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

MS is an asylum seeker from Sri Lanka. His application was refused by the Secretary of State on asylum and human rights grounds. However he successfully appealed to the First-tier Tribunal (FTT). Thereafter the Secretary of State appealed to the Upper Tribunal Immigration and Asylum Chamber (UT). The UT found material legal error in the determination of the FTT and allowed the Secretary of State’s appeal. MS now seeks permission to appeal to this Court and, if permission be granted, to pursue his appeal before us. The case is an unusual one of its kind in that, as asserted in the skeleton argument on behalf of the Secretary of State, the facts are not in dispute. Nevertheless, the Secretary of State maintains that the determination of the FTT was seriously flawed because of inadequate reasoning and a failure to engage with the case advanced by the Secretary of State, whilst MS maintains that the determination of the FTT was without legal error but that the determination of the UT was seriously flawed in its reasoning and understanding of the evidence. In due course I shall come to the question of permission to appeal but it will be helpful if I state at the outset that we grant permission.

The facts which are said not to be in dispute were set out by the UT in the following paragraphs:

“2.

… the respondent is a Tamil from Colombo. He joined the rebel LTTE in November 2006. He was involved in arranging accommodation in Colombo for the members of the LTTE visiting Colombo in pairs for purposes which were not disclosed to him. He did so on about four occasions. In addition, he was asked to visit a place called Homagama in order to collect information about the Army barracks which were situated there. The information which he was asked to collect was the type of fencing surrounding the barracks, the number of buildings there, and so on in order to enable an estimate to be formed as to the number of soldiers there. That information was needed for the purposes of an intended attack on the barracks by the LTTE but in the event the attack did not take place. Apart from that, the respondent does not claim to have carried out any other activities for the LTTE. He was arrested in October 2009 by the Sri Lankan Army after his activities came to their attention. He was beaten and interrogated and signed a confession admitting the activities in which he had been involved. Nevertheless, he was released from the Army camp, albeit unofficially, in January 2010 after a bribe had been paid on his behalf.

3.

Some three weeks later on 3 February 2010, the respondent applied for entry clearance to come to the United Kingdom as a Tier 4 (general) Student. His application was granted on 11 March 2010. He then left Sri Lanka using his own passport on 20 May 2010 and arrived in the United Kingdom on the same day. Some seven months later, on 23 December 2010, he applied for asylum. The grounds on which he did so were that he would be at risk of being detained and subjected to further ill-treatment on return to Sri Lanka because of his known involvement with the LTTE.”

As may be implicit in that account, it is common ground that when MS was arrested it was a targeted arrest rather than part of a round-up.

Although MS was available for cross-examination at the FTT, the Home Office Presenting Officer chose not to cross-examine him. In his determination, Immigration Judge Morgan noted that the Secretary of State had accepted the basis of MS’s claim and stated that that evidence was “credible and consistent both in itself and with the country evidence”. He continued:

“19.

In summary I accept the core features of the appellant’s claim. In particular I find that the appellant has been recently ill-treated and tortured by the Sri Lankan authorities because of his actual involvement with the LTTE. This was not an insignificant detention in a round-up. The appellant was detained and ill-treated over a period of nearly two months in Colombo because of his activities on behalf of the intelligence wing of the LTTE and during this detention he signed a confession confirming his activities on behalf of the LTTE.

20.

I find that the appellant does fall into the risk categories identified in the latest country guidance. I find that the risk to the appellant, what caused him to be persecuted in the past, arise from the fact that he was a known LTTE member of the intelligence wing of the LTTE operating in Colombo. The greater accuracy of records does not assist this appellant because he has been of real interest to the authorities because of his actual involvement and there is a real risk that if returned … he would be detained and thoroughly investigated. The fact that the appellant has been detained recently and has signed a confession exacerbates the risks that he will face. I find a real risk that the records will cause questions to be asked about the circumstances of his release. The fact that false documents were provided to enable him to leave the camp does not in my judgment indicate that he was released because he was of no interest. If he had been of no interest there would have been no need to provide him with this false documentation. Even if the appellant is eventually released I find that there is a real risk that the past ill-treatment suffered by the appellant would be repeated during his detention.”

