ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
(DR R KEKIC)
Royal Courts of Justice
Strand
London, WC2
B E F O R E:
LORD JUSTICE WALLER
LORD JUSTICE TUCKEY
SIR CHARLES MANTELL
NAVARATNAM NIRMALANATHAN
Appellant
-v-
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
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MR S COX (instructed by Van-Arkadie & Co) appeared on behalf of the Applicant
MR P PATEL (instructed by Treasury Solicitor) appeared on behalf of the Respondent
J U D G M E N T
LORD JUSTICE TUCKEY: This is an appeal by Navaratnam Nirmalanathan with the permission of Laws LJ from a decision of the Immigration Appeal Tribunal allowing an appeal by the Secretary of State from a decision of an Adjudicator, who in turn had allowed the appellant's appeal from the Secretary of State's rejection of his claim for asylum.
The appellant is a 31 year-old Sri Lankan Tamil. He arrived in the United Kingdom in March 2000 and claimed asylum. The basis of his claim was that he feared persecution from the Sri Lankan authorities and from the LTTE (the Tamil Tigers) of which he had been a supporter. The Adjudicator found the applicant to be credible. His evidence was that whilst living with his parents in an area of the Jaffna peninsula which was controlled by the LTTE he had become one of their supporters. When in 1995 the army captured this area he moved to another area still controlled by the LTTE where he continued to support them and helped recruit members to their cause.
There was a statement before the Tribunal from the appellant's mother, which they appear to have accepted, that from mid-1996 the army repeatedly visited their home, asking them to disclose the appellant's whereabouts or hand him over to them as an LTTE member. They backed these requests up with threats to kill the parents. They came again on 17th February 1998, after an incident in which three soldiers had been killed, and arrested the father when he said that he did not know where the appellant was. Before taking him away they assaulted the father and said "your Tiger son will come to us if we take you away".
The following day the mother learned that her husband had been killed. He had been shot in the head. The Adjudicator found that it was likely that the authorities were responsible for his death. Immediately after his father's death the appellant's younger brother left home and joined the LTTE as a combatant. In the meantime, the appellant remained in the LTTE-controlled area. He resisted increasing pressure from the LTTE to undergo military training and become a fighter, and formed a relationship with a female LTTE member, which was forbidden. When the LTTE arrested her he fled because a friend warned him that he was also at risk.
His mother's statement said that after her husband's death, and up until at least May 2002, the authorities had continued to be interested in the whereabouts of the appellant and his younger brother. At one point his sisters were arrested. They were subsequently ordered to attend an army camp weekly where they were asked about the appellant's whereabouts.
The appellant produced letters from his mother, which the Adjudicator accepted as genuine, saying that it was not safe for him to return. The appellant's case was that if returned to Sri Lanka he feared what the authorities would do to him because of his connection with the LTTE, and what the LTTE would do to him because of the circumstances in which he had left them.
By the time the Adjudicator came to deal with the matter in September 2002, there had been a ceasefire in Sri Lanka for a number of months. Some Tamils however remained at risk and the question the Adjudicator asked herself was whether the appellant would stand out from the average Tamil asylum seeker being returned to Colombo. It is not clear precisely what information the Adjudicator had before her in order to make this assessment, but she said that she had been greatly assisted by a report from Dr Good. Dr Good is a reputable expert on country conditions in Sri Lanka. His report, dated 15th July 2002, dealt at length with the then current political situation. He expressed doubts about whether the LTTE were really capable of the cultural transformation necessary for lasting peace. He also dealt with the risk to failed asylum seekers when they arrived at the airport in Colombo.
The Adjudicator noted that counsel for the appellant had referred to several recent Tribunal decisions, all of which made the point that not every Tamil could be safely returned, even with the current ceasefire, and that each case had to be considered on its merits. She did not identify the decisions to which she referred, but they must have included the starred decision in Jeyachandran [2002] UKIAT 01869, a country guidance determination of a panel of the IAT presided over by its then President, Collins J, which was published on 10th June 2002.
