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

LORD JUSTICE RICHARDS: The appellant is a citizen of Sri Lanka who came to the United Kingdom on a student visa in September 2009 and claimed asylum in July 2011. His claim was refused by the Secretary of State. An appeal to the First-tier Tribunal was dismissed but that tribunal's determination was set aside by the Upper Tribunal for error of law. Upper Tribunal Judge Spencer held a fresh hearing and reached a determination dated 20 June 2012 by which the appeal was again dismissed. Permission to appeal to this court against that determination was granted by Toulson LJ on limited grounds. Mr Parminder Saini, who appears for the appellant, has since produced consolidated grounds of appeal containing the four substantive grounds on which permission was granted.

The Secretary of State, represented before us by Mr Jonathan Hall, has conceded that the appeal should be allowed on grounds one to three and the matter should be remitted to the Upper Tribunal for full reconsideration in the light of the new country guidance in GJ and Others (post civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) and he submits in those circumstances that the fourth ground is academic and that the court should not be drawn into considering it, especially because the matter was not argued before the tribunals below.

The appellant is not content with that course. Mr Saini seeks confirmation and guidance from this court in relation to the principles underlying grounds one to three notwithstanding the Secretary of State's concessions on them, and he submits that ground four involves an important point of principle and that there are good reasons in the public interest why the court should proceed to decide that ground now.

In my judgment there is little usefully to be said on grounds one to three in the light of the Secretary of State's concessions and it is not appropriate for this court to entertain substantive argument on ground four, any decision or observations on which would necessarily be obiter. Accordingly I take the view that this appeal should be disposed of in the manner proposed by the Secretary of State. Even that approach, however, does require some explanation of the factual background and of each of the grounds of appeal, to which matters I now turn.

The appellant's account in brief was that he had been responsible for the running of the family's rice mill in Gampola and had bought rice from people without knowing they were in the LTTE. He was arrested in April 2009, together with his father and brother, on suspicion of supporting the LTTE and was held at a police station overnight where his photograph was taken and he was made to sign a document written in Singhalese. He was then transferred to the TID office in Colombo where he was detained until mid June and was interrogated and tortured. His father, who had not been detained, secured his release by payment of a bribe but his fingerprints and photograph were taken and he was given a document telling him to sign on at Gampola police station once a week. His brother was also released in June.

He said that he complied with the reporting conditions until the last two weeks before his departure from Sri Lanka for the UK in September 2009. He left the country using his own passport.

His account was that from September 2009 to January 2011 the authorities had gone to his family home once every one or two weeks looking for him. On 31 March 2011 a summons was issued by the Magistrates' Court in Gampola ordering him to appear before the court on 5 May in relation to an offence of rendering assistance to the LTTE and harbouring terrorists. In May the police and army came to look for him but as he was not there they took his brother instead. On 9 May an arrest warrant was issued against him by the Magistrates' Court for failing to attend court. In August 2011 his brother died as a result of torture.

The Upper Tribunal judge made various adverse findings in relation to the appellant's credibility. He was prepared to assume without making a finding that the appellant had been arrested and detained while in Sri Lanka but he was not satisfied that the appellant had been truthful about his account of events since he left that country and he was not satisfied as to the authenticity of the documents upon which the appellant relied in order to demonstrate that he was being sought by the Sri Lankan authorities.

Ground one of the grounds of appeal relates to the judge's findings concerning security checks at Colombo airport on exiting Sri Lanka and information available to immigration officers at the exit terminal. Those findings related in part to the appellant's evidence that he had taken no interest in what the two officers who had examined his passport were doing. The judge found at paragraph 14 of the determination that the likely explanation for this was that the appellant was not concerned that the authorities might prevent him from leaving the airport because he appreciated that they had no interest in him. More important, however, is the finding at paragraph 15 that if the applicant had been suspected of being a terrorist it was almost inevitable that his details would have been recorded at the airport so that he would not have been able to depart from the airport as he claimed. Various arguments are advanced as to why it was a material error of law to find that the appellant would have been stopped at the airport if he had been of interest to the authorities and reliance is placed in addition on the new country guidance in GJ in support of those arguments.

