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

The appellant, an adult male Tamil national of Sri Lanka, appeals against a determination promulgated on 12 January 2010 by Immigration Judge Walker in the Asylum and Immigration Tribunal dismissing his asylum appeal. He is 34 years old. He came to the UK on a student visa on 23 January 2005. His visa remained valid until 30 September 2008. An extension was refused on 11 December 2008. He claimed asylum on 5 January 2009. This was refused in a letter dated 23 February 2009. His appeal against that refusal was dismissed by Immigration Judge Morris on 13 May 2009 but reconsideration was ordered by Senior Immigration Judge Southern and the determination was set aside. Immigration Judge Walker was therefore hearing the second stage of the reconsideration of the appeal, which he dismissed. Permission to appeal was granted by Lord Justice Aikens on the basis that it was arguable that Immigration Judge Walker had not properly considered and applied the latest country guidance decision.

The appellant’s claim to be at risk if he were returned to Sri Lanka is based on the history which he put forward, some of which was accepted by the Secretary of State from the start and some (though not all) of which was proved at the hearing. His story may be summarised as follows.

Between 1995 and 1997 he worked in the medical section of LTTE, during that period suffering injuries in a shell attack. At least one of his brothers still worked for LTTE. Because of his former involvement with LTTE he was detained by the authorities from November 2001 to March 2002. During this period he was tortured, and he was required to sign a confession before being released. In 2003 and 2004 he worked for a company where he had to trace and copy government maps. He said that he gave such maps to a colleague. His mother told him that the colleague had given them to LTTE and that they had been found there by the authorities. He had been told that, since October 2007, whenever incidents occurred in Sri Lanka, the authorities would visit his parent’s home asking where he was. He married his wife in India in 2008. She returned to Sri Lanka and changed her identity card into his name, since when she had disappeared.

As to these factual matters, going straight to the position before, and the findings made by, Immigration Judge Walker, it was accepted that he had worked for LTTE in the 1990s, had been arrested and detained and had signed a confession before his release. It was held that some of his scars had been caused by torture applied during his period of detention. It was not accepted that the authorities were interested in him on the basis of maps having been supplied to LTTE or that the authorities visited his parent’s house asking about him or that his wife had been arrested or detained.

The asylum claim was rejected essentially on the basis that he had been released in 2002 without charge and without conditions, had subsequently lived and worked in Sri Lanka freely for the best part of three years without problems, had applied for and obtained a Sri Lankan passport in his own name without difficulty, and had been able to leave Sri Lanka using that passport. The immigration judge therefore rejected the appellant’s case that he was actively being sought by the authorities in Sri Lanka. He also noted that, although on the appellant’s case he thought the authorities were after him in 2007, he did not apply for asylum until January 2009 after the failure of his application to extend his student visa. The judge made adverse comments on the appellant’s history as a student, and he took this and his late asylum application as indications of the absence of any real fear of persecution on return.

Immigration Judge Walker summarised the history including the reasons given for the order for reconsideration of the previous determination, which form part of the decision on reconsideration. All previous findings of fact had been set aside, so he heard oral evidence from the applicant, starting again on the question of the factual findings. Subject to the question whether he had adequate regard to the relevant country guidance cases, there is no suggestion of a misdirection in his reasoning.

Undoubtedly the case has features which need to be balanced and assessed. On the one hand the appellant was active in LTTE in 1995 to 1997, and the first immigration judge was said to have been wrong in treating his case as being that he had been a low level worker at that stage. He was detained for some three to four months in 2001 to 2002, and, as Immigration Judge Walker found, was tortured during that period. He signed a confession before his release. It is not known to what he confessed but it is fair to assume that it was to his involvement in LTTE, at least in general terms and possibly in more specific terms, perhaps as to his level of involvement and his activities as such. His release came at a time when there was a ceasefire in the ongoing struggle between LTTE and the Sri Lankan government. That ceasefire came to a formal end some time after the appellant came to the United Kingdom, but it had been breaking down for some time before that.