The appeal was therefore allowed on asylum and human rights grounds.

The Secretary of State was granted permission to appeal to the UT by Senior Immigration Judge Waumsley who was satisfied

“albeit with a degree of hesitation, that it is arguable that in reaching his decision to allow the appeal for the reasons set out at paragraph 20 of his determination, Immigration Judge Morgan failed to take proper account of the points raised by the respondent in her reasons for refusal letter … ”

On 26 August 2011 Senior Immigration Judge Waumsley, now a judge of the UT, allowed the Secretary of State’s appeal. The determination includes the following paragraphs:

“15.

… I am satisfied that the Immigration Judge did indeed make a material error of law in reaching his decision. The evidence which was before him included a copy of the appellant’s detailed reasons for refusal letter dated 21 January 2011. In that letter, the appellant had set out at length the reasons why she had considered that the respondent would not be at real risk of persecution and/or ill-treatment on return to Sri Lanka despite her acceptance that he had been detained and ill-treated previously …

16.

In particular, it was the appellant’s case that the fact that the respondent had been released from detention showed that he was of no further interest to the Sri Lankan authorities and would therefore not be at risk of detention on return. In addition, the respondent’s own reply during his asylum interview … was a further indication that he was of no continuing interest to the Sri Lankan Army. By his own account, he had only ever been a low level member of the LTTE. Following his release from detention, he had waited for some three weeks before making an entry clearance application to travel to the United Kingdom, and had then delayed his departure for a further four months before leaving through normal channels using his own Sri Lankan passport. He did not have any difficulties whilst leaving the country through the airport using his own passport. That was, in the appellant’s view, strongly indicative that he was not of any interest to the Sri Lankan authorities.

17.

The Immigration Judge was not of course obliged to accept the points made by the appellant in those paragraphs of her reasons for refusal letter. Nevertheless, it was necessary for him to give proper consideration to them when reaching his decision. He did not do so. In his determination, he made a relatively brief reference to the reasons for refusal letter … but did not mention, let alone engage with, the various points raised by the appellant at paragraphs 29 to 40 … of that letter. It was a material error of law on his part not to do so. It therefore now falls to me to substitute my own decision.”

After further reference to undisputed facts, the determination continues:

“18

… As a result of … interrogation and ill-treatment, he made a full confession. However, despite the fact that the Sri Lankan authorities had his signed confession, he was released from custody in 2010 after a bribe had been paid. I take account of the fact that at the time of the release from custody, a false identity document was used. Nevertheless, the fact remains that the respondent was released from Army custody, despite the fact that he had made a full confession of activities which could clearly have formed the basis of a criminal prosecution under anti-terrorism legislation if the Sri Lankan authorities had wanted to take that course. They did not do so. That was strongly indicative of a lack of any significant further interest in him.

19.

Further more, on his own account, no attempt was made to re-detain the respondent before he left Sri Lanka some four months later. By his own admission, he left through normal channels at the airport using his own Sri Lankan passport. Once again, that is strongly indicative that he was of no further interest to the Sri Lankan authorities. It is also indicative that the appellant knew that to be the case, as he clearly would not have taken the risk of trying to leave the country through the airport using his own passport if he had thought that there was any real risk of being detained on that occasion and subjected to further ill-treatment.

20.

Although I take due account of the fact that the appellant was released from Army custody after a bribe had been paid, and that a false identity document was provided for his use at the time of his release, there is nevertheless still considerable force in the view expressed by Mr Justice Collins in his judgment in Thangeswarajah [2007] EWHC 3288 (Admin) at paragraph 11 … . As the learned judge stated:

‘Generally release on the payment of a bribe without more would not indicate that there was an ongoing risk because the release would be likely to be recorded as a release because there was nothing further to be held against the individual. It is hardly likely that whoever took the bribe would stick his neck out by effectively admitting that there should not have been a release but for the bribe, although it might of course be different if there had been a release on formal bail [which is not the position here].’

21.

