Upper Tribunal (Immigration and asylum chamber), 2020-01-31, PA/05393/2019
| Jurisdiction | UK Non-devolved |
| Date | 31 January 2020 |
| Published date | 16 March 2020 |
| Hearing Date | 16 January 2020 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | PA/05393/2019 |
Appeal Number: PA/05393/2019
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/05393/2019
THE IMMIGRATION ACTS
|
Heard at Field House |
Decision & Reasons Promulgated |
|
On 16 January 2020 |
On 31 January 2020 |
Before
UPPER TRIBUNAL JUDGE ALLEN
UPPER TRIBUNAL JUDGE FINCH
Between
R N
(anonymity direction MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms K Wass, instructed by David Benson Solicitors
For the Respondent: Ms J Isherwood, Senior Home Office Presenting Officer
DECISION AND REASONS
1. The appellant appeals with permission against the decision of a Judge of the First-tier Tribunal who dismissed his appeal against the respondent’s decision of 8 May 2019 refusing his application for asylum and/or humanitarian protection in the United Kingdom.
2. The judge set out the appellant’s immigration history. He has been in the United Kingdom since December 2001. He applied for asylum in January 2002. That application was refused in February 2002 and a subsequent appeal was dismissed in June of that year.
3. The judge in the appeal before us noted that the first judge (as we shall hereafter refer to the judge who heard the appeal in 2002) accepted that the appellant had been involved with both the army and the LTTE in the North and there was a real risk that if he was returned to his home area, one side or the other would be suspicious and would take steps to find out where he had been and that such enquiries might involve ill-treatment such as to be persecutory. The first judge, however, found that the appellant would not be at risk if he returned to Colombo. When released by the army he had not been made the subject of a reporting condition, which strongly suggested that they had no ongoing interest in him. His claim which had been accepted was that he had been forced to fight for the LTTE and had been wounded in action. When they asked him to serve with them again he left the area and went to live with his uncle. When he tried to obtain a pass to live in the area where his uncle lived he was arrested and tortured because the army believed that he was a member of the LTTE. He was released after five months when his uncle paid a bribe to a member of the EPDP. He described his release as “unofficial”. After his release he travelled to Colombo and left Sri Lanka on 24 November 2001.
4. The first judge did not accept the appellant’s claim that the LTTE had been to his home looking for him, nor did he accept that the scarring on the appellant’s body would cause the authorities to become suspicious that he had been involved in fighting on behalf of the LTTE. He also did not accept the appellant’s claim to have lost a finger as a result of a gunshot. He said that nothing about the appellant’s physical presentation suggested that his finger had been lost as a result of a gunshot wound and as he was a farmer and drove a tractor it was far more likely that he had lost a finger as a result of injuries sustained at work.
5. The first judge accepted that the appellant had subjective fears of return to Sri Lanka but concluded that his psychological state was not sufficiently serious to make relocation unduly harsh. There was a medical report which referred to some features of PTSD and moderate depression and anxiety.
6. The appellant became appeal rights exhausted on 31 July 2002. An application was made on his behalf in July 2009 for consideration under the Legacy Scheme. The application was refused in March 2011 and a subsequent application purporting to be a fresh claim was refused as not amounting to a fresh claim, in December 2012. Further representations were made subsequently and in a decision of 22 November 2017 further submissions made on 8 February 2012 were rejected on the basis that they did not amount to a fresh claim. A further application was made which led to the decision which is the subject of this appeal.
7. The judge accepted that Dr Sinha, who had provided a medical report on behalf of the appellant, had sufficient expertise to give an opinion on scarring and also on mental health issues. Dr Sinha had been provided with a medical report of Dr Taghipour which had been before the first judge. The judge, however, did not have a copy of Dr Taghipour’s report. Dr Sinha also referred to the Rule 35 medical assessment which the appellant underwent in November 2017. The judge commented that he did not have that report either, although earlier in his decision he had noted the existence of that report as part of the documentary evidence before him.
8. The judge noted the findings of the First-tier Judge including that the appellant had been tortured by the army in Sri Lanka and would be at risk in his home area. He noted, however, that since that judge’s decision the situation in Sri Lanka had changed and the LTTE had been defeated and would not pose a threat to the appellant, and risk had to be assessed on the basis of the country guidance in GJ [2013] UKUT 00319. The judge observed that individuals at risk were those whom the government considered to be a threat to the unity of the Sri Lankan state and that the appellant’s low level involvement with the LTTE was not consistent with this categorisation and therefore not consistent with his claim to be of continuing interest to the authorities.
9. The appellant had provided a lot of photographs showing him engaged in TGRTE activities. The judge commented that it was not apparent from the photographs themselves when they were taken. According to the annotations next to them, the majority were taken in 2018 and 2019. There were, however, pictures said to have been taken at a protest in Chiswick in 2013, Remembrance Day events in 2014 and 2015, a TGTE sports day in 2015, other events in 2013 and 2015, a protest in front of the Australian High Commission in 2014 and another photograph where the appellant posed with a singer of the LTTE in 2015.
10. The judge commented that there was no photographic or other cogent evidence of activity between 2009 and 2014 and that the evidence of activity between 2014 and 2018 was very limited. He considered that the photographs of these activities did not in themselves provide cogent evidence that the appellant would have come to the attention of the authorities. The judge said that, however, he took into account that the appellant claimed these were just samples of his wider activities.
11. The judge observed that the appellant had provided a lot of photographic evidence showing he had attended numerous protests/events since 2018. He considered that this was consistent with the appellant only becoming very active since 2018, shortly after his removal from the UK was stayed and the respondent was reconsidering his application for asylum.
12. The judge accepted that the photographic evidence showed that the appellant had attended a number of events, particularly in the last two years, but observed that he was just one of many attendees at these events and nothing in the photographs suggested that he in particular would come to the attention of the intelligence services of the Sri Lankan authorities. The judge noted what had been said by the Court of Appeal in KK [2019] EWCA Civ 55 that the activities of individuals participating in Tamil events and helping the TGTE by organising meetings, rallies and political campaigns and attending weekly meetings at the TGTE offices could not be considered significant enough to put them at risk on return to Sri Lanka because they did not play a “senior role” in the Tamil separatist diaspora. The judge took into account the fact that the Sri Lankan authorities use sophisticated surveillance techniques to monitor anti-government diaspora activity and that such groups were likely to be infiltrated by government agents and informants but that it was clear that the focus was on identifying leaders and not helpers or participants.
13. The judge noted also that although the appellant claimed to have been a TGTE activist since 2014 the TGTE membership card he produced was only issued in 2019. On balance, he found that the appellant had not shown that he was a leader or a senior figure in the TGTE or the Tamil diaspora. As a consequence, he did not find the appellant’s attendance at protests and events would have resulted in the authorities in Sri Lanka identifying him as an individual likely to pose a threat to the unitary Sri Lankan state and that his anti-government activities in the United Kingdom would not have brought him to the adverse attention of the authorities in Sri Lanka.
14. The judge went on to note discrepancies in the appellant’s evidence on such matters as whether he had attended two cricket matches to protest and whether he had joined the BTF. In the former case, he had at one stage said he attended protests at two matches but then said he only attended one protest, and as regards the latter, he had said he had not joined the BTF until 2009 but the letter from the BTF said he had joined in June 2014. The judge also noted that the appellant said he had always been a strong supporter of the Tamil cause, yet in his screening interview he said the LTTE had been harassing him to help them since 1994. Looking at the evidence as a...
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