On the other hand, after his release he was able to live and work freely until he left to come to the United Kingdom to study in January 2005. He obtained a passport in January 2003 and had not suffered the loss of his identity card, nor did he lose that at any later stage. He was able to travel freely on his passport.

Having set out the appellant’s case and the respondent’s position in relation to it, Immigration Judge Walker proceeded at paragraph 32 to make findings of fact having, he said, considered the evidence in its totality and in the round, taking into account all relevant circumstances.

In his paragraph 32, which has nineteen sub-paragraphs, he made findings of fact in which he accepted some of the disputed aspects of the appellant’s story but rejected some others, in each case on points which were material to the case. Thus he did accept that the appellant had been tortured during his detention. However he rejected parts of the appellant’s story which suggested that the authorities had been showing active interest in him in recent years, asking about him on visits to his parent’s home, and also the story of the disappearance of his wife. He also rejected any suggestion that the appellant was at risk because of membership of LTTE on the part of his brother. At sub-paragraph (5) he said this:

At sub-paragraph (6) he referred to the cease-fire which first came into effect in December 2001 and was the subject of a formal agreement with LTTE in February 2002. He said that the cease-fire gradually fell apart. It became increasingly strained during the period after the elections in April 2004 and violations of the cease-fire agreement escalated. The war did not resume on a full scale until mid-2006. Then the judge went on in his sub-paragraph (7) as follows:

At sub-paragraph (16) the judge referred to the latest Country Guidance case which is TK (Tamils - LP updated) Sri Lanka CG [2009] UKAIT 00049. He set out first the case summary and then proceeded to summarise what he said was the principal focus appearing from that summary.

The case summary, so far as presently material, says this:

In the words of the determination immediately after the quotation of the case note Immigration Judge Walker said this:

As the judge said, there was no suggestion and no evidence that the appellant had been involved in that type of activity. He went on to say that the appellant could therefore not be considered as being within the principal focus of the authorities.

He then referred to another proposition within the case note which is that the Sri Lankan authorities keep increasingly sophisticated records of persons with some history of arrest and detention, and that their greater accuracy is likely to reduce substantially the risk that a person of no real interest to the authorities would be arrested or detained. As to that, at sub-paragraph (17) the immigration judge said that it was highly likely that the appellant’s detention in 2001 and 2002 may be recorded but that there would be nothing recorded against him since that time. He went on to say this:

Then he went on to deal with what are called the risk factors which had been set out in the previous country guidance case LP (Sri Lanka) CG [2007] UKAIT 00076. The relevance of these as factors was reaffirmed in TK.

There are twelve such factors. The immigration judge went through each of them and stated whether it applied or not. Several of them do not apply. Some that do apply were explained by the judge as not being of particular significance. Two in particular require mention. The second of the risk factors was a previous record as a suspected or actual LTTE member or supporter. As to that the immigration judge said this:

The fifth factor is having signed a confession or similar document, as to which the immigration judge said “this does apply.”

Having set those matters out he proceeded at sub-paragraph (19) to set out his conclusion as follows:

On the basis of that finding the immigration judge rejected the asylum claim, the claim to humanitarian protection, and also the human rights claim which was based only on article 3. It is clear that all three claims stand or fall together.

The point taken on the appeal is that the immigration judge failed to have proper regard to the country guidance cases, as a result he failed to take account of material relevant facts, and he came to an untenable conclusion as to the risk which the appellant faces on return. Alternatively, at the very least, his conclusion is one which is not sufficiently explained and is not readily compatible with the guidance in TK, so that, if the appeal ought not simply to be allowed, at any rate it should be allowed to the extent of a remission for further reconsideration.

On behalf of the appellant Mr Mackenzie submitted that the latest country guidance shows that despite, or perhaps because of, the defeat of LTTE in 2009, the Sri Lankan security forces are on high alert to prevent a resurgence of LTTE, and that those with a known history of LTTE involvement are therefore likely to be at risk on return. The appellant does have such a history which he submitted would be known to the authorities and so, he argued, he would be at risk on return.

