Sivakaran v Secretary of State for the Home Department

1. LORD JUSTICE SIMON BROWN: The appellant is a 22-year old Sri Lankan Tamil who came to this country on 11 June 1999, four years ago, and immediately claimed asylum. His claim was refused by the Secretary of State on 6 March 2001. His subsequent appeal was dismissed by the adjudicator on 19 November 2001; his further appeal to the IAT was dismissed on 2 July 2002. He now appeals to this court by permission of Schiemann LJ, granted on 27 September 2002.

2. The argument raised is a very short one, illustrated by the time estimate of one hour which Schiemann LJ put upon the appeal but which in fact has proved excessive.

3. The essential facts were found by the adjudicator as follows. Like a great many other young Tamils, the appellant was obliged to give help to the LTTE. He provided only low-level assistance, consisting of carrying food from place to place and aiding injured fighters. On 20 May 1999 he was arrested and detained for nine days, during which time he was beaten and starved of food. In the course of his ill-treatment he received various wounds which eventually left him with scarring, most notably a scar on the forehead from a wound just above the left eye received when he was hit with a pole. He was treated for these various wounds, or at any rate that on his forehead, by an army doctor. He apparently signed a statement admitting to his limited involvement with the LTTE and two days later, when his father paid a bribe, he was released. He had no trouble leaving the country the following month.

4. The appeal turns on the question of the scarring and the suggested likelihood that, as a result of it, if returned to Sri Lanka the appellant would be interrogated and ill-treated at the airport. It is a familiar point.

5. Before turning to the determinations respectively of the adjudicator and the IAT, it is convenient first to set out paragraph 5.2.22 of the April 2002 Home Office Sri Lanka country assessment, to which, as we shall see, the tribunal referred:

"5.2.22 The UNHCR has indicated that Tamil asylum seekers with scars, should they be returned to Sri Lanka, may be more prone to adverse identification by the security forces and taken for rigorous questioning and potential ill-treatment. However, they also note that no particular distinctions can be made as to which type of scar may lead to potential ill treatment. This depends on the particular circumstances of the returned person and the significance an individual officer attaches to the types of scars in evidence. Recent advice from the Foreign and Commonwealth Office, based on discussion with several Non-Governmental Organisations, journalists and MP's in Sri Lanka supports that view."

6. The adjudicator's central conclusions in the case are to be found in paragraphs 14 and 15 of her determination:

"14. Having heard and seen the appellant give his evidence I am satisfied that that evidence was to a very large extent consistent and I take that to be in his favour. I did not consider that the two discrepancies regarding his treatment in custody seriously undermined the credibility of that account. I accept his claim that he helped the LTTE. They are a terrorist organisation and therefore the authorities would have a legitimate interest in investigating them and those who gave them assistance although ill-treatment could not be condoned. I accept that he may have been badly treated in detention but note that the authorities gave him medical assistance and then released him, albeit on payment of a bribe. I was not satisfied that if they considered him a serious threat he would have been released.

15. I have regard to the scarring. Much of it was small, insignificant and on parts of his body ordinarily covered by clothing. The only significant scar was the one on his forehead. The scar under his lip required immensely close scrutiny to be observable. With regard to the scar on his forehead I agreed with Mr Dawodu that the appellant had an explanation for it which could easily be verified by the authorities. He had left the country with that visible scar without any difficulty. It is clear from the background documentation that the Sri Lankan authorities consider the threat from the LTTE and those that assist them as a very serious one. If they had concerns about the appellant's scar I do not believe that they would have allowed him to leave so easily. I do not consider that there would be any threat to him on his return."

7. A vice-president of the IAT gave permission to appeal against that determination in respect of the issue of whether the adjudicator's approach to the appellant's scarring, and her conclusions on lack of risk on return despite the scars, were flawed.

8. I come therefore to the decision under appeal, the IAT's determination of 2 July 2002. Having set out the basic facts and background to the appeal, the IAT observed in paragraph 6:

" .... we have to examine the issue of scarring against the backdrop that the Sri Lankan authorities may well have a record of or may come to learn of the appellant being suspected of LTTE involvement in 1999, albeit not thereafter."

In paragraph 7 the tribunal noted that counsel for the appellant (not, I may say, Mr Chatwin, who appears for him today and who, it appears, is in fact the fifth counsel to act on his behalf in these proceedings):

".... did not urge us to depart from the settled 'common-sense' approach to the scarring issue taken by the Tribunal in numerous cases previously. Rather he urged us to consider, in combination with the fact that the appellant would be known to the authorities, that his scarring would lead them to treat him adversely upon return to the airport in Colombo. He placed particular emphasis in this regard on the fact that the appellant's scarring was significant and included a very prominent scar on his forehead. He said that such scarring fell into the category of what UNHCR representatives had described as 'obvious scarring' or as scars that would be viewed as torture-related."

9. There was then reference to an earlier tribunal decision in Brinston [2002] UKIAT 01547, but I need not deal with that beyond noting with approval the tribunal's own statement later in the determination presently under appeal, at paragraph 12, that the IAT in Brinston :

".... certainly did not intend that adjudicators abandon the common sense approach to scarring which takes as its premise that one looks at the individual circumstances of each particular case and eschews reliance on previous Tribunal cases whose assessments are individual-specific. We hope to see no repetition of this type of exercise."

