Upper Tribunal (Immigration and asylum chamber), 2020-04-28, PA/12614/2018
| Jurisdiction | UK Non-devolved |
| Date | 28 April 2020 |
| Published date | 12 May 2020 |
| Hearing Date | 11 March 2020 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | PA/12614/2018 |
Appeal Number: PA/12614/2018
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/12614/2018
THE IMMIGRATION ACTS
|
Heard at Field House |
Decision & Reasons Promulgated |
|
On 11th March 2020 |
On 28th April 2020 |
|
|
|
Before
UPPER TRIBUNAL JUDGE RIMINGTON
Between
Mr K W
(aNONYMITY DIRECTION MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms B Asanovic instructed by MTC & Co Solicitors
For the Respondent: Mr E Tufan, Senior Home Office Presenting Officer
Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.
DECISION AND REASONS
-
The appellant appeals against the decision of the Secretary of State dated 23rd October 2018 to refuse his claim for asylum, humanitarian protection and claim under the European Convention on Human Rights, specifically Articles 3 and 8. Ms Asanovic made clear the appellant was not making a ‘separate’ Article 3 claim but one that was part of the overall asylum claim. The appellant is a national of Sri Lanka, Sinhalese, and was born on 24th November 1985.
-
The appellant’s first appeal hearing took place in 2018 and a decision promulgated on 31st December 2018 by First-tier Tribunal Judge L K Gibbs who dismissed the appellant’s appeal but found him credible in respect of his account of past persecution and torture by the Sri Lankan authorities. A material error of law was found in that decision. The Upper Tribunal directed a rehearing before a different judge with the positive credibility finding in respect of his past persecution preserved. The matter was reheard by Designated Immigration Judge (DIJ) Manuell who promulgated a further decision on 26th July 2019 again dismissing the appellant’s appeal on protection and human rights grounds. On 23rd December 2019 an error of law was found in the decision of DIJ Manuell and that decision was set aside. No direction was given as to the previously preserved finding and this was maintained. The error of law was found on the basis that the judge had failed to follow the country guidance in GJ and others (post civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC).
-
The finding of First-tier Tribunal Judge Gibbs finding which was preserved states as follows:
“I am therefore satisfied that although the appellant is Sinhalese, because of his friendship with Prabu, a Tamil who was suspected of LTTE, he was detained and tortured by the Sri Lankan authorities. I find that the appellant was released because a bribe was paid and thereafter left Sri Lanka. I find that he has limited contact with his friends and family in Sri Lanka but genuinely believes that the Sri Lankan authorities remain interested in him.”
-
Judge Mailer setting aside the decision of Judge Gibbs stated as follows:
“28. In that respect, it was incumbent upon the Judge to consider whether the appellant, having previously been released on the payment of a bribe, would be recorded as an escapee or an absconder resulting in absconder action being commenced against him – paragraph [146] and paragraph [13] of Appendix J, of GJ.
29. Nor was there any consideration given as to whether the appellant would appear on a ’stop’ or ’watch list’ following his escape from detention. There was evidence which post dated GJ produced by Freedom From Torture dated 2017 regarding ongoing detention of those with imputed and low-level involvement with the LTTE after 2015. The question therefore was whether there has been a significant change in the focus of the authorities as referred to by the Judge at [36].
30. Moreover, she did not consider that there remains a computerised, intelligence led watch list. There was no evidence that the mere passage of time would lead to the removal of a person in the position of the appellant from these computerised records.”
-
Judge Mailer observed that GJ had not been adequately followed and issues raised in the appeal had not been addressed.
Immigration History
-
The appellant entered the United Kingdom travelling on his own passport on 14th September 2009 with a Tier 4 (General) Student visa endorsed. He had leave to remain until 16th November 2011. On 15th November 2011 the appellant sought to extend his Tier 4 (General) Student leave but was refused on 3rd January 2012 and on 12th January 2012 applied for further leave to remain on Article 8 grounds but that was refused on 17th January 2013. He nevertheless remained in the United Kingdom without leave. He claimed asylum on 24th October 2017.
Documentation
-
The evidence before me comprised a Home Office bundle which included the screening interview dated 1st December 2017 and an asylum interview dated 14th May 2018. The appellant’s bundle was that supplied to the First-tier Tribunal split into nineteen sections and included subjective and background material including the appellant’s witness statement and medical evidence including a psychiatric report written by Dr Chiedu Obuaya, Consultant Psychiatrist, dated 20th November 2018. This latter report was included in the appellant’s initial bundle. For the hearing before me Ms Asanovic helpfully supplied a skeleton argument together with an appellant’s supplementary bundle in fifteen sections relating to background country information.
-
At the hearing Mr Tufan referred to a “Report of a Home Office Fact-Finding Mission to Sri Lanka” conducted between 28th September and 5 October 2019 and published on 20th January 2020.
The appellant’s case
-
The appellant did not give evidence at the hearing before me but relied on his witness statement which relayed that he was a Sinhalese Buddhist and worked as a store assistant in Sri Lanka and lived at home with his parents. In 2002 he met someone by the name of Prabu Selvaraj, the same age as him, and they became very good friends albeit he was Tamil. He did not suspect Prabu had political involvement because they were young at the time but the appellant was later detained because of his association with him and when he was taken from his home he found out Prabu was an LTTE member. The last time he saw Prabu was around May 2009. In August 2009 the appellant’s home was visited and he was removed for questioning. He stated he was accused of being a person who had helped the LTTE and he was beaten and tortured. He was shown a photograph of his friend Prabu in LTTE uniform which was when he realised that he was connected to the LTTE and that he must have been in custody.
-
The appellant disclosed he was forced to drink water from a lavatory, stripped naked and hung upside down and beaten. He was questioned two to three times a day and they took his fingerprints on a blank sheet of paper and another on a piece of paper which had writing in Sinhalese on it, but he did not read the contents of the document because he was in too much pain. After about a week he was removed in a vehicle and taken to a place where he was dropped off with his face covered. He was released with the money from his uncle who is wealthy and the influence of the monk and they were able to bribe the officials to allow him to escape from detention. The appellant stated that when he applied for his visa he did not know Prabu was a member of the LTTE but the monk told him that obtaining a visa would be a safe option and that he should leave the country. The monk told him he would not have any problems getting through the airport if he went to a specific person at the counter and he was told which person to ask for at the airport.
-
When he came to the UK he thought it would be temporary and that he would be able to return. He was not aware that he could explain his problems back home and get leave on that basis and when his visa was not granted he thought he would wait and return to Sri Lanka when things got better. He was scared to approach the Home Office because he thought he might be sent back.
-
In 2017 he was thinking about returning to Sri Lanka and had booked a ticket, which was evidenced, and decided he would go back but he called his friend who told him that his mother had said he should not come back because he was not safe and there had been three visits to his parents’ home in 2016, the last being in December 2016 and that was when he approached his current solicitor who had advised him about claiming asylum. He had very little knowledge of the asylum process and it was only when he got legal advice in 2017 that he was told he should claim asylum at the Home Office.
-
The appellant claims that he will be arrested at the airport and physically, mentally and sexually abused by the police or the CID owing to his alleged association with the LTTE should he return.
The Secretary of State’s refusal
-
The Secretary of State refused his claim on protection and Article 8 family/private life...
To continue reading
Request your trial