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

On behalf of KJ, Miss Jegarajah reiterated the submission made to the Tribunal in November 2007 that they were bound, by virtue of the principle enunciated in DK (Serbia), to accept the positive findings of the adjudicator as to the credibility of KJ’s account. Since the Tribunal had not done so, and had rejected his account in important respects, they had erred in law and their determination, in so far as it was based on findings at variance with those of the adjudicator that were unfavourable to him, fell to be set aside.

In DK (Serbia) the Court of Appeal held that on a reconsideration pursuant to section 103A of the Nationality, Immigration and Asylum Act 2002 factual findings made by the original tribunal which were unaffected by the errors of law identified on reconsideration should stand when the appeal is reconsidered at the second stage. Latham LJ gave the only substantive judgment, with which the other members of the Court of Appeal agreed. He said:

20.

… The jurisdiction is one which is being exercised by the same tribunal, conceptually, both at the first hearing of the appeal, and then at any reconsideration. That seems to me to be the key to the way in which reconsiderations should be managed in procedural terms.

21.

In the first instance, in relation to the identification of any error or errors of law, that should normally be restricted to those grounds upon which the immigration judge ordered reconsideration, and any point which properly falls within the category of obvious or manifest point of Convention jurisprudence, as described in Robinson [1998] QB 929. Therefore parties should expect a direction either from the immigration judge ordering reconsideration or the Tribunal on reconsideration restricting argument to the points of law identified by the immigration judge when ordering the reconsideration. Nothing in either the 2004 Act or the rules, however, expressly precludes an applicant from raising points of law in respect of which he was not successful at the application stage itself. And there is no appellate machinery which would enable an applicant who is successful in obtaining an order for reconsideration to challenge the grounds upon which the immigration judge ordered such reconsideration. It must however be very much the exception, rather than the rule, that a Tribunal will permit other grounds to be argued. But clearly the Tribunal needs to be alert to the possibility of an error of law other than that identified by the immigration judge, otherwise its own decision may be unlawful.

22.

As far as what has been called the second stage of a reconsideration is concerned, the fact that it is, as I have said, conceptually a reconsideration by the same body which made the original decision, carries with it a number of consequences. The most important is that any body asked to reconsider a decision on the grounds of an identified error of law will approach its reconsideration on the basis that any factual findings and conclusions or judgments arising from those findings which are unaffected by the error of law need not be revisited. It is not a rehearing: Parliament chose not to use that concept, presumably for good reasons. And the fact that the reconsideration may be carried out by a differently constituted tribunal or a different Immigration Judge does not affect the general principle of the 2004 Act, which is that the process of reconsideration is carried out by the same body as made the original decision. The right approach, in my view, to the directions which should be considered by the immigration judge ordering reconsideration or the Tribunal carrying out the reconsideration is to assume, notionally, that the reconsideration will be, or is being, carried out by the original decision maker.

23.

It follows that if there is to be any challenge to the factual findings, or the judgments or conclusions reached on the facts which are unaffected by the errors of law that have been identified, that will only be other than in the most exceptional cases on the basis of new evidence or new material as to which the usual principles as to the reception of such evidence will apply, as envisaged in rule 32(2) of the Rules. It is to be noted that this rule imposes the obligation on the parties to identify the new material well before the reconsideration hearing. This requirement is now underlined in the new Practice Direction 14A. This sets out in some detail what is required in such a notice.

…

25.

Accordingly, as far as the scope of reconsideration is concerned, the Tribunal is entitled to approach it, and to give directions accordingly, on the basis that the reconsideration will first determine whether or not there are any identifiable errors of law and will then consider the effect of any such error or errors on the original decision. That assessment should prima facie take place on the basis of the findings of fact and the conclusions of the original Tribunal, save and in so far as they have been infected by the identified error or errors of law. If they have not been infected by any error or errors of law, the Tribunal should only re-visit them if there is new evidence or material which should be received in the interest of justice and which could affect those findings and conclusions or if there are other exceptional circumstances which justify reopening them.

The italics are mine.

Latham LJ referred to the earlier judgment of Sedley LJ in Mukarkar v Secretary of State for the Home Department [2006] EWCA Civ 1045:

43.

I would add this on the procedural aspect of the case. Had the Tribunal been right in its critique of the determination in relation to Rule 31(7), it should have included in its order a direction that the immigration judge who was to continue the reconsideration should do so on the basis that the facts found by Mr Ince were to stand save in so far as the issue to be reconsidered required their significance to be re-evaluated.

44.

The reason why it is important to be rigorous about this is that reopening a concluded decision by definition deprives a party of a favourable judgment and renders uncertain something that was certain. If a discrete element of the first determination is faulty, it is that alone which needs to be reconsidered. It seems to me wrong in principle for an entire edifice of reasoning to be dismantled if the defect in it can be remedied by a limited intervention, and corresponding right in principle for the AIT to be cautious and explicit about what it remits for redetermination.”