The Secretary of State accepts that the Upper Tribunal judge made a material error of law in concluding that the appellant would not have been able to depart from the airport unnoticed if the Sri Lankan authorities had an interest in him. It is also accepted that exit procedures at the airport are the subject of detailed consideration in GJ, by reference to which it is said that the matter would have to be assessed on a remittal to the Upper Tribunal.

What remains in issue between the parties is a request by the appellant that this court should issue guidance confirming that (1) exit from Sri Lanka by the airport does not preclude that person still being of interest to the authorities, (2) those checking passports on exit are immigration officers who only have access to an immigration database, and (3) those immigration officers would only know of a person being wanted if they were on a paper-based watchlist or if their passport was impounded by a court or if there was a court-ordered arrest warrant issued against them.

I am satisfied that the request for such guidance to be given is misconceived. It suffices for the purposes of the appeal that, as is conceded, the Upper Tribunal judge made an error of law in concluding on the evidence before him that the appellant would not have been able to depart from airport unnoticed if the Sri Lankan authorities had no interest in him. The Upper Tribunal can consider on a rehearing of the case following remittal whether to attach significance to the appellant's exit from the country via the airport in the light of the country guidance in GJ and any other relevant evidence before it. We do not have the primary evidence before us and it is neither possible nor appropriate for us to make specific factual findings on these matters.

Ground two relates to the judge's finding at paragraph 17 that the consequence of the appellant's release having been secured by his father by bribery before he was taken to court was that there would be no official record remaining, if one ever existed, of his detention. It is submitted that there was no evidential basis for the finding and furthermore that the finding is now contradicted by evidence quoted by the tribunal in the case of GJ.

The Secretary of State accepts that the judge erred in concluding that any record of the appellant's detention would necessarily have been eradicated and accepts that this error was material to the decision at the time it was made. It is suggested that the issue may not be material on a rehearing in the light of the country guidance in GJ but that will obviously be a matter for the Upper Tribunal at the rehearing.

Here too the appellant requests the court to go further by giving guidance confirming that bribery-initiated releases are common and do not result in a record of detention being eradicated and in fact, it is said, result in absconder action being commenced which is relevant to a person's fact-specific risk on return to Sri Lanka and to the likelihood of featuring on a stop list.

Again I take the view that it is neither possible nor appropriate for us to make such findings. It is sufficient that on the evidence before him there was a material error of law by the Upper Tribunal judge on this issue. What specific findings should now be made will be a matter for the Upper Tribunal on a rehearing in the light of the prevailing country guidance and any other evidence before it.

Ground three is directed at the judge's finding at paragraph 19 that a very telling point against the authenticity of the court summons relied upon by the appellant was that it merely required the appellant to attend court "for suspected of rendering assistance to LTTE and harbouring terrorists" and made no mention of any provision of the Sri Lanka Prevention of Terrorism Act or Penal Code. It is submitted that there is no objective evidence that a court summons will necessarily mention the provision of the Act or Code under which a person is summonsed to attend court; the document simply orders that person to attend court on a specific date. It is further submitted that the judge's point about the absence of reference to the Act or Code had not been raised with the appellant at the hearing or at any time prior to the determination and that it ought to have been raised so as to give him an opportunity deal with it.

The Secretary of State concedes that there was a material error of law on the basis of the failure to draw the point to the attention of the appellant so that he could deal with it. At the same time the Secretary of State makes clear that she in no way concedes that the summons is authentic. She contends indeed that the judge's doubt as to the authenticity of the summons is unassailable but she accepts that this will be a matter for the Upper Tribunal at a rehearing.

That does not satisfy the appellant, who requests the court to confirm that the judge was in error in the light of the absence of any evidence concerning the mandatory content of the court summons and to confirm that findings which involve speculation in the absence of evidence demonstrate a lack of anxious scrutiny by the tribunal reviewing the evidence.

Again, I do not accept that this court should go further than to remit on the basis of the point conceded by the Secretary of State. Whether this point is taken before the Upper Tribunal at a rehearing remains to be seen. If it is taken it will have to be considered in the light of the evidence then available. Generalised observations by us about the difference between speculation and findings based on evidence will be of no help to anyone.

