YS(Ceasefire - Risk on Return - Detention - Jeyachandran)
| Jurisdiction | England & Wales |
| Judge | John Freeman,Andrew Jordan |
| Judgment Date | 12 October 2017 |
| Neutral Citation | [2004] UKIAT 3 |
| Court | Immigration Appeals Tribunal |
| Date | 12 October 2017 |
[2004] UKIAT 3
IN THE IMMIGRATION APPEAL TRIBUNAL
IMMIGRATION AND ASYLUM ACTS 1971-99
John Freeman (Chairman)
Andrew Jordan (Vice-President)
Mr M Blundell for the Secretary of State
Mr J Collins (counsel instructed by Rasiah & Co) for the claimant
YS(Ceasefire — Risk on Return — Detention — Jeyachandran) Sri Lanka
This is an appeal from a decision of an adjudicator (Mr JK Stanford), sitting at Surbiton on 25 February, allowing an asylum and human rights appeal by a Tamil citizen of Sri Lanka. Leave was given to challenge the adjudicator's finding of exceptional circumstances (see below).
Jeyachandran [2002] UKIAT 01869 (written by Collins P) sets the scene for appeals of this type under current conditions, as both sides were aware. While the circumstances of each individual case (of a Sri Lanka Tamil) still need to be considered, “… it is only the exceptional cases that will not be able to return in safety.” (§ 8) Since those words were written, the situation has changed markedly for the better: in the course of the third week of September 2002, the ban on the Tamil Tigers was lifted, and peace talks started between them and the government. By 5 December, those talks had resulted in a joint declaration, described by the BBC as a ‘breakthrough’, by the government side as ‘irreversible’, and by the Tamil Tigers as ‘historic’.
While there is still no concluded peace agreement, for which the government would need a two-thirds majority in Parliament, and which the President still opposes; while negotiations between the parties are currently suspended; and while a number of atrocities leave room for doubt as to the Tamil Tigers' commitment to democracy in the areas they control, it must be perfectly clear to any reasonable person that the tide of history has turned, leaving many claims of this kind high and dry on the shores of the past. There is certainly nothing to be gained from reference to any case heard before Jeyachandran came out on 10 June 2002. We have to decide this case on an individual basis; but it remains clear that, for such an appeal to succeed, it must indeed be exceptional. The peace process is, regrettably, stalled at present; but there is nothing to show it is no longer in being. There have been recent disquieting events on the political front in Colombo; but nothing to show that the situation on the ground has changed so far, or is likely to do so in the immediately foreseeable future.
The effect of Jeyachandran was considered by the Court of Appeal in Selvaratnam [2003] EWCA Civ 121. They endorsed the approach in Jeyachandran, though they took the view that it had been misapplied in the case before them. The clearest explanation is per Peter Gibson LJ at § 16:
… it is only in exceptional cases that a person returned to Sri Lanka will attract the attention of the authorities there and that such persons are likely to be limited to those who are wanted persons. The question is whether the case of the applicant is an exceptional case as a person likely to be of interest to the Sri Lankan authorities and so likely to be detained, it being conceded that, once he is detained, there is a substantial risk of persecution.
That is the question before us in the present case
The Court of Appeal revisited the question of the approach to be taken by the Tribunal in cases of this kind in Indrakumar [2003] EWCA Civ 1677. In the judgment of Hale LJ, at paragraph 13, she sets out a number of different types of appeal. Both sides rightly agreed the one with which we are concerned is that at sub-paragraph (iv):
There are findings as to the application of those general country conditions to the facts in the particular case. There will be an inference to be drawn by the adjudicator and then, if appropriate, by the Tribunal. The Tribunal will be entitled to draw its own inferences, just as is the appellate court under the CPR, once it has detected an error in the adjudicator's approach.”
Hale LJ goes on at paragraph 14:
How should those principles be applied to this case? The question, as I have already indicated is whether the Tribunal was simply taking a different view from the adjudicator. If that were the case that would be an error of law on the part of the Tribunal, with which this Court could interfere. On the other hand, was the Tribunal, having found an error in the adjudicator's approach, simply substituting its own inferences for those drawn by the adjudicator? This is something that the Tribunal is entitled to do and this Court cannot interfere.
The history in this case is clearly set out by the adjudicator and the significant part consists in four periods of detention. First, from February to...
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