NP (Sri Lanka) v Secretary of State For the Home Department

This is an appeal with permission granted by Mummery LJ on 2 February 2012 against a decision of the Upper Tribunal (Deputy Judge O'Connor) promulgated on 3 June 2011 by which the earlier determination of the First-tier Tribunal was set aside in part, but the appellant's appeal against the Secretary of State's refusal of asylum on 4 November 2010 was dismissed.

The appellant is a national of Sri Lanka born on 10 February 1978. He arrived in the United Kingdom on 21 April 2010 and claimed asylum. The essence of his claim is crisply summarised by Deputy Judge O'Connor at paragraph 2 of his determination as follows:

“2.

The core of the appellant’s case is that he is a Tamil who originated from the North of Sri Lanka, but who moved to Vanni in the north-east of Sri Lanka in 1995. He asserts that in December 2007 he was forcefully recruited as a member of the LTTE, and taken to a Vaddakachi camp. After initially refusing to cooperate he was thereafter recruited into the Kumaran regiment. He then undertook one month of training and was stationed for a further two months as a sentry at an LTTE camp. He subsequently variously stood entry at border points and also delivered items to the border areas. In May 2009 he sustained a head injury when feeling army and air attacks. He has a visible one-inch scar to his forehead. The appellant then states that on, or around, the 18^th May 2009 he was taken to Omanthai checkpoint, and then to Ananthakumarasamy camp, where he was identified by PAPPA as a former LTTE member, along with other members of his regiment. He asserts that he then confessed to being an LTTE member, and that the army took his name and photograph and put him in a guarded tent with other identified LTTE members, awaiting transfer to another camp the following day. The appellant states that he then escaped from detention with a number of others, prior to [being] transferred. He travelled to his uncle’s house in Vavuniya who then facilitated his exit from Sri Lanka by ship.”

Dismissing the appellant's appeal from the Secretary of State's refusal of asylum, Immigration Judge Napthine in the First-tier Tribunal on 31 December 2010 held that the appellant's account of his detention and escape was not credible and it was not reasonably likely that he would be of any interest to the Sri Lankan authorities if he were returned.

In the Upper Tribunal the Secretary of State conceded, and Deputy Judge O'Connor accepted, that the First-tier Tribunal had erred in law in the terms pleaded in the second ground of appeal to the Upper Tribunal as follows:

The Upper Tribunal proceeded to reject the appellant's criticisms of the FTT's conclusions as to his credibility and held that the only error made by the FTT was that identified in the conceded ground of appeal. The Deputy Judge then went on to remake the asylum decision (see paragraphs 18 and following of his determination). He noted that the appellant also framed his case by reference to the Qualification Regulations of 2006 and Article 3 of the European Convention on Human Rights.

The Secretary of State before the Upper Tribunal relied on internal flight, submitting that the appellant could relocate in Colombo and that it would not be unduly harsh for him to do so. She accepted (paragraph 28) that the appellant would be at risk of persecution in his home area of Vanni because he had not been screened. The Upper Tribunal accepted the Secretary of State's case on internal flight and accordingly dismissed the appeal.

The principal ground of appeal in this court is that, in the circumstances, the Secretary of State was not entitled to rely on an internal flight alternative at all and the Upper Tribunal should not have considered it. The argument is put two ways. (1) Internal flight was not part of the Secretary of State's case in the original decision letter and before the FTT. That being so, the issue should not have been addressed on appeal. (2) Before the Upper Tribunal the Secretary of State failed to file a response in respect of internal flight as required by the applicable procedure rules. It is submitted in the Amended Grounds (paragraph 11 and 14), a submission persisted in by Mr Chelvan this morning, that the Upper Tribunal lacked all jurisdiction to entertain an issue not before the FTT at the first appeal.

It is right that there is nothing in the decision letter about internal flight. It was then the Secretary of State's case that the appellant could be returned safely to Sri Lanka, including his home area, so that no question of internal flight arose. It is however to be noted that at paragraph 12 of his skeleton argument before the FTT the appellant himself asserted that because he could not be returned to Vanni, the case was one of internal relocation; but the FTT did not address internal relocation, accepting the Secretary of State's primary case at that time that the appellant was not in any event a refugee.

In asserting that the Secretary of State should not be allowed to rely on internal flight, since it was not raised in the decision letter, Mr Chelvan deploys: 1) the Secretary of State's own asylum policy instructions on internal relocation; 2) Article 8 of the Refugee Qualification Directive 2004/83/EC; and also 3) the observations of Sedley LJ in Daoud v SSHD [2005] EWCA Civ 755 at paragraph 12.