The principle explained in DK (Serbia) was applied by the Court of Appeal in HF (Algeria) [2007] EWCA Civ 445. Again, there was only one substantive judgment, given by Carnwath LJ, with which the other members of the Court agreed. He approved and adopted the above statement of Sedley LJ in Mukarkar, stating:

18.

As Latham LJ noted, those comments had not been the subject of argument in that case, nor were they in terms adopted by the other members of the court (of which I was one). I am happy now to adopt them. They remind us that there are two distinct aspects to the new approach, equally important. One is efficiency, the other fairness. On the one hand, the approach gives effect to the policy objective "to streamline the overall appellate process…" (DK para 4). On the other, the appellant should not be subjected without good reason to the stress and uncertainty of a new hearing on an issue on which he has succeeded. …

It is significant that when he cited paragraph 22 of the judgment of Latham LJ in DK Serbia Carnwath LJ added emphasis to the sentence that I have italicised in the above extract. With reference to the appeal before the Court, Carnwath LJ said:

23.

On the second ground of appeal, it seems to me that the answer is equally clear the other way. In the light of DK it was in my view wrong for the Jordan panel to order reconsideration of the whole case, including credibility. The appellant's account of his treatment by the GIA, and of his role as an informer for the police had been accepted by Mrs Kempton. That finding had not been challenged on the request for reconsideration, nor had any new material or other exceptional circumstances been identified to justify reopening it. Had the guidance in DK been available to the Jordan panel, I would have expected them to have taken steps to limit the issues on the rehearing to exclude those not materially affected by the error of law. Although they cannot of course be blamed for the failure, it was nonetheless (as in PE) an error of law.

There are cases in which the principle in DK (Serbia) is easy to apply. If, for example, the Immigration Judge has applied an incorrect legal test to an issue of internal flight or relocation, his findings on other aspects of the case will be unaffected. But in the present case, in my judgment, there are three reasons why the principle is inapplicable.

The first, and fundamental, reason is that it is not possible to identify “factual findings which are unaffected by the error of law” made by the adjudicator. The effect of the decision of the Tribunal of 30 January 2006 was that the hearing before the adjudicator should not have taken place. All his findings and all his conclusions were affected by his error. Hence the direction, in my judgment correctly given, that all core issues, including credibility, should be reconsidered afresh. The Tribunal addressed this issue in paragraph 5 of the determination under appeal, cited above. I agree with the Tribunal’s reasoning and their conclusion.

The second reason is that the adjudicator did not entirely accept KJ’s credibility. He held that KJ had embellished his claim by contending that the LTTE had suspected him of defecting. He thought that the claim that he had suffered a rupture of his stomach as a result of mistreatment by the army “less reliable” than his other claims. The effect of Miss Jegarajah’s submission is that KJ is entitled to choose which findings he adopts and which he rejects. But the effect of a tribunal decision must be objectively ascertainable. In addition, to hold that the favourable credibility findings made by the adjudicator were binding on a subsequent Immigration Judge would make the latter’s task impossible. In order to assess the credibility of the disputed claims of KJ, he would sensibly have to hear his evidence in the round. Yet he would be bound to accept some of that evidence, even if he found it to be incredible.

The third reason is that the point was not taken before the Tribunal made its decision of 10 July 2006. As a result, the reconsideration direction was in general terms, and the reconsideration hearing was conducted on that basis. This objection is compounded by the fact that the contention that the Tribunal was bound by the favourable findings of the adjudicator was not mentioned in the agreed statement of reasons submitted to the Court of Appeal and the order for reconsideration made by the Court of Appeal was itself in general terms.

Accordingly, I would reject this ground of appeal.

Article 1F of the Refugee Convention is as follows:

“The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

(a)

he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

(b)

he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

(c)

he has been guilty of acts contrary to the purposes and principles of the United Nations.”

The first question that arises in the present case is: what are “acts contrary to the purposes and principles of the United Nations”? It is clear that acts of terrorism – in particular the deliberate killing or injuring of civilians in pursuit of political objects – are such acts. The Tribunal in their decision under appeal stated that acts contrary to the purposes and principles of the United Nations are not to be equated with acts of terrorism. It is unnecessary for me to debate this issue, because Mr Johnson did not suggest that acts of a military nature committed by an independence movement (such as the LTTE) against the military forces of the government are themselves acts contrary to the purposes and principles of the United Nations. I do not think that they are. Moreover, the Tribunal in its determination under appeal seems to have accepted that an armed campaign against the government would not constitute acts contrary to the purposes and principles of the United Nations. For present purposes it is necessary to distinguish between terrorism and such acts.