For these reasons I am satisfied that the respondent has failed to show that there is in reality any real risk of being detained and subjected to further ill-treatment by the Sri Lankan authorities, either immediately on his return to Sri Lanka or subsequently if he were to come to their attention.”

Accordingly the decision of the FTT was set aside and, having re-heard MS’s appeal, the UT dismissed it on all grounds.

In essence, before this Court MS is maintaining that the UT did not properly engage with the documentary material submitted on his behalf which is a mirror image of the case for the Secretary of State which is that the FTT had not properly engaged with the written material upon which she relied, in particular the reasons for refusal letter. Accordingly, it is necessary to set out some of the documentary material. I shall concentrate, as the parties have done, on the issues of the bribe which was instrumental in securing MS’s release and the circumstances surrounding his passage through the airport on departure from Sri Lanka.

The reasons for refusal letter

The letter is 16 pages long and goes into considerable detail. After extensive citation from country background documentation, it includes the following passages:

“30… as you were released it is considered that you were of no further interest, and therefore would not be at risk of detention on return to Sri Lanka.

31

In fact your own testimony supports the statement made … above. You claim that ‘There is no use for the Army to keep me in they might have thought that they could get some money from my relatives and either release me or kill me’. … You also stated ‘… when the Army questioned the people about their relatives they probably had in mind to collect some money from them in return to release people in the lower rung of the LTTE’. By your own admission then, you were a low level LTTE member which the Sri Lankan Army had no further interest in so they decided to use you as a means of extortion instead. This is consistent with the above objective information which details that those of no further interest were released. Given that you were released it is not accepted that you were of any further interest to the Sri Lankan authorities.

32.

Your claim to have been released on payment of a bribe has been considered further. It is considered inconsistent that if the authorities believed you were genuinely a member of the LTTE who they had further interest in, they would release you. This finding is supported by the judgment in Thangeswarajah v SSHD …

33.

You claim your release was authorised by the Sri Lankan Army. As such it is considered that you were of little interest to the authorities. Therefore it is not accepted that you would be of interest to the authorities on return to Sri Lanka.

34.

… You walked past several desks and checkpoints as you left the camp where you had been detained for three months, none of whom questioned you. Therefore your claim that you would still be of interest to the authorities on return to Sri Lanka is rejected.

35.

Consideration has been given to your departure from Sri Lanka. You claim that your passport and visa application provided by the agent contained your correct details and photograph. If you secured the assistance of an agent to help you travel to the UK because you believed you were at risk in Sri Lanka it is considered inconsistent that you would provide your genuine details when trying to leave the country. Therefore your claim that you applied for a visit visa to the UK with the help of an agent, in the circumstances you claim, is rejected.

36.

Moreover if as you claim, you were released from detention on 15 January 2010 and you feared for your life it is considered inconsistent that you would wait three weeks to make a visa application to travel to the UK and then a further four months to leave the country, especially if you already had your own Sri Lankan passport. This leads to the conclusion that you did not leave Sri Lanka in the circumstances you claim. As such your claim that you left Sri Lanka in fear of your life is rejected.

37.

Furthermore you were able to travel within Sri Lanka and leave the country through the airport using your own documents without difficulty. This is considered to strongly indicate that you were not a person of interest to the Sri Lankan authorities in 2010 and there is no reason why this would not still be the case today.

38.

You claim that you left the country on your own passport. It is, therefore, considered that your tickets or confirmation details for your flight would have been in your name.

…

40.

In light of the objective information cited above it is considered that if you were of genuine interest to the Sri Lankan authorities it is entirely implausible that you would have had no difficulty when leaving the country.”

MS’s witness statement

In a witness statement dated 14 March 2011, MS responded in detail to the reasons for refusal letter. He disputed that his involvement with the LTTE was at a low level. The statement included the following passages:

“5.

… you cannot become a member of the Intelligence Wing as a new recruit; you have to earn the trust and respect of the LTTE and that is why I was a member of the Intelligence Wing.

6.

The SSHD … states that my release on payment of a bribe means that I was of insufficient interest to the authorities in Sri Lanka. I disagree with this assertion. (He then gave details of his experience in detention including his interrogation, ill-treatment and confession).

