of that country.
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This appeal is also brought under the 2002 Act because the Appellant alleges that the Respondent has in making his decision acted in breach of the Appellant’s human rights. The Appellant relies upon Articles 2 (Right to Life) and 3 (Prohibition of Torture). The burden of proof of demonstration that the Appellant’s removal would breach this country’s obligations under the Convention rests upon the Appellant and the standard of proof is the lower standard, that there is a reasonable chance or likelihood that harm will come to the Appellant if removed.
The Appellant’s claim
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In summary, the Appellant’s claim is that he has a well-founded fear of persecution in Sri Lanka on the basis of his imputed political opinion, namely having been accused of assisting with the LTTE. His account is as follows.
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The Appellant went to visit a friend in the Eastern Province of Sri Lanka in 2009 for a holiday, during which time he was asked by his friend to deliver a parcel to the uncle of someone he met on this trip, in Colombo. The Appellant agreed and didn’t ask any questions about the contents of the parcel as he trusted his friend, dropping it off before work the following day. Two weeks later, on 28 May 2009, the Appellant states that four or five plain clothes police officers came to his home and charged him with transporting parcels for the LTTE. He was arrested, dragged out of his house and detained. During the period of detention, the Appellant was interrogated on a daily basis about the parcel, his involvement with the LTTE and so on. The Appellant was tortured on a daily basis, stripped naked; placed on blocks of ice with cold water poured on him; beaten with batons and iron rods, not given sufficient food and was sexually assaulted. The Appellant did not have any access to a lawyer, there was no formal investigation and he was not presented at court.
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The Appellant...
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