I turn, therefore, to consider what must be shown in relation to the person in relation to whom a question of the application of the exclusion clause arises. Certain points are, I think, clear. First, the Convention may be excluded even if the evidence available does not establish positively that the person in question committed a crime against peace or one of the other crimes or acts identified in paragraphs (a), (b) or (c): it is sufficient if there are “serious reasons for considering” that he did so. Nonetheless, the crimes and acts referred to are all serious, and the seriousness of the reasons must correspond with the seriousness of the crimes and acts in question. Secondly, each of the paragraphs requires the personal guilt of the person in question: paragraphs (a) and (b) refer to his having committed a crime of the nature described, and paragraph (c) refers to his having committed acts contrary to the purposes and principles of the United Nations. It follows that mere membership of an organisation that, among other activities, commits such acts does not suffice to bring the exclusion into play. On the other hand, in my judgment a person who knowingly participates in the planning or financing of a specified crime or act or is otherwise a party to it, as a conspirator or an aider or abettor, is as much guilty of that crime or act as the person who carries out the final deed.

Lastly, so far as paragraph (c) is concerned, it is common ground that acts of terrorism, such as the deliberate killing of civilians, are contrary to the purposes and principles of the UN.

The application of Article 1F(c) will be straightforward in the case of an active member of organisation that promotes its objects only by acts of terrorism. There will almost certainly be serious reasons for considering that he has been guilty of acts contrary to the purposes and principles of the United Nations.

However, the LTTE, during the period when KJ was a member, was not such an organisation. It pursued its political ends in part by acts of terrorism and in part by military action directed against the armed forces of the government of Sri Lanka. The application of Article 1F(c) is less straightforward in such a case. A person may join such an organisation, because he agrees with its political objectives, and be willing to participate in its military actions, but may not agree with and may not be willing to participate in its terrorist activities. Of course, the higher up in the organisation a person is the more likely will be the inference that he agrees with and promotes all of its activities, including its terrorism. But it seems to me that a foot soldier in such an organisation, who has not participated in acts of terrorism, and in particular has not participated in the murder or attempted murder of civilians, has not been guilty of acts contrary to the purposes and principles of the United Nations.

It remains to apply these principles to the case of KJ. In my judgment, the Tribunal failed to focus on the crucial question: were there serious reasons for considering that he had personally been guilty of acts contrary to the purposes and principles of the United Nations? It found that KJ must have known of its terrorist activities, and so he must. But in the crucial sentence of paragraph 67 of the determination they elided knowledge and complicity. That sentence is:

“Having regard to these facts, and noting what the Tribunal said in KK, that it was not necessary that acts contrary to the principles and purpose of the United Nations should be terrorist in nature; we conclude that the LTTE was engaged in acts contrary to the purpose and principles of the United Nations, and that the appellant’s membership and role was complicit in those acts such that he is excluded from the Geneva Convention under Article 1F(c).”

As appears from the full citation above, the “facts” referred to were the terrorist acts of the LTTE. The Tribunal failed to define what acts that were not terrorist in nature were acts contrary to the purposes and principles of the United Nations, and did not identify any facts that constituted serious reasons for considering that KJ had been guilty of them. The word “complicit” is unenlightening in this context. In my judgment, the facts found by the Tribunal showed no more than that he had participated in military actions against the government, and did not constitute the requisite serious reasons for considering that he had been guilty of acts contrary to the purposes and principles of the United Nations. I would therefore allow his appeal on this issue.

The Tribunal’s rejection of KJ’s account of his detention by the army is lightly reasoned. They gave essentially two reasons for rejecting his account. The first was that if, as he stated, he had admitted being a member of the LTTE’s planning unit, it was not credible that the army would have agreed to release him on payment of a bribe. It is submitted that the Tribunal assumed, rather than found, that his release was approved by those in authority, whereas his description of it was consistent with his release having been unauthorised and illicit. This is, in my judgment, a valid criticism of the determination, as there is also of the reason given by the Tribunal for rejecting the relevance of KJ’s surgical scar.

The other reason given by the Tribunal for rejecting KJ’s account is more difficult to criticise. They rejected KJ’s claim that a bribe had been paid for his release by his uncle. They said:

“… we do not believe the circumstances in which the appellant claimed a bribe was paid on his behalf. Under cross-examination the appellant was asked how his uncle had been able to find him in the medical unit where he claimed he had been transferred. He said an offender told him and then changed his account and said people living in new where he was detained. He said his uncle would have been able to find out from the agent. Given that the appellant claimed to have been rounded up by the army in Vavuniya, we are unable to see how people living in Colombo could possibly have known any of the details of the appellant's claimed detention. We found the appellant's evidence as to how his uncle managed to find out where he was vague and totally unpersuasive. We do not believe the circumstances of this detention: we do not believe it ever happened.”