10. I shall read next paragraph 8 of the determination:

"We did not find it necessary in this case to decide whether recent events in Sri Lanka had significantly depleted or alleviated the level of risk facing returnee Tamils. That was because we concluded the appeal failed even on the assumption that things had not got any better since the cease-fire."

In paragraph 9 the tribunal quoted verbatim paragraph 15 of the adjudicator's determination which I have already set out above.

11. Finally I must read paragraphs 10, 11, 13 and 14 of the tribunal's determination, the determinative part of their decision:

"10. Having examined photos of the appellant's scarring together with what was said about them in the medical report, we consider these findings of the adjudicator to be entirely sustainable. We ourselves doubt that any of the appellant's scars properly qualify as 'significant', but we are prepared to accept the adjudicator's assessment of the scar on the forehead as significant. Equally, however, we think she was fully justified in concluding that the authorities would quickly be satisfied by the appellant's explanation as to how he came to have it, since an army doctor had tended it. It may well be that persons leaving Sri Lanka are not examined as to their scarring as closely as they can be on return, but it remains valid in our view for the adjudicator to have treated the ease of the appellant's exit as relevant to the issue of risk of scarring on return, particularly given that his only significant scar when he left (as now) had been a facial one.

11. Mr Woolridge has urged us to treat as decisive recent UNHCR pronouncements on scarring, in particular, the reference to risk where there is 'obvious scarring', by reference to the text of a letter given in the Brinston determination. However, even if we accept that the appellant's scarring (that on his face at least) was 'obvious', we do not take anything said by UNHCR recently to differ significantly from their previous position that the Sri Lankan authorities will look at scarring in the context of the individual circumstances of each returnee who comes before them. That position is accurately summarised at paragraph 5.2.22 of the April 2000 CIPU report.

.... .... ....

13. Applying the criteria identified by the UNHCR as summarised in the latest CIPU report to this case, it can be assumed the authorities would learn of the appellant's previous detention: indeed the appellant himself would need to tell them about that, at least if he was asked about his facial scar. By the same token, the authorities would then learn of his explanation and would also learn that he had been released after a relatively short period. In the absence of any scarring which was obviously combat or torture-related, they would be highly unlikely, therefore, to regard the appellant as someone involved with the LTTE or as requiring more intensive interrogation.

In short, we are not at all persuaded that the adjudicator erred in the approach she took to the issue of risk on return due to scarring."

12. The point now taken by Mr Chatwin, in submissions which are entirely faithful to a skeleton argument prepared for the court by his immediate predecessor, Mr Declan O'Callaghan, is really quite a simple one. It focuses most particularly on the final sentence of paragraph 13 of the tribunal's determination, which for convenience I now repeat:

"In the absence of any scarring which was obviously combat or torture-related, they would be highly unlikely, therefore, to regard the appellant as someone involved with the LTTE or as requiring more intensive interrogation."

There is, submits counsel, an evident flaw and inconsistency in the determination. The tribunal had already expressly accepted that the scarring -- I refer particularly to the forehead scar as the only truly significant scarring -- was "torture-related" in the sense that it was inflicted by a blow struck with a pole during the appellant's detention in 1999 and was treated by an army doctor, and the tribunal had accepted too that the authorities would learn -- indeed would likely be told by the appellant himself -- about the circumstances in which the wound had been inflicted and in which he had come to be been detained and released. Accordingly, runs the argument, the IAT erred in failing to conclude that the appellant would fall within the very risk category which they themselves were there identifying and would in the result be at serious risk of further ill-treatment were he to be returned to Sri Lanka.

13. Although at first blush a plausible, perhaps even powerful, argument, on closer consideration it has seemed to me ultimately to involve an altogether too mechanical approach to this questions of scarring. As the UNHCR make plain, all these cases in the end turn on their own facts and regard must always be had not only to the nature of the scarring, but also to the very particular and individual circumstances of each putative returnee. That indeed is a recurrent theme of the tribunal's determination from first to last, exemplified by their treatment of the earlier tribunal decision in Brinston . It seems to me that what the IAT were finding here (and on the facts were entitled to find) was that although this appellant's forehead scar might well lead the Sri Lankan authorities to question him on his return, they would quickly discover that, albeit he had indeed been ill-treated during his detention four years previously, he had then been treated by an army doctor and released after only a relatively short period. They would not, in short, regard him as someone still in any way involved with the LTTE or constituting a threat to the authorities so as to give rise to any real risk of future persecution. That was ultimately the question for their determination, and it was a judgment essentially on the facts for the tribunal to take, the tribunal being of course an expert body with considerable experience in making assessments in this field. No doubt paragraph 13 of the tribunal's determination could have been better drafted to reflect that conclusion. That, of course, is all too often the case. For my part, however, I am quite satisfied that that is what the tribunal here were finding on the facts and that it is quite unrealistic to suppose otherwise.

14. I would accordingly dismiss this appeal.

15. LORD JUSTICE CARNWORTH: I agree.

ORDER: Appeal dismissed. No order as to costs.

(Order not part of approved judgment)