I turn to the asylum policy instructions (the API). Heading number 3 of this document reads “Refusing on internal relocation grounds". It states:

Mr Chelvan submits that the published policy gives rise to a legitimate expectation that if the Secretary of State does not rely on internal relocation as a reason for refusal at the time of decision he or she cannot rely on it later on an appeal. I wholly disagree. The API has no application to this case. The Secretary of State's decision letter did not rely on internal flight at all with or without other grounds. In any event the API does not bind the Upper Tribunal, as the deputy judge stated (paragraph 34).

I turn next to the Qualification Directive. Article 8.1 of the Directive provides that member states may refuse a claim for international protection on internal flight grounds. Article 8.2 provides as follows:

“In examining whether a part of the country of origin is in accordance with paragraph 1, Member States shall at the time of taking the decision on the application have regard to the general circumstances prevailing in that part of the country and to the personal circumstances of the applicant.”

Article 8, in my judgment, has no more application to this case than does the API. The Deputy Judge dealt with this aspect of the case correctly at paragraph 35 as follows:

Next, Daoud. In the case of Daoud Sedley LJ said this at paragraph 12:

“Internal relocation is not, as Home Office presenting officers seem often to think it is, a throw-away submission in case other arguments fail.  It is a serious and frequently problematical issue, requiring proper notice, proper evidence and proper argument, and it is governed by legal tests to which this court has more than once devoted attention.”

With respect, I would offer no qualification whatever to what was here said by Sedley LJ. In the ordinary way it seems to me plain that any substantive point to be taken by the Secretary of State should be notified to the appellant so that he or she can deal with it. The learned Lord Justice was, however, plainly not indicating that an internal flight issue might not properly arise for the first time at the appeal stage, or that the Tribunal would not in that event be obliged to deal with it, or that so rigid an approach should be taken to the appeal process as to exclude consideration of an internal relocation issue for want of notice even if there is not the slightest prejudice to the appellant. In context Sedley LJ was in fact doing no more than approve the adjudicator's strictures based on the want of notification of the issue in that particular case. I would, with great respect, underline the good sense of what was said in P and M v SSHD [2005] Imm. AR 84, paragraph 34:

“Given that the issue was not raised before the Adjudicator, the question then arises as to whether the Secretary of State should be permitted to raise the issue on appeal. In our view, unless some explanation is put forward by the Secretary of State as to why the issue was not raised earlier, the IAT should be slow to allow such an issue to be raised on appeal. Further, if the IAT do allow such an issue to be raised on appeal, the appellant must be permitted to give oral evidence on the issue.”

This directs attention to the overall requirement of procedural fairness.

I turn next to the appellant's point on the Procedure Rules. Rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008 in part provides:

“(1A) Subject to any direction given by the Upper Tribunal, a respondent may provide a response to a notice of appeal.

(2)

Any response provided under paragraph (1A) must be in writing and must be sent or delivered to the Upper Tribunal so that it is received

(a)

if an application for permission to appeal stands as the notice of appeal, no later than one month after the date on which the respondent was sent notice that permission to appeal had been granted;

(aa) in a fast-track case, one day before the hearing of the appeal; or

(b)

in any other case, no later than 1 month after the date on which the Upper Tribunal sent a copy of the notice of appeal to the respondent.

(3)

The response must state (a) the name and address of the respondent;

(b)

the name and address of the representative (if any) of the respondent;

(c)

an address where documents for the respondent may be sent or delivered;

(d)

whether the respondent opposes the appeal;

(e)

the grounds on which the respondent relies, including (in the case of an appeal against the decision of another Tribunal) any grounds on which the respondent was unsuccessful in the proceedings which are the subject of the appeal, but intends to rely in the appeal;

and (f) whether the respondent wants the case to be dealt with at a hearing.”

Subparagraph (4):

“(4)

If the respondent provides the response to the Upper Tribunal later than the time required by paragraph (2) or by an extension of time allowed under rule 5(3)(a)...the response must include a request for an extension of time and the reason why the response was not provided in time.

(5). When the Upper Tribunal receives the response it must send a copy of the response and any accompanying documents to the appellant and each other party.”

It will be seen from that citation that the rule is quite detailed and elaborate. However, it does not on its face require a respondent's notice to be provided, at any rate without a direction from the Upper Tribunal. There are now standard directions.

