Upper Tribunal (Immigration and asylum chamber), 2020-03-02, PA/02906/2016
| Jurisdiction | UK Non-devolved |
| Date | 02 March 2020 |
| Published date | 23 March 2020 |
| Hearing Date | 03 February 2020 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | PA/02906/2016 |
Appeal Numbers: PA/02906/2016
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02906/2016
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 3 February 2020 |
On 2 March 2020 |
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Before
UPPER TRIBUNAL JUDGE FINCH
Between
JS
Appellant
-and-
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr. R. Halim, of counsel, instructed by Fadiga & Co Solicitors
For the Respondent: Ms A. Everett, Home Office Presenting Officer
DECISION AND REASONS
BACKGROUND TO THE APPEAL
1. The Appellant is a national of Sri Lanka, who was born and was brought up in Killinochchi. He is of Tamil origin. It is his case that in 2001, when he was 12 years old, his mother and sister were killed in a bomb blast caused by the Sri Lankan authorities, which destroyed the Appellant’s home. His father was working abroad at the time and his brothers were away. He had no one to assist him and he was taken in by the LTTE, who took him to a camp where he received some basic military training.
2. When his father came back, he and the Appellant’s elder brother visited him but the Appellant was not permitted to leave the camp. The Appellant had to undertake work around the camp and was also taught Sinhalese. He was then told that he was going to be sent to collect intelligence on behalf of the LTTE. He was placed as a servant in the home of [KB], an army officer, near Colombo. When he was permitted to have some time off, he would pass any information that he had discovered to his LTTE handlers.
3. The fact that the Appellant was acting as a spy was disclosed by the army officer’s cook, when he was interrogated over a separate matter, in August 2004. The Appellant was detained by the Sri Lankan authorities in a military camp, where he was tortured on a very regular basis. In November 2005 the LTTE arranged for him to be assisted to escape from the camp and he then went into hiding with a family.
4. An agent then assisted the Appellant to obtain a student visa, which was valid from 21 September 2006 until 30 June 2009, and he arrived in the United Kingdom on 30 September 2006. From then until March 2011, the Appellant lived with and worked for a Sri Lankan family in their home. He was not able to stay with them after they were allocated social housing and became homeless. He also began to abuse alcohol at that time.
5. On 24 November 2011 the Appellant was convicted on one count of assault occasioning actual bodily harm and one count of theft and sentenced to 9 months in prison. On 5 June 2013 he was convicted of destroying or damaging property and being drunk and disorderly and given a conditional discharge. On 28 July 2014 he was convicted of using threatening, abusive or insulting words and sentenced to 16 weeks in prison, suspended for 12 months. Then on 13 July 2015 the Appellant was convicted on one count of assault occasioning actual bodily harm and one count of breach of a suspended sentence and sentenced to a total of 18 months imprisonment.
6. On 27 July 2015 the Appellant was served with a decision to make a deportation order and on 9 March 2016 his subsequent protection and human rights claims were refused and the Respondent maintained her decision to deport him from the United Kingdom.
7. The Appellant appealed and First-tier Tribunal Judge Grant dismissed his appeal in a determination promulgated on 6 March 2017. The Upper Tribunal subsequently refused the Appellant permission to appeal on 9 November 2017 and the Appellant challenged this decision and on 17 December 2018 Lord Justice Henderson granted him permission to apply for a judicial review of the Upper Tribunal’s decision. On 2 April 2019 the Upper Tribunal set aside the Upper Tribunal’s previous decision and remitted his appeal to the First-tier Tribunal. First-tier Tribunal Chana then dismissed his appeal once more in a decision promulgated on 19 September 2019.
8. The Appellant appealed and her decision was set aside by consent at a hearing before Upper Tribunal Judge Rintoul on 18 December 2019.
RESUMED HEARING
9. In his decision, dated 17 December 2019, Upper Tribunal Judge Rintoul recorded that the Respondent had indicated that there was no objection to the Appellant raising as a new matter his relationship with his partner but had stated that this had to be confirmed in writing. In an email, dated 24 December 2019, the Respondent confirmed that she had no objection to the Appellant raising his relationship with his partner as a new matter.