In the course of his judgment in that case Collins J said at paragraph 8:
"The reality is in our judgment that it is as yet premature to accept that everyone who has claimed asylum in this country would be able to return safely [to Sri Lanka]. We certainly are of the view that in the present situation and having regard to the present trends it is only the exceptional cases that will not be able to return in safety."
In paragraph 9 he said:
"It is still too early to be satisfied that the situation has changed to such an extent that there is now no risk to anyone. Equally we take the view that there are few who now would be at risk, but it is necessary always to consider the circumstances of each individual case."
No doubt these are the passages which the Adjudicator was referring to. She concluded:
"Based on the objective evidence before me and the determinations relied on by [counsel], I reach the following conclusions. I find that on return at the airport the appellant's details would be checked and it would be reasonably likely that, although he has never been arrested or detained in the past, his father's arrest and killing by the authorities would become known as would the fact that the appellant's brother is an LTTE fighter. I accept the appellant's evidence that he was being sought by the army for some time before his father's death and therefore I find that he would be on army records as someone of interest to them. It is reasonably likely therefore, in my view, that despite the current developments in Sri Lanka, the appellant would be at risk from the authorities on return for his activities over many years with the LTTE. It is clear from the objective evidence that the level of involvement is not important in the eyes of the authorities, mere support can lead to grave difficulties and I find that given the background of the appellant he would be at risk if returned to Sri Lanka ... The manner in which the LTTE deal with those they consider to be traitors to the cause is well documented in the objective evidence. I find that the appellant's refusal to fight for the LTTE and his flight from the country would lead to him being considered as a traitor. This would open him up to the serious possibility of harm. His affair with a female LTTE fighter may have also angered the LTTE; this is an additional factor which would put him at risk ... For all these reasons I find that the appellant would not be safe in either an army or LTTE controlled area. I find that his is an exceptional case and on the basis of all the evidence before me I find that there is a reasonable degree of likelihood that the appellant would be at risk were he returned to Sri Lanka at the present time."
The Secretary of State appealed to the Tribunal on the ground that the appellant had not shown that either his father's arrest and killing or his brother's involvement with the LTTE would be known to the authorities. In their decision, after reciting some of the facts, the Tribunal turned to the objective evidence. They said that it was not clear what evidence the Adjudicator had seen or whether she had been referred to the decision in Jeyachandran. As I have already said, I think she must have been. The Tribunal then say:
"The Adjudicator based her determination, however, entirely, to the exclusion of all else, upon the expert report produced to her of Dr Good."
They accepted that Dr Good's reputation was well-known but added:
"To rely upon that report alone, however, does create a risk of the final conclusion being unbalanced."
That is what the IAT concluded the Adjudicator had done. They said:
"It seems to us that the Adjudicator misled herself by concentrating her attention entirely upon the report of Dr Good which, whilst we accord him every respect for his expertise, nevertheless for the reasons which we have pointed out does not alone provide the full picture and in our view the conclusion to which the Adjudicator came upon the totality of the evidence in this case was plainly wrong."
So what were their reasons for this conclusion? They first of all referred to the fact that since Dr Good's report the LTTE were no longer a proscribed organisation and had announced that they did not want independence. So, the Tribunal commented, "matters have progressed". But they qualified this by saying "not entirely in every instance" without further elaboration.
The essence of the Tribunal's reasons are to be found in paragraphs 14 and 16 of their decision. In paragraph 14 they said:
"The Respondent had never been detained or arrested by the authorities. There was anecdotal evidence that they had been seeking him and had detained his father in an effort to obtain news of his whereabouts. There is no evidence to suggest that the authorities considered the Respondent's father to be involved in the LTTE. Those who have been involved with the organisation as combatants have been allowed to move about freely in Sri Lanka since the ceasefire and indeed the main criticism of Dr Good is the laxity of the authorities of which he believes the LTTE are and will be taking advantage."