The latest country guidance case is TK which I have already mentioned, promulgated in December 2009 after a hearing in late October 2009. It reviewed, in the light of evidence as to the latest position, the previous country guidance cases, namely LP, which I have already mentioned, and AN and SS [2008] UKAIT 00062, as well as the decision of the European Court of Human Rights in NA v UK in 2008, (2009) 48 EHHR 15. It is correct to look now to TK, with the benefit of the previous decisions.

Mr Mackenzie drew on several passages from TK, starting at paragraph 71. That is the first of six paragraphs under the heading “The Sri Lankan Government and the LTTE”. It explains, to start with, the policy of the Sri Lankan government of trying to drive home its military victory by weeding out LTTE remnants. In the last sentence of paragraph 71 this is said:

What was said earlier in that paragraph about the government’s policy builds on a passage earlier in the decision, in particular at paragraph 59. Then the decision speaks of the authorities having limited interest in Tamils from the north and east as such, although the government has detained many people in camps in the north east of the country on the basis that the people found there at the end of the fighting would include LTTE fighters, cadres and operatives. At paragraph 75 the first sentence is as follows:

Then the tribunal concludes that passage with paragraph 76 which is accurately summarised in the case note from which I have already quoted the most material passage.

Mr Staker for the Home Secretary submitted that the passage in paragraph 76 contrasts people who are members, or at any rate who were members at the time of the conclusion of the fighting, on the one hand, with people who have been involved in fund raising or procuring arms. He argued that this passage in the decision does not deal with people who may have been members in the past as opposed to current or very recent members.

Mr Mackenzie also relied on paragraph 134, in relation to which it is also necessary to consider paragraph 135. These are as follows:

The decision also includes the following passage which Counsel submitted is important, at paragraph 174:

Mr Mackenzie also relied on a statement at paragraph 142 which endorses statements in previous country guidance cases that having signed a confession was relevant to the assessment of risk and could contribute to the interest that would be shown in a returnee by the authorities.

Taking those various passages together, Mr Mackenzie’s submission was that although the Immigration Judge had cited part of the relevant passages in TK, and had gone through the list of risk factors mentioned in LP, he had not shown any indication that he had taken on board the most relevant passages in TK or that he had weighed up the risk factors that applied in the case of the appellant.

In particular, the Immigration Judge had not referred to the passage at paragraph 134 of TK which identifies in clear terms the risk faced by a person returning to Sri Lanka in relation to whom there is a record showing that he had previously been a member of LTTE, or that at paragraph 142 relating to the relevance of a signed confession. He only identified the case note of TK as relevant to the case, the material parts being based on paragraphs 76 and 82.

For the respondent, Mr Staker reminded us of the respect that appellate courts should show to the findings of an expert specialist tribunal: see Baroness Hale of Richmond in AH (Sudan) v SSHD [2007] UKHL 49, [2008] 1 AC 678 at paragraph 30. He contended that an Immigration Judge should not be expected to refer to every factor that could be said to be relevant and to explain his finding and reasoning in relation to every such point. The Immigration Judge had referred to TK and should be taken to have read and taken into account the passages relevant to this case, none of which, in any event, led to a conclusion that a one-time member of LTTE, with no history of activity as such since 2002, who had been issued with a Sri Lankan passport in 2003 and had been free to live, work and travel in Sri Lanka from 2002 to 2005, would be of any real interest to the authorities.

The fact that the Immigration Judge quoted incompletely at paragraph 32(16) from the case note of TK, which he had just set out, is unfortunate but not by itself a clear indication of any error. He omitted from his repetition the reference to persons considered to be “LTTE members, fighters or operatives”. We are left to inference or guesswork as to why he did so. Mr Staker submitted, plausibly, that he cannot be supposed to have overlooked the words which he had just set out a few lines earlier, and that the reason for the omission may have been a view that this phrase only applies to persons who are current (or were very recently, up to the end of the fighting) such members fighters or operatives. If so, that would not include the appellant, who had not been active since 2002, and had been abroad since early 2005. Equally, it may be that the Immigration Judge considered that only the second limb of the phrase (which he did quote) was of any relevance to persons who had been abroad for as long as the appellant.

