SN (Sri Lanka), R (on the application of) v Secretary of State for the Home Department

The history of this appeal against a refusal of permission presents a sorry tale of delay since this appellant first claimed refuge in this country as long ago as 14 April 1999. This is no criticism of him, since he has now been here ten years and persists in trying to remain here, still less of his legal advisers, who have done everything they can to resurrect and maintain his claim that he is at risk on return to Sri Lanka by virtue not only of his participation during the war serving with the LTTE, but also by reason of the fact that that would be recorded or that there is a real risk that it would be recorded at the airport and he will then suffer infringement of his rights enshrined in Article 3.

He is, as I have indicated, a Sri Lankan national. He came secretly to this country in March 1999 and claimed asylum on 14 April 1999. The Secretary of State refused his claim in June 2001 and he appealed in the same month.

This appeal is against a refusal of permission judicially to review a decision of the Secretary of State of 23 February 2007 to treat further submissions that the appellant advanced in support of his claim for refugee status. The claim was refused in writing by Davis J and then on its renewal by way of oral submission by HHJ Mackie QC, sitting as a deputy High Court judge on 22 January 2008.

The claim is governed by paragraph 353 of the Immigration Rules. In short, the appellant must show firstly that there is significant new evidence over and above the situation of when his claim was refused and his appeal failed; and secondly, that that significantly different material, taken with the previously considered material, gives a realistic prospect of success or, to put it another way, a more than fanciful prospect (see the judgement of Laws LJ in AK (Sri Lanka) v SSHD [2009] EWCA Civ 447 at paragraph 34). Inevitably, therefore, both the Secretary of State and any court considering an application for judicial review will have to consider those two separate features, namely whether the evidence is significantly different and then to consider whether there is any realistic prospect of success. That drives both the Secretary of State and any court considering the matter to have regard to the original decision of a fact-finding body in relation to the claim on appeal to the Secretary of State in order to use that as a measure to see whether, on the one hand, the application is merely an attempt to attack the challenge to the original findings of fact or whether it is, in reality, a fresh claim based upon significantly fresh evidence.

This requires some consideration of the original decision of the fact-finder, namely the adjudicator in his decision of 11 August 2008. In that decision the adjudicator referred in some detail to the appellant’s own account of his involvement in the LTTE. He said he had worked in an office and been paid wages for that work. The office he described as a “Pass Office” in which he had worked from 1995 to 1997 when he joined the intelligence division, keeping track of people travelling into army controlled areas.

He then described how matters became worse due to the penetration of the army. He was told to get arms training; he refused to do so and he resigned. He told the adjudicator he was given one month to take care of his family to see that they were safe; he said he could not because the relatives lived in what he described as army controlled areas. He then said this: that the army knew all about him and had a photograph of him which they had shown to people travelling from the area in which he had been. He described also the fact that the army had arrested his brother and kept him as a hostage and that his mother had been asked to reveal him to the authorities in October 1997. He said his brother had been tortured by the army and was an invalid. It was he said his claim that he feared persecution both from the Sri Lankan authorities and from the LTTE because of his participation in that body.

The adjudicator listened to those facts, heard submissions on behalf of the appellant and on behalf of the Secretary of State, and concluded that the appellant:

“…was involved with the LTTE to some extent, but not that his job was as important as he made out before me and to the Secretary of State. I do not accept that he is of any continuing interest, if he had ever been, to either the LTTE or the Sri Lankan authorities.”

In particular, the adjudicator was sceptical that he was a wanted man, bearing in mind that he successfully escaped from Colombo without being stopped at the airport (see paragraph 26 of his decisions). His claim for refugee status, and on the grounds of breach of human rights, was rejected.

There was then an appeal, dated 7 October 2003, which relied upon family links in this country within Article 8(1) of the European Convention on Human Rights. No appeal was mounted suggesting that the adjudicator’s findings of fact demonstrated an error of law: there was no challenge whatever to those findings of fact. On the contrary, there then followed a persistent attempt by this appellant to persuade the Secretary of State to reopen the case on the basis of fresh evidence. Submissions were made once permission to appeal had been refused, in November 2003 and January 2004, both of which were rejected; further submissions in December 2004, two in February 2005 and one on 20 December 2006. The Secretary of State responded to that submission on 23 February 2007. In that response the Secretary of State acknowledged the fears of those acting on behalf of the appellant, the source of which was the deteriorating situation in Sri Lanka, but the Secretary of State reiterated the adjudicator’s findings of fact as to the low level of participation in the LTTE and thus the inference that he would not be of any particular interest to any faction currently operating in Sri Lanka. Further representations were made on 13 February 2007 which did not reach the Secretary of State in time.