Ground four is headed "improper assessment of the appellant's documentary evidence, contravening his right to an effective remedy under article 13 ECHR pursuant to the matter of Singh v Belgium [2012] ECHR 362." Singh v Belgium is a decision of the Strasbourg court. It is submitted by reference to that decision that the Secretary of State is under a positive duty to investigate key documentary evidence pursuant to the duty to provide an effective remedy under article 13, that there was a failure to perform a careful and rigorous investigation of the appellant's documentation in it case and that the Upper Tribunal, by its erroneous treatment of that documentation, failed to remedy the Secretary of State's dealt. The documents specifically referred to by the appellant are the court summons, the arrest warrant and a letter from the appellant's advocate in Sri Lanka but it may be that the argument also covers the brother's death certificate to which the Secretary of State has referred.

The decision in Tanveer Ahmed [2002] UK IAT 00439 has long been accepted as an authoritative statement of the principles to be applied in determining the reliability of documents on which an appellant seeks to rely. It is the authority by reference to which the Upper Tribunal judge directed himself in the present case.

Mr Saini submits that Tanveer Ahmed has been superseded by what the Strasbourg court said in Singh v Belgium. The Upper Tribunal in other proceedings have taken a different view, holding in MJ (Singh v Belgium : Tanveer Ahmed unaffected) Afghanistan [2013] UKUT 0253 (IAC) that the conclusions of the court in Singh v Belgium neither justify nor require any departure from the guidance in Tanveer Ahmed. Mr Saini submits that MJ was wrongly decided. We are told that an application for permission to appeal was made in the case of MJ but was refused on the papers and was not renewed orally because the appellant in that case went to ground.

It seems to me that the issue that Mr Saini asks us to entertain under ground four is plainly academic. By reason of the material errors of law identified under grounds one to three the determination of Upper Tribunal Judge Spencer must be set aside and the matter remitted for a rehearing in any event.

Mr Hill in his written skeleton argument counsels caution in relation to our entertaining an academic appeal on this issue. He says first that the matter was not argued before the tribunal below so that for example no findings were made on how feasible or appropriate it would have been for the Secretary of State to obtain reliable information on the veracity of each of the documents produced, not least given the prohibition under paragraph 339IA(ii) of the Immigration Rules on tipping off alleged actors of persecution that an application has been made for asylum where it might give rise to further risks for the applicant or his family. Secondly he submits that this matter should go back to the Upper Tribunal for a rehearing without further delay, even the delay attendant on a possible reserved judgment on the appeal. Third, concern is expressed about the fact that there is no official English translation of the judgment in Singh v Belgium. Fourth, the point is made that since it is for national authorities collectively to ensure an effective remedy pursuant to article 13, it is important to see how the Upper Tribunal itself deals with the point before a decision is made on whether there has been a breach of article 13. I have mentioned already that the issue raised by ground four was not raised below.

Of those points it seems to me that only the first and fourth have any real force to them, but they have such force notwithstanding the arguments that Mr Saini has advanced against them. He has stressed that the grant of permission to appeal to this court on ground four indicates that the ground involves an important point of principle. He says that the article 13 issue which it raises is one which could affect many other asylum claimants. Moreover, he submits that unless the Court of Appeal decides the point now the Upper Tribunal's decision in relation to the documents relied upon by the appellant on a rehearing will be a foregone conclusion, and he suggests that there is a risk that permission to appeal might not be granted next time around given the second appeals test, with the consequence that the issue raised would simply not be heard.

As I say, I am not persuaded by Mr Saini's submissions. Standing back, I do not think that this court should venture to decide an issue of this kind which does not need to be decided for the purposes of the instant appeal and has not been the subject of any relevant factual or legal assessment in the tribunal below. I take the view that such an assessment would be of real value even though the tribunal would be bound in practice by the decision in Tanveer Ahmed, just as the tribunal in MJ, although bound by Tanveer Ahmed, was able to consider and comment upon the significance or otherwise of Singh v Belgium. It is better for the issue to be considered as necessary by the Upper Tribunal at the rehearing in conjunction with any relevant factual matters than for it to be considered for the first time by this court as an academic and largely abstract legal issue. It is even possible that the Upper Tribunal on the rehearing will make findings of fact that will cause the issue to fall away as far as this appellant is concerned, but that is all for the future. I certainly do not accept the contention that the outcome before the Upper Tribunal is a foregone conclusion.

For those reasons I would go no further than to allow the appeal on grounds one to three and remit the case to the Upper Tribunal for a rehearing.

LORD JUSTICE PATTEN: I agree.

LADY JUSTICE GLOSTER: I agree.