I would not regard this passage in the determination, even if unfortunate in its absence of explanation, as indicating by itself a failure to have proper regard to the country guidance, and thereby a material error of law. Equally, I would not accept Mr Mackenzie’s contention that the Immigration Judge erred in law because he expressed a conclusion that the appellant was not at any real risk at the end of paragraph 32(16) before going on to address the LP risk factors. The determination must be read as a whole, and the context of the judge’s statement in paragraph 32(16) includes what follows in the determination as well as what came before it.

However, it does seem to me that Mr Mackenzie has more powerful grounds for criticising the Immigration Judge’s reasoning. Part of the text of paragraph 134 of TK is directly material to the appellant’s case. If the appellant were to return, the authorities at Colombo airport would find, or at the very least would be likely to find, a record showing that he had been a member of LTTE in the past, and that he had been detained as such. (As noted above, the Immigration Judge held at paragraph 32(17) that it was highly likely that there would be a record of his detention.) Paragraph 134 shows that this “would very likely lead to detention for a period”. Taking this together with paragraph 142 and the signed confession, there must be at least a possible risk that the record would indicate a higher, rather than a lower, level of membership, or significant activities on behalf of LTTE. As indicated in paragraph 135 the record kept may be more precise than was the case in former times as to the extent of the relevant person’s activities or involvement, but that is not necessarily of any comfort to the appellant, given the uncertainty as to what it was that the appellant confessed to, in a document written in Sinhala, which the appellant may well not have understood.

If the detention was for any significant period, TK shows at paragraph 134 that ill-treatment is a real risk. As Mr Staker submitted, a record may lead to a risk of detention, but it does not necessarily lead to a risk of a significant period of detention: see paragraph 174. The issue is not so much the existence of the record, but what it will disclose about the appellant.

I would accept Mr Staker’s point that the fact of former membership, and of detention and a signed confession, and the existence of a record, do not by themselves necessarily show that the appellant would face a real risk of ill-treatment on return. However, the problem that I have with the terms of the Immigration Judge’s determination is that, first, they do not show that he addressed his mind to the passages at paragraphs 134 and 142, which are of critical importance in relation to the facts established on the appellant’s part, and, secondly, if he did consider those passages, they do not explain why he considered that there was no sufficient possibility of a real risk for the appellant. We do not know whether he thought about paragraphs 134, 135, 142 and 174, or, if he did so, why he concluded that the content of the record would be such as to lead only to a period of detention, not to a significant period. So far as his reasoning goes, he does not appear to have recognised the clear inference from paragraph 134 of TK that there would be at least some period of detention of the appellant.

What does appear from the Immigration Judge’s determination is that he was strongly influenced by the appellant’s having been able to live and work in Colombo after his release from detention in March 2002 until January 2005, and in particular that he was able to obtain a Sri Lankan passport in 2003 and use it to come to the UK in 2005 in order to study. Those are, of course, relevant facts. However, it seems to me that it is not necessarily clear what significance should be attached to them. Throughout that period a cease-fire was in place, even if, in the latter part of the period, it was beginning to break down. In fact, the Immigration Judge identified the major break-down of the cease-fire as occurring after the appellant had left to come to the UK: see paragraph 32(6). So far as I know, there is no general guidance as to the significance of the grant of a passport in January 2003 to a Tamil who had been a member of the LTTE, nor was there any evidence on the point. At a time of cease-fire, when the Sri Lanka Government may have been attempting or hoping to integrate all or some Tamils on a non-hostile basis, so as to undermine support for LTTE, it may be that the grant of a passport to the appellant was not out of the ordinary, nor a sign that all had necessarily been forgiven and forgotten. It seems to me that the Immigration Judge ought to have been quite cautious before attaching particular importance to this, or to the appellant’s ability to operate freely in Colombo during the period from 2002 to January 2005, as casting any particular light on the likely attitude to the Government in the present circumstances. I therefore doubt whether what the judge said on this point at paragraph 32(17) is justified by the evidence before him.

