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

The appellant is a national of Sri Lanka who was born on 16 August 1987. He left Sri Lanka on 20 July 2008 when he flew to Ivory Coast, where he remained for three months, before moving on to Congo (Brazzaville) where he remained for a further four months. In February 2009 he spent several days in France but eventually arrived in the United Kingdom on 14 February 2009. He claimed asylum on entry. His application was refused by the Secretary of State in a decision letter dated 9 March 2009. In a Determination promulgated on 29 June 2009, Immigration Judge Braybrook dismissed his appeal on asylum and human rights grounds. Following an order for reconsideration, Senior Immigration Judge McKee found no error of law in the determination of IJ Braybrook. SIJ McKee subsequently refused permission to appeal to this court. However the appellant later obtained permission from this court on limited grounds.

The appellant’s account, significant parts of which were not accepted by the Immigration Judge, can be summarised as follows. He is a Tamil from Karaitivu in eastern Sri Lanka. In January 2007 he and others were approached by the LTTE, held for some days and pressurised into providing assistance. He proceeded to spy for the LTTE on the local Karuna camp and on the police. On 26 November 2007, he and others were preparing to display a banner for Heroes Day. They were seen by Karuna group members who captured them. He was held for two days but told his captors that all that he had done to help the LTTE was done under pressure and amounted to no more than assistance towards the display of the banner. The Karuna group then handed him over to the Special Task Force (STF) who detained him for between 10 and 15 days and subjected him to ill-treatment. He was questioned about a recent shooting of STF members but he insisted that he had done no more than assist with the banner. In January 2008 he was released without charge but was required to report every day to the Karuna office. Following his release in January he was admitted to the Karaitivu Government Hospital where he was visited, pressurised and threatened by the LTTE. He spent two days in hospital and stitches were inserted to a 1cm wound to his head. On discharge he went into hiding because the LTTE were following him. He stayed with an uncle and aunt in Karaitivu. Initially he complied with his reporting requirement but stopped doing so because two of his group were shot whilst reporting. He then moved to an aunt’s house in Kalmunai some 4-5 Km away. In April he was spotted by the LTTE when they were looking for someone else. He ran off but they chased after him and shot at him. He then hid in a cousin’s house also in Kalmunai. On 18 June 2008 he travelled to Colombo, where he stayed in a hotel with his father. However, after a week he was arrested in a police raid. He was detained in a police station for a week and ill-treated. His father secured his release by payment of a bribe. He finally left Colombo on 20 July 2008 with the help of an agent paid for by his father.

The appellant’s case before the Immigration Judge was that he had a well-founded fear of persecution by the LTTE and/or by the Sri Lankan authorities. By the time his appeal was heard, the general situation in Sri Lanka had changed. The Immigration Judge, relying on recent country material, found that the LTTE “are finished as a political and military force”. No meaningful and active LTTE organisation remained in the appellant’s home area. He was at no risk of harassment and persecution at the hands of the LTTE. This part of the Immigration Judge’s determination is not challenged. The issue on appeal relates to the risk of persecution at the hands of the authorities. Although the claim is also put by reference to Articles 2 and 3 of the ECHR, it is common ground that in this case the appellant will succeed by reference to both the Refugee Convention and the ECHR.

The Immigration Judge did not accept that the appellant had been engaged in spying for the LTTE. She concluded that his only assistance had been in relation to the banner on the single occasion on 26 November 2007. She did not accept that he had been visited by LTTE members whilst he had been in a Government Hospital. She rejected his evidence about detention and ill-treatment in Colombo immediately prior to his departure from Sri Lanka.

The principal ground of appeal is that the Immigration Judge fell into material legal error by failing to hold that there was a well-founded fear of persecution upon return to Sri Lanka on the basis of her own findings of fact. It is then submitted that SIJ McKee also erred in law by failing to detect that legal flaw.

SIJ McKee observed that the determination of the Immigration Judge had an “unusual structure”. He described it as one in which she “has not set down all her findings in one place. Rather, they are interspersed with a chronological recapitulation of the appellant’s account”. That is a fair description. In order to understand IJ Braybrook’s reasoning, it is necessary to piece together findings located in different parts of her Determination. On any view, she did not find the appellant to be an impressive witness. At various points she described his evidence as “of limited plausibility”, “scarcely plausible” and “not always straightforward”.

The Immigration Judge found that the appellant had no sympathy for the LTTE and the very limited help he provided to them was the result of pressure and fear. So far as his detention by the Karuna group and the STF was concerned, he had told them that his assistance was limited to the preparation of the banner and that he had only become involved in that through fear. The Immigration Judge said:

The Immigration Judge stated:

All this led to the crucial findings set out in paragraph 39 as follows:

As I have said, the principal ground of appeal is that it was an error of law for the Immigration Judge not to have come to the contrary conclusion on the basis of her own findings of fact. This is essentially a perversity challenge. However, before I address it I should deal with two subsidiary grounds. The first, put in the alternative, is that the Immigration Judge failed to make a finding on the question whether the appellant had been detained by the Karuna group and the STF. I am entirely satisfied that there was no such failure. The Immigration Judge referred in paragraph 27 to the appellant having been “detained by the Karuna and the STF” and set out her findings about what had transpired. Moreover, in paragraph 39 she accepted that “the authorities in his home area had accepted his explanation” which can only be a reference to the explanation given during those detentions.

