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

This is a renewed application for permission to appeal following refusal on paper by the single Lord Justice. The applicant, who is now aged almost 26 and is a national of Sri Lanka of Tamil ethnicity, entered the United Kingdom on 10 March 2007 on a false passport posing as the wife of the agent who was accompanying her. The applicant claimed asylum on 16 March but her claim was rejected.

The applicant said that she had been raped on three separate occasions in November and December 2006 by members of the Sri Lankan army, but the Home Office official who considered her case did not believe her story and concluded that, even it was true, the soldiers had not been acting on behalf of the Sri Lankan army and that she was not at risk of persecution on any of the grounds covered by the Refugee Convention. It was not accepted that she had shown that the authorities in Sri Lanka were unwilling or unable to provide her with protection or that she faced any significant risk of ill-treatment on return.

The applicant appealed to the Asylum and Immigration Tribunal against the refusal of the Secretary of State to grant her leave to remain in this country, and as a result the matter came before Immigration Judge Courtney. She found, in summary, that the applicant’s claim was credible, that she had a well-founded fear of persecution by the Sri Lankan authorities who would impute to her political sympathy for the LTTE by reason of her own ethnicity and her father’s apparent support for their cause, that internal relocation was not really possible in her case, that it would be unduly harsh to return her to Sri Lanka and that to do so would violate her rights under the European Convention on Human Rights. However, the immigration judge also found that there was no serious possibility that the applicant’s father had been identified as being a supporter of the LTTE or that the applicant herself was on a wanted list or that the authorities had been actively concerned about her. Moreover, Immigration Judge Courtney accepted that the soldiers who raped the applicant were abusing their position and that the rapes did not amount to persecution within the meaning of the Refugee Convention.

In the light of those various findings the Secretary of State applied for the case to be reconsidered on the grounds that the findings of fact supporting the immigration judge’s decision were inconsistent or not properly reasoned. On the reconsideration Senior Immigration Judge Gill held that the immigration judge had erred in law because, in the light of the findings in paragraphs 28 and 32 of her decision, there was no basis for concluding that the applicant would be at risk of persecution at the hands of the Sri Lankan authorities on her return to Colombo other than the fact that she is a young woman of Tamil ethnicity. If those were the only factors that might make her of interest to the authorities, it would follow that all young Tamil women would be at risk, a conclusion which, in her view, the evidence did not support.

The Senior Immigration Judge then moved to consider for herself the risk to this applicant on return. She held that since the applicant’s home was in an area controlled by the LTTE, there were no substantial grounds for thinking that the soldiers who had raped her would get to know of her return, but that if they did, she could obtain protection from the authorities. As far as the risk on entering the country at Colombo was concerned, although the applicant left the country illegally and would be returning without the normal documents, the authorities had no reason to suspect her of complicity with the LTTE and there was therefore no reason to think that she would be at risk of ill-treatment at their hands. She therefore dismissed the appeal on all grounds.

The applicant now seeks permission to appeal on the following grounds: first, that Senior Immigration Judge Gill was wrong to hold that Immigration Judge Courtney had made an error of law; second, that Immigration Judge Courtney had failed to make full findings of fact in relation to the incidents of rape and to the consequences of those rapes on the applicant and as a result failed to apply the law correctly, which infected the decision made on the reconsideration; third, that as a result the decision of Senior Immigration Judge Gill herself was flawed in that she had failed to apply correctly the law in Horvath v SSHD [2000] UKHL 37; [2001] A.C. 958 relating to the provision by state authorities of protection against persecution or ill-treatment by others; and fourth, that she had conducted the hearing in an unduly robust manner which was unfair to the applicant.

In my view there is no merit in the first or last of these grounds. Immigration Judge Courtney accepted the applicant’s account of the events leading to her departure from Sri Lanka, but once it was accepted, as it was, that the soldiers were abusing their position and therefore acting merely as criminals, the only question that arose in relation to that aspect of the case was whether there was a significant risk of repetition, and, if so, whether the Sri Lankan authorities were willing and able to provide proper protection for her.

Immigration Judge Courtney appears to have accepted that the applicant might be exposed to a significant risk of harm as a result of repetition of such ill treatment if she returned to her home area, but that does not seem to have formed part of her reasons for allowing the appeal. If one looks at the summary of her reasons in paragraph 14, or the more extended explanation of her reasons set out in paragraphs 29 to 37, the basis for her decision appears to have been that there was a real risk that the applicant would be persecuted by the Sri Lankan authorities on suspicion of having LTTE sympathies. However, in the absence of some explanation, the nature of which at the moment I find it difficult to envisage, that ground of decision could not easily be reconciled with her other findings. Either there was an inconsistency in her findings or a lack of proper reasoning. In my view, in either case, Senior Immigration Judge Gill was right to hold that she had committed an error of law. I can see no grounds for impugning the way in which the proceedings were conducted. I therefore refuse permission to appeal on the first and fourth grounds.

The second ground of appeal is based on a submission that Immigration Judge Courtney failed properly to appreciate the consequences of the rapes on the applicant’s standing in the Tamil community. It is said that although she can survive adequately in her present surroundings, living as she is with relatives in this country, she would be unable to cope adequately among the Tamil population of Colombo on her return because of the stigma of being a rape victim, which at an earlier stage had led her to attempt suicide.

If this argument was advanced before Immigration Judge Courtney, it does not appear to have been presented with a great deal of clarity or persistence, since it does not appear anywhere in her reasons. Moreover, it does not appear to have been advanced before Senior Immigration Judge Gill with much greater enthusiasm. In effect, the argument is that the decision makers at each stage failed to understand the evidence or to make proper findings of fact.

In that context Mr Morgan has drawn my attention to paragraphs 14 and 15 of Senior Immigration Judge Gill’s reasons, and also to paragraph 19. Her conclusions were that there was little risk of the applicant’s being identified by the soldiers who had raped her on the previous occasions, but that if she had difficulties from them again she would be able to obtain sufficient protection from the Sri Lankan authorities, albeit that she would have to travel to the government-controlled area to lodge complaints against them. Mr Morgan submits that that somewhat brief treatment of the issue does not do proper justice to the law as set out in the decision in Horvath, because it pays scant regard to the position of the applicant and the ability of the authorities to provide her with substantive protection against further assaults of that kind. Moreover, he submits that the findings made by the Senior Immigration Judge in paragraphs 15 and 19 are not properly reasoned and are not based on evidence before the tribunal. In particular, he suggests that the conclusion in paragraph 19 of the decision that the government can and will provide sufficient protection is based almost entirely on the decision in LP (Sri Lanka) v SSHD CG [2007] UKAIT 00076, which no longer properly reflect the state of affairs on the ground in Sri Lanka.

In the light of the findings made by Immigration Judge Courtney, which in many respects were not challenged on the reconsideration, I am satisfied that there is sufficient force in the last submission to make it appropriate to give permission to appeal in this case, limited to those grounds. It is fair to say that the identification of the grounds to which I have referred has come very late in the day, partly as a result of submissions made by Mr Morgan on this application. I think it appropriate, therefore, to hear counsel further before considering to what extent it may be appropriate for the notice of appeal to be amended to identify that ground accurately. Permission to appeal will be limited accordingly.