7.

I was released from detention on 15 January 2010 and on the day of my release an officer came into the room and he gave me some clothes and an ID card with the name Jabar Mohamed and told me to get dressed and said that I should show the ID card to the Security and leave. I was concerned at these instructions but had worked out that my escape from detention had been secured in this way and I had seen this officer before. The person who checked my ID card did not really check me in the thorough sense and I guess that this checking officer was in on the escape and had been paid.

8.

I later found out that my mother’s sister-in-law’s husband knows a Muslim person who has some influence with the authorities and he got me out of detention and they had paid around 6 lakhs for my release from detention. This Muslim person named ‘Anwar’ lived in Maradana and appeared to be wealthy and thus I considered that he had contacts. …

9.

… the authorities must have passed … information to my family, in the knowledge that they would get money out of me or from them but this did not mean that they did not consider me to be an LTTE member. In reality they knew that there were no more LTTE controlled areas for me to hide in, if I was released from detention and I could be picked up again if I was rearrested after being released from detention. The fact that I was released on payment of a bribe does not mean that they did not consider me to be an LTTE member … the SSHD’s assertion that they could not have considered me to be an LTTE member is not consistent with the authorities’ actions. The authorities took the time and trouble to question me and document me and I was formally detained by them.

10.

… The authorities clearly detailed and catalogued me and got some money out of me as well. This does not mean that I am not at risk on return to Sri Lanka as the record will clearly demonstrate that I am on record as an LTTE member. The fact that I was released from detention does not mean that my record will not exist.

…

12.

I do not consider that I am not at risk on return to Sri Lanka due to the fact that I was not detected upon leaving the camp and through the airport in Sri Lanka. Anwar had secured my release from detention after my aunt’s family had paid a bribe for my release and the agent informed me that the easiest way for me to leave Sri Lanka was with the use of a student visa and he assisted me in obtaining the visa and I provided my own details, as he had instructed me to do so and stated that I would not have any problems as he would use his contacts to get the student visa. He also informed me that of the date that I should leave Sri Lanka and stated that his contacts would be in place at the immigration counters at the airport and that I had nothing to worry at the one checkpoint on approach to Katunayake airport, as they had no computer facilities there. I followed all of his instructions and did not attempt to leave Sri Lanka earlier, in case I was arrested and detained on trying to leave Sri Lanka any earlier. The checks in May 2010 had also lessened and the agent told me that I should follow his instructions and that is exactly what I did.

13.

I do not accept therefore that I have nothing to fear on return to Sri Lanka, merely because I was not arrested and detained at the airport upon leaving. I did not have problem because the agent had his contacts at the airport … ”

It is beyond dispute that MS comes within several of the risk categories described in LP v Secretary of State for the Home Department CG [2007] UKAIT 0076 and TK v Secretary of State for the Home Department CG [2009] UKAIT 00049. The task for the tribunals was to evaluate his individual case.

The first issue is whether the determination of the FTT was vitiated by legal error. If it was not, there was no basis upon which the UT could properly interfere with the decision in favour of the appellant. Although the Secretary of State’s grounds of appeal to the UT were expressed at least partly as a reasons challenge, they also embraced a complaint that the FTT had not engaged with or had not addressed features of the Secretary of State’s case. In truth, reasons challenges and complaints of a failure to have regard to material points often overlap. In the present case, the UT (at paragraph 17) allowed the Secretary of State’s appeal because the FFT “did not mention, let alone engage with, the various points raised” in the reasons for refusal letter. Before us, Mr David Blundell has concentrated on the two points which he describes as “the only matters in issue between the parties”, namely the facts that the appellant was released on payment of a bribe and that he had been able to depart from Sri Lanka using his own passport. It has always been the Secretary of State’s contention that these undisputed facts negatived a finding of risk on return.

