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

LORD JUSTICE LLOYD JONES:

This is a renewed application by J K for permission to appeal to the Court of Appeal against the decision of the Upper Tribunal, Immigration and Asylum Chamber, delivered on 21 August 2014 dismissing his appeal against a decision of the First Tier Tribunal dismissing an appeal against the Secretary of State.

The applicant is a citizen of Sri Lanka, who arrived in the United Kingdom in or about September 2012. He immediately made an application for asylum, and on 18 October 2012 the Secretary of State responded to a decision refusing that claim. He appealed that refusal and his appeal initially came before First-tier Tribunal Judge Williams who in a determination dismissed the claim. There were legal errors in that determination and as a result the decision had to be set aside and remade. The matter was remitted to the First-tier Tribunal.

On 21 November 2013, the matter came before First-tier Tribunal Judge Molloy and following an adjournment, he, in a determination, dismissed the appellant's appeal. Permission to appeal was refused initially then granted on a renewed application before the Upper Tribunal. That came before Upper Tribunal Judge Roberts who in a determination on 21 August 2014, dismissed the appeal.

Permission to appeal to this court has been refused by Senior Immigration Judge Chalkley and Rafferty LJ on the papers.

The applicant claims asylum on grounds of his Tamil ethnicity and his past involvement with the LTTE. He claims that most of his relatives are or were involved with the LTTE and that his younger sister died fighting for them.

The appellant's claim is that he and his brother, J, joined the LTTE following the death of their sister. He claimed to have been arrested six times in total by the police from 2005 onwards.

The First-tier Tribunal judge accepted that he had been arrested on one of those occasions only. However, he also made a finding that after the cessation of the hostilities the applicant had been arrested on another occasion by the authorities shortly before he left the country, and that he had been released only on the payment of a bribe.

In the grounds of appeal which were drafted by Miss Victoria Lawton of counsel four grounds are advanced. Miss Lawton is no longer representing J K. He has today been represented by Mr Zainul Jafferji. I am grateful to him for his submissions. Mr Jafferji's approach has not coincided exactly with the grounds as drafted by Miss Lawton.

I will, however, refer to those grounds. In Ground 1, it is said that the Upper Tier Tribunal failed to determine all of the issues raised in the complaint of procedural unfairness by the First-tier Tribunal. The Upper Tier Tribunal did deal with the question of whether the applicant was suffering from an illness or a condition which affected his ability give evidence. The Upper Tier Tribunal dismissed the appeal on that basis correctly in my view. That point is not raised on this further application.

The Upper Tier Tribunal also dealt with the point which was taken in relation to a photograph. I will return to that, that is now Ground 2 before me. In addition to that, it is said that the First-tier Tribunal acted unfairly in dealing with points in the determination which the Tribunal itself had not put to the applicant.

A number of points were mentioned in that regard. For example, the appellant's mother was named differently in his screening interview. The question was raised by the judge in his determination as to why the sister was named as a nursery teacher when it was said that she was 16 at her death, and was said to have been with the LTTE for a substantial period before that.

The judge asked himself in the course of his determination about the method of her death. He asked himself why the applicant had not called his brothers or his mother to give evidence. He referred to a conflict of evidence in relation to the alleged suicide of another sister. Here the applicant relies on Secretary of State For the Home Department v Maheshwaran [2002] EWCA Civ 173.

It is clear that there can be circumstances in which a failure to put a notice of an issue can be unfair.

However, I am here satisfied that there was no unfairness and the judge was evaluating the evidence with which he had been presented. He was entitled to weigh its strengths and its weaknesses and he was not bound to draw each of these letters to the attention of the applicant. As a result, notwithstanding the fact that the Upper Tier Tribunal did not deal with this matter specifically, I am satisfied that there is no substance in Ground 1.

Ground 2 relates to the observations that the judge made in relation to a photograph which was produced at the hearing which it was said showed the applicant's sister in the LTTE uniform carrying firearms. A judge had mislaid the original photograph during the course of the hearing and that was proceeded by a reference to a copy. He later found the original and referred to the original photograph in the course of his determination.

There is no substance in the criticism which is made of the judge's observations. He was clearly entitled to refer to that in the course of his determination and in fact Mr Jafferji has not pursued this ground before me today.

Ground 3 relates to the activities of the applicant's brother, who is said to have been a member of the crew of the Ocean Lady which was alleged to be an LTTE ship which had smuggled a number of individuals, asylum seekers, into Canada.

Here it is asserted that the judge in the First-tier Tribunal erred in rejecting an interview with an expert on the basis that there was no evidence of his expertise. In fact, the expert in question is someone who had provided written expert evidence in GJ (post-civil war: returnees) Sri Lanka CG (Rev 1) [2013] UKUT 319 (IAC).

The Upper Tier Tribunal Judge rejected the criticism of the judge's determination. He considered that the judge may have been in error in relation to the expertise of Professor Gunaratna, but nevertheless, the judge had taken into account the contents of the report and currently analysed the evidence contained within it; and had come to the conclusion that after looking at all the evidence concerning the Ocean Lady and the applicant's brother, he could not be satisfied that the applicant's brother was involved "up to his neck in it" as claimed by the applicant.

The judge doubted that what he been told about the applicant's brother and his activities on the Ocean Lady in Canada were credible. I consider that this is not an arguable ground of appeal.

Today, before me, Mr Jafferji has sought to advance a further ground in relation to paragraphs 375 to 378 of the determination of the First-tier Tribunal. This relates to the judge's rejection of the evidence relating to five of the six alleged arrests. It is submitted by Mr Jafferji that there was no proper assessment of risk. However, this is a entirely new ground, it has not previously been advanced and ultimately Mr Jafferji accepted that it cannot now properly be advanced at this late stage.

Ground 4 is that the assessment of risk on return was defective and that the First-tier Tribunal Judge misapplied the criteria in GJ (post-civil war: returnees) Sri Lanka(supra). Here Mr Jafferji has persuaded me by reference to the decision of this court in MM (Sri Lanka) v Secretary of State for the Home Department [2014] EWCA Civ 36 that there is an arguable case that the judge in the First-tier Tribunal erred in his assessment of a risk and in particular failed to apply the criteria laid down in GJ (post-civil war: returnees) Sri Lanka; in particular, in relation to the significance of securing release from custody by the payment of a bribe at paragraph 275 of GJ (post-civil war: returnees) Sri Lanka.

A particular concern is the failure of the First-tier Tribunal judge to take account of his finding at paragraph 404 of the determination that the appellant had been forced to pay a bribe in order that he would not be arrested by the army in August 2012.

In all the circumstances, I am satisfied that it was arguable that there was, here, a failure to apply the country guidance and a failure to take account of the factors in the applicant's favour.

This would of course be as a second appeal. I am satisfied that Ground 4 does satisfy the criteria for a second appeal, in that there is compelling reason for the court to hear this appeal having regard to the consequences for the applicant and the fact that there is here a strongly arguable case there has been an error of law.

Accordingly, I grant permission to appeal on Ground 4 only. I refuse permission to appeal on the other grounds.

I will say that this is suitable to be heard by a three member court, but that one members of the court may be a High Judge.