The second subsidiary ground is in the form of a complaint that the judge erred in paragraph 28 of her determination when she said that “there is no evidence at all that the Karuna or the STF made any attempt to trace [the appellant]” after he failed to report. Miss Bayati draws attention to the appellant’s witness statement where he states that, following his move to his aunt’s house, “after two months they started to search [for] me at aunt’s place as well. Therefore I relocated to Kalmunai”. The statement then continues that, following his relocation to his cousin’s house, “I heard that Karuna group had regularly visited to my Karaitivu residence to find me”. The Immigration Judge’s findings on these matters are to be found in paragraph 28. She accepted, or at least did not reject, that the Karuna group had come looking for the appellant at Karaitivu when he failed to report. However, she said “there is no indication that, if there was a search, it was very intensive, given they never found him”. Turning to the period between April and June 2008 when the appellant was in Kalmunai, she said: “There is no evidence at all that Karuna or the STF made any attempt to trace him in this period”. That is not strictly correct. There was the reference in the witness statement to the appellant having heard that the Karuna Group had visited the Karaitivu residence looking for him during that period. However, given the relative proximity of these various locations, even when one compensates for the Immigration Judge’s error, it is impossible to escape the conclusion that the totality of the evidence about the authorities looking for him was somewhat desultory. I do not think that Miss Bayati dissents from the proposition that, if she is to succeed, she needs to make good her principal ground of appeal, to which I now turn.

The established facts emphasised by Miss Bayati are that the appellant is a Tamil who had provided assistance, albeit limited and under pressure, to the LTTE, that he had been detained and questioned by the Karuna group and the STF, that upon release he had been subjected to a reporting condition, that he had ceased to comply with that condition and that his non-compliance had caused the authorities to search for him in his home area. Her submission has to be that those facts, when considered against the appropriate country guidance decisions, required a conclusion that there is a real likelihood of persecution or ill-treatment on return.

One of the difficulties about Sri Lankan cases is that conditions in the country have been fluid. In 2007 the AIT gave guidance in LP v Secretary of State for the Home Department, LP(LTTE area – Tamils – Colombo – risk?) Sri Lanka CG [2007] UK AIT 00076. It provided that, whilst Tamils are not automatically at risk of serious harm from the Sri Lankan authorities in Colombo, a number of factors may increase the risk. Twelve such factors were identified (at paragraph 238) as follows:

The AIT there noted that the general security situation in Sri Lanka had deteriorated following the effective breakdown of the ceasefire and the increase in terrorist activity by the LTTE. The AIT emphasised that the list of factors was not a checklist nor was it intended to be exhaustive. They fell to be considered both individually and cumulatively. It added (at paragraph 239):

The guidance in LP was endorsed by the Strasbourg Court in NA v United Kingdom [2008] EHRR 616. The following passages in the judgment are relevant:

Although both LP and NA were decided prior to the military defeat of the LTTE in May 2009, later country guidance from the AIT in TK(Tamils – LP updated) Sri Lanka CG [2009] UK AIT 00049 confirmed that the risk categories identified in LP and approved in NA remain valid. This latest guidance post-dated the hearing before and determination of the Immigration Judge in the present case. It seems that risks remain, not least because the authorities are concerned about the possibility that returning LTTE sympathisers may assist in the reconstruction of that defeated group. However, the AIT stated (at paragraph 76):

I note that in XY v Secretary of State for the Home Department [2010] EWCA Civ 770, Sedley LJ appears tacitly to have accepted (at paragraph 11) that any risk to the appellant in that case would have been greater “at the height of the civil war”.

Does the totality of the country guidance, in particular that in LP and NA, point to the Immigration Judge having reached a perverse conclusion in the light of her findings of fact? In my judgment, it does not. She undoubtedly had regard to the risk categories set out in NA. She refers to that authority in paragraph 39 and it is apparent from the way in which she expressed herself that she had the specific categories well in mind. Thus, for example, her reference to the availability of the appellant’s ID was no doubt prompted by the reference in the LP categories to “lack of ID card or other documentation”. She specifically had regard to what might transpire on arrival at the airport in Colombo, concluding that “there is no indication that there was anything to trigger suspicions that the appellant supported the LTTE”. In the remainder of paragraph 39 she effectively explained that conclusion. Her reasoning was that the appellant’s activity with the banner had been insignificant, that his explanation had apparently been accepted by the authorities resulting in his release without charge. Whilst it is true that he was required to report and later failed to do so, the evidence about attempts on the part of the authorities to apprehend him suggested a lack of intensity on their part. The Immigration Judge relied, and was entitled to rely, on the fact that the appellant had applied for a passport in his own name giving his own address during the period following his release from detention and upon the fact that his family have been left to live a life of normality since then. Miss Bayati is right to criticise the Immigration Judge for the passage in paragraph 39 in which she postulated, hypothetically, that the authorities in Colombo appeared to be unaware of his failures to report in Karaitivu. That was a misconceived observation in the light of the unequivocal finding that the appellant had not come to the attention of the authorities in Colombo. However, it does not undermine the reasoning as a whole. The essence of that reasoning is that the profile of this particular appellant does not give rise to a real likelihood of persecution or ill-treatment upon his arrival at the airport in Colombo. He was and is not of sufficient interest for such a risk to have materialised. In my judgment, that conclusion was permissible and is not tainted by perversity.

This is an apt case in which to refer to the judgment of Sir John Dyson in MA(Somalia) v Secretary of State for the Home Department [2010] UKSC 49 where he said (at paragraph 45):

In the present case, the perversity challenge having failed, the appeal is “in truth, … no more than a disagreement with the AIT’s assessment of the facts”.

For all these reasons I would dismiss the appeal.

I agree.

I also agree.