KP (Sri Lanka) v Secretary of State for the Home Department

LORD JUSTICE PILL: This is an appeal by Mr KP against a decision of the Asylum and Immigration Tribunal prepared on 16 January 2006. The tribunal dismissed appeals by the appellant, both on asylum grounds and on human rights grounds. It is only the asylum ground which is pursued.

The appellant is 35 years old and a citizen of Sri Lanka. He appeals against a decision on 7 October 2002 of the Secretary of the Home Department to refuse to grant him asylum, and he appeals against the decision to remove him as an illegal entrant. He arrived in the United Kingdom clandestinely in May 2002. The appellant has suffered from ill health. He did not give oral evidence before the tribunal. The tribunal had a record of his interview and a written statement together with oral evidence from those who were assisting him in the United Kingdom. Medical evidence was also available, including evidence as to physical signs, including scarring, which the appellant showed on examination by Dr Seear on 13 December 2005.

The appellant seeks a remission of the case to the tribunal for a comprehensive consideration of his application for asylum. That there should be a remission is not opposed by the Secretary of State; the issue is as to the scope of that remission. The contention on behalf of the Secretary of State is that the tribunal’s adverse findings as to the appellant’s credibility should not be reconsidered upon a remission.

In the circumstances the appellant’s case before the tribunal can be summarised briefly. His claim was that he had been involved in trading in Sri Lanka across the border between LTTE-controlled and government-controlled areas. He claimed to have been detained at different times, by the army and by the LTTE, and in each case was accused of collaborating with the other side. The tribunal have set out in considerable detail the appellant’s evidence, along with submissions on his behalf and the case presented by a presenting officer on behalf of the Secretary of State.

The tribunal did not accept the credibility of the appellant. Having dealt with the facts in some detail at paragraphs 33 and 34, they concluded at paragraph 35:

“Overall we found the Appellant was not telling the truth about his experiences in Sri Lanka and consequently we find that there is no credible evidence that he is at risk of arrest or ill-treatment on his return either to Colombo nor his home area where his family are based and apparently continue to reside in a region where LTTE authority holds sway.”

In addition to the evidence I have mentioned, evidence was available on the appellant’s behalf from Dr Smith, who is an authority upon conditions in Sri Lanka. He stated in his report that the appellant’s complaints appear to him to have been consistent with what he knows of conditions in that country at the material time.

The reason why the need for a remission is conceded by the Secretary of State is set out in Mr Palmer’s skeleton argument at paragraphs 15 and following. Having made the point that the relevance of Dr Smith’s expert report is limited in the circumstances, it is conceded that the report goes wider than a mere consideration of the credibility of the appellant, which of course in the end is a question for the fact-finding tribunal and not for an expert witness. It is conceded that the Home Office evidence as to conditions in Sri Lanka was current only up to 1 July 2005 and that since that date that there is evidence, which requires consideration by the tribunal, that the situation had worsened in Sri Lanka. Dr Smith refers to an alleged heightening of tension since the assassination of the Foreign Minister on 12 August 2005.

The Secretary of State concedes that the risk on return may have been altered as a result of the changed circumstances in Sri Lanka. He has not conceded that it has been altered; he merely concedes that there was evidence which required consideration by the tribunal and was not sufficiently given, as to the risk of return in the light of the more up to date evidence which Dr Smith provided.

Points made are first that, if returned, the appellant would be returned on an emergency travel document, and without proper identification documents he might come to the adverse attention of the authorities. Secondly, the scarring, which it is conceded the appellant bears, could be a significant indicator of suspicion on behalf of the authorities. Thirdly, there is evidence as to the appellant’s psychological condition, which would mean that he would arrive at the airport in Sri Lanka in an agitated condition, giving rise to body language which would alert the authorities to single him out for questioning and possibly detention.

Those matters do not necessarily involve -- I make no conclusive finding on the point -- the appellant’s credibility. However, a further point is made which clearly is relevant to that:

“The fact that the appellant [has] been previously detained and released does not mean that the authorities have no further interest in him. He will be known to have been suspected in the past of LTTE membership”

That is a proper acceptance by the Secretary of State that the history of the appellant’s conduct in Sri Lanka may be relevant to the extent of the risk of return.

On behalf of the appellant, Mr Mackenzie’s first point is that the findings of fact by the tribunal are insufficiently clear and insufficiently reasoned, and that upon a remission it is necessary for the tribunal to reassess the question of credibility. I see considerable force in that submission. At paragraph 34 the tribunal found:

“We do not find the Appellant's account credible in any event. His alleged encounters with the Army and the LTTE could not be evidentially tested in any way. On the face of it his account was unconvincing and lacked substantive support of the kind that could have been available as corroborative evidence if true. His claim that his influential uncle in Vavaniya, a bank manager no less, had helped him on diverse occasions should have been capable of verification by his uncle or his family whom we note are in monthly telephone contact with the Appellant and his carers. There is no independent statement from any member of the family who might have direct knowledge of the purported deaths of the Appellant's father and brother in the Tsunami ordeal nor are there death certificates produced or other independent verification. We also make adverse findings about the credibility of his escape from the LTTE prison camp and the manner in which he was able to avoid detection as he crossed to the Army controlled sector of the province. It is not credible that the Appellant was released, repeatedly, if he had been of any interest to the authorities or the LTTE. That may in a sense square with the Appellant's own account of no involvement with the LTTE or the Army at the time. On his own account of the various detentions they were marked by the fact that following purported enquiries by the various parties holding him he was repeatedly released without charge or further punishment. According to Dr Seear his scars to his lower limbs are consistent with the type of treatment meted out in Sri Lankan detention or ill treatment cases. They are of course equally consistent with all sorts of other incidents and accidents that commonly afflict a rural or agrarian population inhabiting the parts of the island where the Appellant comes from. We have to consider this medical evidence in the round and we are not satisfied that it provides the necessary underpinning to the Appellant’s account which would make the evidence and account any the more credible in our view. It is equally implausible that he would have been able to travel considerable distances through Government areas with identity documents to reach a port unhindered and thereafter leave the country through the tight security arrangements that must have been in place at that time of high tension in the civil war and the impending ceasefire.”

Undoubtedly there was in this case real cause for concern, on any view of the evidence, about the appellant’s credibility. Reference has been made to the lack of any supporting evidence, even though it is suggested that the appellant lost members of his family in the Tsunami of two years ago. There were references to an attack by a MIG fighter and to an alleged escape in circumstances which the tribunal, as a specialist tribunal aware of the situation in Sri Lanka, might find surprising.

I do not refer to the matter comprehensively but those concerns were, in my judgment, legitimate. The Secretary of State referred, in the reasons cited, to the “fact” that the appellant had been previously detained. Mr Mackenzie submits that the prior treatment of the appellant as found by the tribunal was likely to be a factor in assessing his risk on return, and that would apply whether any alleged ill-treatment had come from the LTTE or from the government, or whether it indicated links with either of those parties which on return the authorities might consider to be relevant to treatment of the appellant.

In my judgment it is far from clear what findings of fact the tribunal have made in relation to the detention of the appellant, notably by the LTTE, and the duration of that detention and the nature of that detention. It would appear from the comprehensive rejection of credibility at paragraph 35 that evidence of detention by either party was wholly rejected, but as Mr Palmer, for the Secretary of State, realistically concedes, it is not clear from paragraph 34 whether the tribunal are rejecting entirely the accounts of detention and questioning by the LTTE and by the army, or whether they are accepting it in part, and if so which part.

It appears to me -- and the Secretary of State’s concession to which I have referred supports this view -- that a tribunal assessing the risk on return will need to make findings as to the extent, if any, of the appellant’s credibility. Of course if they entirely reject he ever had dealings with the LTTE or had ever been under army suspicion, the other matters may not arise, but in my judgment it would be necessary for a tribunal assessing the risk to the appellant on return to have the opportunity to make clear findings, which are not at present available, as to what has happened in the past.

The second basis of challenge is based on the medical evidence of Dr Michael Seear. That submission, in my judgment, also has force. In paragraph 34 the tribunal considered that evidence and concluded that the appellant’s scars, while consistent with the type of injury meted out in Sri Lankan detention or ill-treatment cases, were equally consistent with all sorts of other incidents and accidents that commonly afflict a rural or agrarian population. The report of Dr Seear is detailed and comprehensive. It analyses in considerable detail the signs of injury which are demonstrated on examination and the causation of those injuries. It is not necessary to refer to it in detail. I have in mind in particular the descriptions of the injury to the lower limbs contained at paragraph 68 and 69 of the bundle.

I see force in Mr Palmer’s submission that there is no error of law by the tribunal in stating that the medical evidence did not provide “the necessary underpinning” of the appellant’s count. Credibility must be judged as a whole, and questions of assessing whether particular parts of the evidence are established on balance of probability can distract from that exercise. What however the appellant was entitled to have, in my judgment, was an explanation from the tribunal, if they were to find against him, of the basis upon which they rejected the detailed evidence of Dr Seear as to likely causation. It was not sufficient for them to state in a single sentence that the injuries were equally consistent with incidents in an agrarian community not involving violence. In my judgment, the remission should take place on the broader basis for which the appellant contends.

A tribunal faced with what may appear to them a somewhat bizarre description of events may find it difficult to give reasons why they are rejecting the evidence. What is defective about this determination, in my judgment, is the lack of clarity in the findings of fact and also the failure to deal, in a detail to which the appellant was entitled, with the only supporting evidence available to him, namely evidence of injuries sustained. I am not of course anticipating what the result may be on a remission or giving any indication as to what it should be. In my judgment the appellant is entitled to a rehearing, which includes an assessment of his credibility, and I would allow the appeal and remit on that basis.

LORD JUSTICE WALL: I agree.

LORD JUSTICE RICHARDS: I also agree.