10. Upper Tribunal Judge Rintoul has also directed that any new material upon which either party wished to rely had to be served at least 10 working days before the hearing. No such material has been filed and served. However, counsel has helpfully put the documents previously emailed to the Home Office on 31 July 2019 into a ring binder and he also handed in a skeleton argument, dated 2 February 2020, at the hearing. In addition, he handed up a Country Evidence Bundle, which I admitted as it was of use to the Upper Tribunal and was material of which both the Upper Tribunal and the Respondent would have previously been aware.
11. The Home Office Presenting Officer accepted that the Appellant was a vulnerable witness and that subjecting him to cross examination was unlikely to add much to the Respondent’s case. However, she made it clear that she would be relying on the refusal letter, dated 9 March 2016. She also submitted that, even taking the Appellant’s case at its highest, he had not established that he would be at risk on return to Sri Lanka. Therefore, the Appellant’s witness statement, dated 31 July 2019, was formally put to him and he adopted it. He was not asked any further questions.
12. The Appellant’s partner, M.D., was then called and adopted her witness statement, dated 11 December 2018. When cross-examined, she said that the Appellant had told her that he was not in touch with anyone in Sri Lanka and that he had only ever told her about the torture which he had experienced in Sri Lanka, as a child.
13. Both the Home Office Presenting Officer and counsel for the Appellant then made oral submissions and I have taken these into account then reaching my decision below.
DECISION
THE APPELLANT’S VULNERABILITY
14. In paragraph 30 of AM (Afghanistan) v Secretary of State for the Home Department [2017] EWCA Civ 1123, Sir Ernest Ryder, Senior President of Tribunals noted that:
“To assist parties and tribunals a Practice Direction ‘First-tier and Upper Tribunal Child, Vulnerable Adult and Sensitive Witnesses’, was issued by the Senior President, Sir Robert Carnwath, with the agreement of the Lord Chancellor on 30 October 2008. In addition, joint Presidential Guidance Note No 2 of 2010 was issued by the then President of UTIAC, Blake J and the acting President of the FtT (IAC), Judge Arfon-Jones. The directions and guidance contained in them are to be followed and for the convenience of practitioners, they are annexed to this judgment. Failure to follow them will most likely be a material error of law…”
15. He continued in paragraph 31 to explain that:
“The PD and the Guidance Note [Guidance] provide detailed guidance on the approach to be adopted by the tribunal to an incapacitated or vulnerable person. I agree with the Lord Chancellor’s submission that there are five key features:
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the early identification of issues of vulnerability is encouraged, if at all possible, before any substantive hearing through the use of a CMRH or pre-hearing review (Guidance [4] and [5]);
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a person who is incapacitated or vulnerable will only need to attend as a witness to give oral evidence where the tribunal determines that “the evidence is necessary to enable the fair hearing of the case and their welfare would not be prejudiced by doing so” (PD [2] and Guidance [8] and [9]);
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where an incapacitated or vulnerable person does give oral evidence, detailed provision is to be made to ensure their welfare is protected before and during the hearing (PD [6] and [7] and Guidance [10]);
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it is necessary to give special consideration to all of the personal circumstances of an incapacitated or vulnerable person in assessing their evidence (Guidance [10.2] to [15]); and
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relevant additional sources of guidance are identified in the Guidance including from international bodies (Guidance Annex A [22] to [27]).
16. Paragraph 32 also states that:
“In addition, the Guidance at [4] and [5] makes it clear that one of the purposes of the early identification of issues of vulnerability is to minimise exposure to harm of vulnerable individuals. The Guidance at [5.1] warns representatives that they may fail to recognise vulnerability and they might consider it appropriate to suggest that an appropriate adult attends with the vulnerable witness to give him or her assistance. That said, the primary responsibility for identifying vulnerabilities must rest with the appellant’s representatives who are better placed than the Secretary of State’s representatives to have access to private medical and personal information. Appellant’s...
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