This reasoning is unimpeachable. Since the alleged payment of a bribe was the precursor to and the prerequisite of KJ’s release, it follows that the Tribunal’s rejection of KJ’s detention by the army is similarly supportable. It follows that the Tribunal’s assessment of risk from government forces on return is not defective. I would reject this part of KJ’s appeal.

I emphasise that the determination under appeal preceded the country guidance determination of the Tribunal AN & SS (Tamils –– risk?) Sri Lanka CG [2008] UKAIT 00063. Hence the absence of any reference to it in the determination. I record that Mr Johnson abandoned the contention that if KJ would otherwise be at risk from the LTTE, there would be adequate government protection against that risk.

The contention of the Secretary of State is straightforward. The Tribunal found that KJ was a deserter, i.e., someone who had left the LTTE. As such, he was not in a category held to be at risk in the then current country guidance determination of PS (Sri Lanka) [2004] UKIAT 00297 relating to risk to returned Tamils from the LTTE. In that case, the Tribunal stated, at [59]:

… What the careful analysis made by Miss Richards clearly demonstrates is that those who are reasonably likely to be targeted [by the LTTE] have a high profile which makes them particularly likely to be the object of LTTE reprisals. The analysis demonstrates that prominent present or past supporters of Tamil political parties which have aligned themselves with the government against the LTTE, LTTE defectors (particularly those who have then aligned themselves with the Sri Lankan army military intelligence units) and, more recently, those closely associated with the internal LTTE schism as supporters of Colonel Karuna, are at potential risk of being targeted.

This passage was cited by the Tribunal in paragraph 89 of its determination under appeal.

“Defectors”, in this context, means former members of the LTTE who have, to use the words of the Tribunal in PS,“aligned themselves” with the opposition, rather than mere deserters. In paragraph 73 of the determination under appeal the Tribunal “noted” section 10 of the Country of Origin Guidance Report current at the date of the determination under appeal. Paragraph 10.29, cited by the Tribunal in paragraph 74 of their determination refers to the LTTE’s political opponents being classified by them as “traitors”. The report of Human Rights Watch, cited in paragraph 10.32 of the COIR, refers to the LTTE being implicated in more than 200 targeted killings since the start of the ceasefire in 2002 “mostly of Tamils viewed as being political opponents”.

As I have said, mere deserters, i.e., those who have left the LTTE but not joined the government or other opposition, are not within the categories held in PS to be at risk from the LTTE. In paragraph 80 of their determination under appeal, the Tribunal stated that it was possible that the LTTE thought that KJ was a deserter, and in paragraph 93 they stated that there was a real risk that KJ fell into the category of a deserter. As such, he would not be at risk as a defector. Similarly, in paragraph 87 they said that “there is a real risk that the LTTE would realise that he was someone who had fled the organisation all those years ago”. Thus the Secretary of State contends that the Tribunal erred in law by misapplying the country guidance in that case: they confused deserters with defectors.

Miss Jegarajah submitted that the finding of the Tribunal was supportable. The evidence of Dr Smith, to which the Tribunal referred, was that KJ would be suspected of being a defector or a traitor, and it was this to which the Tribunal referred in paragraph 93 of its determination.

My difficulty with this submission is that Dr Smith based his opinion on his acceptance of KJ’s account of his having been suspected by the LTTE as a defector and detained by them. He said, in paragraph 60 of his report of 26 June 2006:

“It is highly likely that the Appellant is registered on [the LTTE’s] electronic database as a defector or as a traitor because he escaped from detention. As such, his human rights and civil liberties would, at the very least, be vulnerable form the LTTE on return to Sri Lanka.”

But KJ’s account was rejected by the Tribunal. It follows, in my judgment, that the Tribunal had no basis for treating KJ as a suspected defector or traitor rather than as a deserter.

Indeed, as Mr Johnson pointed out, KJ’s profile is not dissimilar from that of the appellant in LP (Sri Lanka) [2007] UKIAT 00076, of whom the Tribunal in that determination stated:

“228.

…. We find however, given his profile, as regards the LTTE, then if he were able to locate himself in Colombo there is nothing in that profile that would suggest a real risk to him of serious harm at the hands of the LTTE.”

The Tribunal in the present case in paragraph 93 of their determination purported to take into account LP, but reached a different conclusion without explaining any distinction.

It follows that I accept Mr Johnson’s submission that the Tribunal conflated the situation of a suspected deserter on return to Sri Lanka and that of a suspected or actual defector. I would, therefore, allow the Secretary of State’s appeal and remit the determination in relation to risk from the LTTE for consideration by a freshly constituted tribunal.