The appellant then launched the judicial review proceedings challenging the decision of the Secretary of State of 23 February 2007. But this case retained the characteristics which it had demonstrated throughout its history; it maundered on for another two years, such that, by the time there was an application for permission to appeal against the refusal to which I have already referred of both Davis J and HHJ Mackie for permission to launch judicial review proceedings, matters had changed yet again and Sedley LJ invited the Secretary of State to respond yet again, and he did so in a very full letter of 24 February 2009.

The reasons matters had changed did not relate to any evidence peculiar to this appellant but rather, as Ms Jegarajah has so eloquently demonstrated, to the changing situation in Sri Lanka. That changing situation has been reflected in the approach of the courts to risk upon return of those who failed in their claim for refugee status. The country guidance case which, despite the changing situation, is still that which is applied by fact-finders and by the court is LP (Sri Lanka) CG [2007] UKAIT 00076. This case looks in great detail at those factors which will give rise to risk on return and particularly emphasises the greater sophistication of records kept at airports such as will trigger the interests of the authorities in respect of those returning, particularly to Bandaranaike airport,and the risks that those who are detained who exhibit such features once they are discovered through those risks.

In particular, relevant to this case, is the risk identified in LP to those who have a record as a suspected or actual LTTE member or supporter. In LP the tribunal said:

“From our assessment of the background evidence, we find that it is of vital importance, in the assessment of each Sri Lankan Tamil case, to establish an applicant’s profile, and the credibility of his background, in some depth. For example if the appellant was not credible as to his background from the north or the east, which left a situation where he could be a Tamil from Colombo who had

little or no involvement with the LTTE, there could be, based on the reality of the assessment of his predicament, little risk (or almost certainly not risk at the level of engaging either Convention).”

Later in its decision the tribunal emphasised that when considering the risk factors it had set out:

“…the likelihood of an appellant being either apprehended at the airport or subsequently within Colombo. We have referred earlier to the Wanted and Watched lists held at the airport and concluded that those who are actively wanted by the police or who are on a watch list for a significant offence may be at risk of being detained at the airport. Otherwise the strong preponderance of the evidence is that the majority of returning failed asylum seekers are processed relatively quickly and with no

difficulty beyond some possible harassment.” (para 239)

The Secretary of State had all the factors giving rise to risk in LP in mind but, importantly, focussed upon the previous record and identified those findings of fact made by Mr Hamilton as long ago as 2003 in concluding that this appellant in previous involvement with the LTTE was low-level and that he was not at risk of adverse attention from the Sri Lankan authorities, a conclusion he repeated in his long letter at paragraph 39, pointing out that he was considered not to have a previous record as a suspected or actual LTTE member or supporter.

It is trite to observe that those conclusions, in relation to what is asserted to be a fresh claim, are matters of fact and judgment for the Secretary of State. There are no grounds for bringing proceedings by way of judicial review unless they disclose a public law error on conventional grounds. Nothing deterred, Ms Jegarajah returns to the original findings of fact of Mr Hamilton and condemns them by way of submission as being too thin and tortured to justify the conclusion of the Secretary of State. She says that matters have changed, that now far greater scrutiny is given to previous involvement and far better attention given to the prospect of a record being kept. When the claimant said that the army had a photograph of him which shows people travelling from Vavuniya, that resonates with the prospect of there being a record on his return at Bandaranaike airport. That assertion should not have been so readily rejected, if indeed it was rejected at all. The conclusion that he was of no continuing interest was without foundation and would never have been reached now that it is recognised that greater scrutiny of those facts is necessary than it was during the period in 2003 when that determination was promulgated.

I reject those submissions. The findings of fact clearly did not accept what the appellant was saying about the level of his involvement with the LTTE and, more importantly, whether he had been or continued to be of interest to the authorities. It is plain, reading the determination as it must be read, that that essential contention was being rejected; it was a finding of fact that was never appealed against and cannot be overturned now. Ms Jegarajah seeks to overturn it on the basis that the findings are so unclear that they do not provide any measure or standing against which the new material can be assessed. She seeks to base that submission upon the remarks of Sir George Newman in R (Sivarajah Sivanesan) v SSHD [2008] EWHC 1146 (Admin). This is not, in my view, an appeal in which to descend into a detailed examination both of what Sir George Newman said and what he meant or its implications. I confine myself to observing that his observation should not be used as a basis for seeking to undermine findings of fact made by the fact-finding tribunal years ago which were never appealed against. There must be, and there must be maintained, a clear distinction between a case in which it is said fresh significant evidence has emerged and a case in which an opportunity is taken by way of that assertion to seek to undermine original findings of fact.

In this case Ms Jegarajah, whilst she has undoubtedly succeeded in demonstrating that there are now different facts as identified in cases such as LP, they are of no assistance to this appellant who cannot, in my view, successfully get round the original findings of fact that he was of no interest and no continuing interest to the authorities. That, in my view, is fatal to this appeal and I would dismiss it.

I agree and would like to emphasise what my Lord has said about the importance of not using fresh claims to undermine the appeal process.

I also agree with both the previous judgments.