It may be that, if the judge had mentioned the most important passages in TK, including those at paragraphs 134-5, 142 and 174, and had shown that he had thought about the implications of those passages and taken them into account together with the other relevant facts of the appellant’s case, a finding that he had not shown that there was a real risk could have been supported. But in the absence of any mention of a passage so clearly relevant as paragraph 134, in particular, it seems to me that the judge did err in law, by failing to apply the relevant country guidance.

I accept Mr Staker’s submission that a judge does not have to refer to every relevant point and explain his reasoning on each and every point taken in the case. I also accept that an appellate court is not to interfere lightly with a decision by an Immigration Judge as an expert tribunal, a point emphasised by Lord Justice Pill in his judgment which I have had the opportunity of reading. Immigration Judge Walker did refer to the relevant matters in going though the list of LP risk factors. His determination shows no sign of his having carried out a balancing exercise as to the significance of the points on which the appellant may be seen to be at risk. In particular, the relevance of paragraph 134 of TK, which he omitted to mention, and on which at the very least he did not express his reasoning, is so central to the appellant’s case that it seems to me that this is a case in which it is right to hold that his determination is vitiated by an error of law. Either he did not have regard to the point, which is an error of law in itself, or he failed to explain what he thought about it and why it was not a strong point in the appellant’s favour, which is also an error of law, though of a different kind, because the appellant cannot tell why he has lost his case.

It may be that, on a further re-consideration, it will be found that the appellant’s apprehension of a risk of ill-treatment on return is not justified. But it seems to me that the appellant is entitled to a hearing and to a decision which does address the material risk factors, and the significance attached to them in the country guidance, with proper reasoning as to how they apply in relation to the facts of the particular case. That he has not yet had.

I would therefore allow the appeal and remit the case to the Upper Tribunal (Immigration and Asylum Chamber) for the decision on the appeal to be re-made, pursuant to paragraph 12 of Schedule 4 to the Transfer of Functions of the Asylum and Immigration Tribunal Order 2010 and section 14 of the Tribunals Courts and Enforcement Act 2007.

The appeal should proceed in the Upper Tribunal on the basis that certain of the findings of fact made by Immigration Judge Walker in the course of his paragraph 32 should stand. These are those recorded in sub-paragraphs (2) to (6), in the first three sentences of sub-paragraph (7), in sub-paragraphs (8) to (10), in sub-paragraph (11) except for the last two sentences, in sub-paragraph (12), in sub-paragraph (13) apart from the first two sentences, and in sub-paragraphs (14) and (15).

At the conclusion of the argument on this appeal, I was satisfied that Immigration Judge Walker’s decision was vitiated by an error of law and that the appeal ought to be allowed and the appellant’s case remitted for a re-hearing. Lloyd LJ, whose judgment I have had the advantage of reading in draft, has comprehensively set out the facts and issues and I am in complete and respectful agreement with his reasoning and conclusion. The deficiency in IJ Walker’s reasoning was his omission to provide any indication that he had factored into his consideration of the disposition of the appeal the important guidance in TK (Tamils – LP updated) Sri Lanka CG [2009] UKAIT 00049 to be found in paragraphs 134, 135, 142 and 174.

I have also had the advantage of reading in draft the different view expressed by Pill LJ. I do not question the deference that this court should ordinarily pay to the decisions of an expert tribunal such as that whose decision is the subject of this appeal. In the particular circumstances of the present case, I do not, however, regard that deference as requiring a conclusion that the tribunal must be taken to have had due regard to all relevant considerations in arriving at the conclusion that it did.