I think this paragraph understates the position and it strikes me as unconvincing. The Adjudicator expressly took into account the fact that the appellant had never been detained or arrested. The evidence was that the authorities had persistently sought news of the appellant's whereabouts, and not just when his father was detained. It had never been suggested that the father was a member of the LTTE. If he was arrested and killed in the authority's attempt to get hold of the appellant, this is a strong indication of how much they wanted the appellant.
In paragraph 16 the Tribunal said:
"The Respondent fled Sri Lanka not because of the authorities but because he wished to avoid pressure from the LTTE to become a combatant, and because he had broken the rules by having a girlfriend. There is nothing clear about why, or even by whom the Respondent's father was killed. Although he did not flee until 2000 all the material events happened at least 7 years ago. We can find no basis upon which the Adjudicator was entitled to find that the authorities would have any interest in the Respondent now, nor why the LTTE should be concerned about him."
This paragraph is again open to much the same criticism. The Adjudicator had found that it was likely that the authorities were responsible for the father's death. "At least seven years ago" meant that the Tribunal thought that there was no material event after 1996. That was obviously wrong. Furthermore, in neither of these two paragraphs do the Tribunal deal in terms with the Secretary of State's grounds of appeal.
For these reasons, I am left with the impression, as Laws LJ obviously was, that the Tribunal did not really get to grips with the factual basis of the appellant's claim. I think the Adjudicator self-evidently did. The appellant was therefore entitled to a properly reasoned decision from the Tribunal explaining why they thought her decision was wrong. I do not think this is such a decision. Not only do I think the reasoning in the two paragraphs to which I have referred is flawed, but the whole decision seems to be premised on the fact that the Adjudicator did not have regard for the decision in Jeyachandran and relied solely on the report of Dr Good, neither of which premise was, I think, correct.
Mr Patel, for the Secretary of State, seeks to defend the Tribunal's decision, although he concedes that its reasoning is not a model of its kind. But, he says, if one looks at the decision as a whole, one can discern that the Tribunal concluded that the Adjudicator had got it wrong and then embarked upon their own assessment of the risk to the appellant and, for the reasons which they gave in paragraphs 14 and 16, decided that this was not an exceptional case.
I cannot accept this submission. It seems to me that if the Tribunal had taken the Adjudicator's assessment of the situation at the time she made her decision in September 2002, and then looked at the objective evidence about country conditions since that time and concluded that the adjudicator's decision could not stand because the evidence no longer supported the fact that this was an exceptional case, that would have been understandable and such a decision would be unassailable in this court. But that is not what the Tribunal did. What they appear to have done is water down the factual basis of the appellant's case accepted by the Adjudicator in order to justify their conclusion that she was wrong.
I am not saying that on a proper consideration of the objective evidence about country conditions in Sri Lanka it would not have been open to the Tribunal to allow this appeal, but if that is what they did the appellant was entitled to be given reasons for that conclusion. The reasons this Tribunal gave did not support their conclusion.
For those reasons I would allow this appeal. We have a discretion as to whether to remit the appeal to the Tribunal for a rehearing or, as Mr Cox, for the appellant, invites us to do, to say that the Adjudicator's decision should stand. The basis for Mr Cox's submission is that the Tribunal could not have reached any conclusion different from that of the Adjudicator on the facts of this case. In support of that submission he relies upon the facts in Jeyachandran itself and another case decided by this court. He says those facts are indistinguishable from the facts in this case, which are, if anything, stronger, and therefore it would not be right for us to remit the case for further consideration by the Tribunal.
I do not accept these submissions. As I have already said, there may well have been objective evidence upon which the Tribunal in this case could have allowed the Secretary of State's appeal. Furthermore, conditions have changed and it may be that objective evidence of the present situation in Sri Lanka would justify allowing the appeal. So there should be a rehearing before the Tribunal. I do not think it would be right to conclude here and now that the Adjudicator's decision should stand.
SIR CHARLES MANTELL: I agree that this appeal should be allowed for the reasons given, and also that the matter should be remitted for reconsideration by the Tribunal.
LORD JUSTICE WALLER: I agree also.
Order: appeal allowed.