Moreover, in this particular case a specific direction was given by SIJ Perkins on 28 February 2011 as follows:

It is common ground that the Secretary of State did not supply a skeleton argument or a regulation 24 response. In my judgment, even if the Secretary of State were in breach of Rule 24, which strictly she is not, that could not act as a jurisdictional bar to the Upper Tribunal's power and duty to consider an issue such as that relating to internal flight which arose here. Likewise, the failure to serve a skeleton argument cannot have that effect. In fact, as regards the latter, it seems to me likely that a skeleton was not served because the Secretary of State was conceding that, given TK, the appellant would not be safe if returned to his home area.

I entertain no doubt but that Rule 24 is an important provision and indeed has been treated as such in a number of Tribunal decisions to which Mr Chelvan has referred us this morning. It is an important means of securing procedural fairness, on which the court and the Tribunal will always insist. If an appellant was so taken by surprise by an issue being raised such as that of internal flight that he could not properly deal with it, he would of course be accommodated as appropriate by an adjournment in the Tribunal, or if necessary by the Tribunal's declining to entertain the point. If the Upper Tribunal dealt with such an argument without giving the appellant a proper opportunity, this court would likely be sympathetic to an appeal, though the appeal would be on fairness grounds and the relief granted would in all probability be a remittal for a rehearing of the case, not a grant of asylum outright with the new point left unconsidered. In this case, however, the appellant himself took the view that his appeal to the FTT turned on internal flight: see his skeleton argument, paragraph 12, before that Tribunal. Moreover it is plain that the appellant was well able to deal with the factual merits of the internal flight issue when it came to the Upper Tribunal. Paragraphs 10 to 15 of his skeleton before the Upper Tribunal canvassed that issue and paragraph 26 of the Deputy Judge's determination shows that it was amply and properly gone into on the appellant's behalf. In these circumstances there is nothing in the Rule 24 point.

Lest there be any doubt, before leaving internal flight I should make it entirely clear that in my judgment there is no jurisdiction issue in this case. None of Mr Chelvan's submissions, with respect, comes anywhere close to constituting a sound argument that either the FTT or the Upper Tribunal lacked jurisdiction to deal with the internal flight issue.

I would add this before turning to the remaining grounds, which address factual findings below. The public interest is engaged in this case as in all asylum cases. In such cases there are two aspects to the public interest: first there is a public interest in the fulfilment by the United Kingdom of its obligation under municipal and international law to afford protection to genuine refugees. Secondly there is also a public interest in the denial of such protection to those who are not substantially entitled to it. That interest will be affronted by the grant of asylum on technical grounds to a person who, upon an examination of the merits, had no proper claim to it.

As I have indicated, there are some further arguments on the facts. First, it is said that there is evidence not considered by the Upper Tribunal which showed that Colombo would not offer a safe alternative relocation. I greatly doubt, with respect, whether Mummery LJ would have granted permission to appeal had this ground stood alone. However, he indicated expressly that he would not limit the grant of permission and so it seems to me that this court should deal with this part of the case, however shortly.

The Upper Tribunal took fully into account, as it seems to me, the country guidance decision in TK (Sri Lanka) [2009] UKAIT 00049. The deputy judge expressly agreed with the FTT that the scar on the appellant's forehead, to which his counsel had attached much weight, "could have been caused by anything " At paragraph 45 in the Upper Tribunal the deputy judge said this:

The appellant says that the Upper Tribunal did not go through the applicable risk factors one by one and in the circumstances was bound to conclude that there would be a risk on his being returned to Colombo. It is also said there was evidence about screening procedures at checkpoints at Colombo.

I have to say that in my judgment there was no error of law in the Upper Tribunal's approach to the facts. I do not accept that the Upper Tribunal failed to have proper regard to TK, which as I have already said the deputy judge took fully into account.

Mr Chelvan has some individual points about his client's asylum interview. The fact is that this appellant gave evidence before the FTT and was disbelieved, for reasons clearly given in that Tribunal. There is nothing in this part of the case.

For all these reasons I would dismiss the appeal.

I agree.

The two decisions of this court in DK (Serbia) v SSHD [2007] EWCA Civ 1321 (paragraph 25) and P and M v SSHD [2005] Imm. AR 84 (paragraph 34) are both contrary to Mr Chelvan's submission that internal relocation cannot be raised in a Tribunal unless referred to in the refusal letter. On analysis, for the reasons my Lord has given, paragraph 12 of the judgment of Sedley LJ in Daoud v SSHD [2005] EWCA Civ 755 does not support the proposition either.

The basic principle is that the appellant must have fair notice of the points in issue. If no adequate notice is given then he may be taken by surprise. That may, depending on the facts, amount to a procedural irregularity causing injustice within the meaning of CPR Part 52.11(3)(b). However, in the present case, for the reasons that my Lord has given, no substantial injustice was caused. I too would dismiss the appeal.