Upper Tribunal (Immigration and asylum chamber), 2022-10-24, PA/05575/2019
| Appeal Number | PA/05575/2019 |
| Hearing Date | 12 October 2022 |
| Published date | 08 November 2022 |
| Date | 24 October 2022 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: PA/05575/2019
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/05575/2019
THE IMMIGRATION ACTS
|
Heard at Field House On the 12 October 2022 |
Decision & Reasons Promulgated On the 24 October 2022 |
Before
UPPER TRIBUNAL JUDGE REEDS
Between
S V
(Anonymity direction made)
Appellant
AND
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Boyle, instructed on behalf of the appellant
For the Respondent: Mr Diwnycz, Senior Presenting Officer
DECISION AND REASONS
Anonymity :
Rule 14: The Tribunal Procedure(Upper Tribunal) Rules 2008:
Anonymity is granted because the facts of the appeal involve a protection claim. 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. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.
Introduction:
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The appellant, a citizen of Sri Lanka, appeals with permission against the decision of the First-tier Tribunal (hereinafter referred to as the “FtTJ”) who dismissed his protection and human rights appeal in a decision promulgated on the 30 March 2020.
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Permission to appeal was granted by FtTJ Keane on 8 June 2020.
Background:
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The history of the appellant is set out in the decision of the FtTJ, the decision letter and the evidence contained in the bundle. The appellant is a national of Sri Lanka. He first came to the UK on 20 March 2003. He claimed asylum on arrival and the claim was refused. He appealed the decision, and it was heard by the adjudicator Mrs Omotosho. The basis of his claim was that he was detained and tortured by both the EPDP and the LTTE and that he left Sri Lanka after escaping from the LTTE where he was being forcibly held against his will. The adjudicator did not believe the appellant and in the factual findings set out in her decision dated 8 July 2003 stated as follows:
“on review of all the evidence, I find the appellant not to be a credible witness “ (at [27])
“I conclude on the evidence the appellant was not forcibly conscripted in the EPDP, and although he might have had links to the organisation, I do not believe that this brought him to the adverse attention of anyone in Sri Lanka. I have already mentioned above that I do not believe his claim of arrest, detention or ill-treatment by the LTTE. I find that he is of no interest to the EPDP, the LTTE or anyone in Sri Lanka” (para 36).
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Consequently his appeal was dismissed by the adjudicator. Thereafter the appellant sought but did not obtain permission to appeal that decision.
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The appellant remained in the United Kingdom. The appellant’s wife entered the United Kingdom in 2012. They have child born in 2015. The appellant filed 2 further sets of further submissions, both of which were refused without a right of appeal. Then on 27 March 2019, he filed the third set of further submissions providing further evidence relating to sur place activities in the UK and also relying on medical evidence (NHS letter dated 25/1/ 2019).
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The respondent considered the claim and refused it in a decision taken on 29 May 2019. The material in support of the appellant’s claim was listed at page 4 of the decision letter. The respondent set out the previous decision of the adjudicator with specific reliance upon the factual findings made applying the decision in Devaseelan and that the adjudicator had found appellant to have given inconsistent and incredible evidence and that she had not accepted that he was forcibly conscripted in the EPDP nor that he would come to the adverse attention of anyone in Sri Lanka.
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The respondent considered his claim based on his sur place activities by reference to the CPIN Sri Lanka: Tamil separatism dated June 2017 and by reference to the country guidance decision in GJ and others.
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As to his sur place activities, applying the decision of GJ it was noted that the attendance at some demonstrations was insufficient to create a degree of likelihood of adverse attraction from the authorities. Consideration being given to the caselaw of BA (demonstrators in Britain – risk on return) Iran CG [2011) UK duty 36 where the Upper Tribunal identified 5 factors to consider when assessing the risk of return to Iran having regard to sur place activities of the political nature. It was considered that those factors may be applied to other nationalities including Sri Lanka (see paragraph 9 of the decision letter). Having considered those particular factors, the respondent took into account the bundle of photographs with photocopies showing the appellant holding a Tamil solidarity sign. The attendance of such demonstrations did not establish that a person was a committed member of the political group, and it was noted that there was no further evidence to support his claim to establish that he was a fully committed member of the LTTE in the United Kingdom. It was further noted that he had not established that his activities at the demonstrations would come to the adverse attention of the authorities and in the photographs he appeared to be a regular member at a demonstration and not a leader or instigator. It was considered that mere attendance to demonstration alone were not enough to establish a high political profile.
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Consideration was given to article 8 between paragraphs 11 – 14 of the decision.
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As to article 3 based on his medical condition, the respondent had regard to the CPIN; Sri Lanka – medical: disability – mental health, psychiatrist 23 February 2018 and concluded that there were care facilities medication for treating PTSD, depression and anxiety in Sri Lanka. There were antidepressants, antipsychotics and also medication used for anxiety. The only treatment he was receiving in the UK was Dosulepin, and whilst that was not listed, alternative antidepressant medications would be available. It is therefore considered that whilst it was accepted he had to medical issues there were not life-threatening and primary care treatment was available in Sri Lanka. He could access appropriate medical treatment therefore article 3 was not breached. The respondent refused his claim.
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The appellant appealed the decision to the FtTJ. In a decision promulgated on the 30 March 2020 the FtTJ dismissed the appeal. In the decision, the FtTJ set out his findings of fact and assessment of the evidence.
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The FtTJ set out at his factual findings at paragraphs 17-23. The FtTJ noted that the claim was entirely predicated on the appellant’s actions in the UK and that it was accepted by Counsel that there was nothing in the material before him intended to undermine the adjudicator’s previous findings of fact (see paragraphs 6 and 15).
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The FtTJ set out the evidence relevant to the sur place claim including photographs (paragraph 7), a photocopy of what was said to be a newspaper published in Sri Lanka containing a small photograph of the group of people demonstrating outside the magistrates court. The appellant had encircled a person’s face at the edge of the group and said it was his though the FtTJ observed that the photograph was so small and badly copied it was hard to know. However the judge accepted that he was present at that particular demonstration. The FtTJ set out the letter from the MP in Sri Lanka at paragraph 10).
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Having undertaken an assessment of the evidence, the FtTJ considered the nature and extent of his activities and noted that the earliest photographic evidence of attendance at political activities dated July 2018. The judge found that there was no evidence of any political activity during the first 15 years of his stay in the UK which led him to question the appellant’s commitment to the Tamil separatist cause (paragraph 17). At paragraph 18, the judge found that whilst he was plainly present at a number of demonstrations he did not appear to play any kind of leadership or organisational role. There was no evidence before the judge from any organisers or officials from diaspora organisations who might attest to the appellant’s role. At paragraph 18, the judge referred to “the mainstay of the appellant’s case” which was that he appeared in a photograph of a group of protesters outside the magistrates court and this photograph was published in a Sri Lankan newspaper. However the judge found there was no suggestion that he was named anywhere in the text of the newspaper; the photograph was small and have at least 20 people. The appellant was at the very edge of the photograph with his face partly obscured by a placard. The judge concluded “in my estimation it is highly unlikely that anyone who did not know that he was there would be able to identify him from this picture. “At paragraph 20, the judge gave his reasons for rejecting the letter from the MP.
In undertaking his assessment of the sur place activities, he applied the guidance in GJ and others particularly taking into account paragraph 336 and 351....
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