It seems to me that there was and is force in the Secretary of State’s complaint that the FTT did not deal with her case in relation to the bribe. The reasons for refusal letter had relied on the appellant’s own account in interview as well as the observations of Collins J in Thangeswarajah as supporting the proposition that payment of a bribe in order to secure release may point to corrupt opportunism on the part of those responsible for detention who take money in the knowledge that the detainee would be released anyway because he is no longer of immediate interest to the authorities. This proposition may or may not be reflected in the facts of a particular case but, at the very least, it calls for evaluation when raised and the FTT omitted to evaluate it in this case. In this way, it failed to engage with one of the Secretary of State’s two main points. In addition, it virtually ignored the point about departure by use of the appellant’s own passport. For these reasons, I reject the first ground of appeal.

The real issue on the present appeal is whether the UT itself fell into material legal error when, upon the rehearing, it dismissed the appellant’s appeal against the refusal by the Secretary of State of his asylum and human rights applications. In my judgment it did. Of the two disputed issues identified by Mr Blundell, it is convenient to consider the second one – departure from Sri Lanka by use of the appellant’s own passport – first.

It is important to recall that, throughout the course of the litigation in the FTT and the UT, the Secretary of State’s representatives declined the opportunity to cross-examine the appellant. That has the necessary consequence that the Secretary of State must be taken to accept, or at least not to dispute, the appellant’s factual account. It is true that, in the reasons for refusal letter, the Secretary of State’s decision was expressed at times in terms of “rejection” of the appellant’s account of the circumstances in which he left Sri Lanka and that, if he had been of interest to the authorities, it was “entirely implausible” that he would have had no difficulty when leaving the country. However, following service of that letter, the appellant made his witness statement which addressed the points made on behalf of the Secretary of State. I have set out the relevant passages at paragraph 9, above. It contained a detailed explanation as to why he had passed through the airport unchallenged. It would have been open to the Secretary of State to dispute or at least to test this account in cross-examination but her representative elected not to do so. It is hardly surprising that, in these circumstances, the FTT accepted the appellant’s evidence as “credible and consistent”.

The appellant’s evidence remained undisputed and untested in the UT. However, at paragraph 19 of the determination of the UT, it was stated:

“By his own admission, he left through normal channels at the airport using his own Sri Lankan passport. Once again, that is strongly indicative that he was of no further interest to the Sri Lankan authorities.”

For whatever reason, that was to misstate the appellant’s case as set out in his witness statement. Far from having left “through normal channels”, he had left with the collusion of those who had been corrupted by his agent. Why (it is asked on his behalf) would a man who is or believes himself to be of no further interest to the authorities, resort to such a mode of departure, with its obvious attendant risks?

In my judgment, paragraph 19 of the UT’s determination is fundamentally flawed because it does not address the appellant’s evidence on the airport issue and it ignores the fact that the Secretary of State elected not to challenge that evidence. It would be grossly unfair if, having so elected, the Secretary of State were now able to treat this important part of the appellant’s account as susceptible to an adverse inferential finding. For my part, I would grant the appellant permission to appeal and would allow his appeal on this ground.

The fact that he had succeeded in the FTT, coupled with the severe consequences for the appellant if he were to be stuck with a flawed decision, persuade me that he satisfies the second appeals test as explained in JD (Congo) v Secretary of State for the Home Department [2012] EWCA Civ 327.

The second disputed area, namely release on payment of a bribe, is more difficult. Once again, the election on behalf of the Secretary of State not to cross-examine the appellant must have the corollary that it is not permissible to go behind the appellant’s factual account. However, he had conceded in his interview that sometimes bribes are taken by officials who are going to release a detainee in any event and, even though the Secretary of State must be taken to have accepted the appellant’s factual account, it remained open to her to rely on the Thangeswarajah point. It strikes me as a difficult point in this case because of the acceptance that the appellant was involved in intelligence work for the LTTE and that he made a true confession about that to the interrogators who had mistreated him. It would surprise me if Thangeswarajah were to be a trump card for the Secretary of State in every case of release following payment of a bribe. However, that is more a matter for the expert tribunal than for this Court.

It follows from what I have said that, having granted permission, I would allow this appeal and remit the case for rehearing in the UT, where, it seems to me, the Secretary of State will remain bound by her acceptance of the appellant’s factual account. I do not feel able to say that this Court can produce finality without a remittal.

I agree.

I also agree.