The heart of the tribunal’s reasoning is in paragraphs 32(16) to (19). IJ Walker cited, at (16), from the case summary at the beginning of the report of TK. He then misdescribed the principal focus of interest of the Sri Lankan authorities as so summarised, referring to only part of it, although I would not regard that as a material error as it is not suggested that the appellant’s previous activities brought him within any part of the summarised focus. IJ Walker then made the observations that Lloyd LJ has summarised and quoted in paragraph [16] above, expressing his belief that the passage of time was such that the appellant ‘would not be … of any real interest to the authorities and therefore at no real risk of being arrested or detained.’ He then listed the risk factors set out in paragraph 161 of LP (LTTE area – Tamils – Colombo – risk?) Sri Lanka CG [2007] UKAIT 00076, adding brief comments to those that applied, but saying in relation to the signing of a confession no more than that it did apply. He then expressed, at (19), his overall conclusion as to the risk that the appellant faced on return (see paragraph [20] above).

The concern I have with that conclusion, which essentially echoes what had been earlier said in paragraph 32(16), is that IJ Walker nowhere explains why the particular factors upon which he rested it exclude the need to explain away the risk directly relevant to the appellant’s case voiced in the third sentence of paragraph 134 of TK (quoted by Lloyd LJ at paragraph [29]), as to which ‘great caution is needed in respect of someone known to have a previous record of a detention …’ (paragraph 174 of TK). For the reasons given by Lloyd LJ in his paragraph [42], that was an error of law.

I too would therefore allow the appeal. I also agree with Lloyd LJ’s directions in his paragraph [45].

I gratefully adopt the comprehensive statement of facts by Lloyd LJ but I regret I have come to a different conclusion. I will state my reasons briefly.

Lloyd LJ has referred to the guidance given by the Tribunal in TK (Tamils - LP updated) Sri Lanka CG [2009] UKAIT00049, which is voluminous. Lloyd LJ bases his conclusion on the failure of the Tribunal to mention paragraph 134 of TK, or at least to express its reasoning on that paragraph, which is held to be central to the appellant’s case (paragraph 42). Whilst providing that “much will depend on the precise circumstances”, paragraph 134 refers to possible risk faced by past members of LTTE.

The conclusion of the Tribunal, cited by Lloyd LJ at paragraph 20, was stated at sub-paragraph (19):

At sub-paragraph (18)(viii) reference was made to the absence of LTTE activity or fundraising by the appellant since his departure from Sri Lanka:

Other relevant factors are mentioned by Lloyd LJ at his paragraph 5. The Tribunal plainly attached weight to the lapse of time since LTTE membership was terminated and to the change of circumstances in Sri Lanka. When considering the case of TK herself, the Tribunal in TK stressed, at paragraph 160, the need to consider “the appellant’s particular circumstances”.

In my judgment, the Tribunal, as an expert fact finding tribunal, was entitled to reach the conclusion it did. The tenor of the entire determination and the final conclusion fairly reflect the approach in TK, read as a whole, and demonstrate an understanding of the situation in Sri Lanka. Failure to make specific reference to one paragraph in the guidance, paragraph 134, does not in my view invalidate the decision. The weight given to the lapse of time since LTTE membership ended was not misplaced. Given its knowledge of the general situation in Sri Lanka as expressed in TK as a whole, the Tribunal was entitled to reach the conclusion it did or, as Elias LJ put it when refusing leave on a consideration of the papers: “there is every reason to suppose there would be no real interest in him [the appellant] now if he were to return to Sri Lanka”.

Delivering the judgment of the Supreme Court in MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49, Sir John Dyson SCJ underlined the respect due to decisions of the Tribunal. The reasons why that is required were stated at paragraphs 45, 46, 49, 50 and 51.

In SS (Sri Lanka) v Secretary of State for the Home Department [2011] EWCA Civ 76 (judgment, 9 February 2011), Maurice Kay LJ, in a judgment with which Thomas LJ and Etherton LJ agreed, considered a decision of the Tribunal in relation to Sri Lanka. The facts were of course different from the present but Maurice Kay LJ posed the question whether on the totality of country guidance, the Immigration Judge had “reached a perverse conclusion in the light of her findings of fact”. Maurice Kay LJ made criticisms of the decision, but concluded, at paragraph 18:

I would follow the same approach in this case and dismiss the appeal.