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

LORD JUSTICE JACKSON: This is a renewed application for permission to appeal to the Court of Appeal. The facts giving rise to this application are as follows. The applicant is a citizen of Sri Lanka, born on Christmas day in 1980, and now aged 34.

She arrived in the United Kingdom on a forged Canadian passport in November 2006. She applied for asylum. The basis of her claim is that she is a Tamil from the north of Sri Lanka, she has been ill-treated while she was in Sri Lanka, she has been arrested and detained by the police, she faces a persecution in the event of return to Sri Lanka.

The Secretary of State refused the claim for asylum but granted to the applicant indefinite leave to remain. The applicant appealed to the First-tier Tribunal on the grounds that although she has indefinite leave to remain in this country, she ought also to have refugee status.

First-tier Tribunal Judge Swaniker noted that the applicant was a Tamil, who had been arrested by the police in late 2006, as part of a round up. She had been released soon after her arrest. The First-tier Tribunal judge found as a fact that the applicant had not been involved with the LTTE and she was of no interest to the authorities.

The judge held that the applicant was not at risk of persecution in the event of a return to Sri Lanka by reason of association with the LTTE. The First-tier Tribunal judge went on to hold that the applicant was not at risk in the event of return by reason of her status as a lone female. He noted that the applicant had connections in Sri Lanka, including a family member who was looking after the applicant's daughter in the north of Sri Lanka.

The applicant appealed to the Upper Tribunal on the basis that the First-tier Tribunal had fallen into error in numerous respects. The Upper Tribunal dismissed the appeal on the basis that there had been no error of law by the First-tier Tribunal.

The applicant now applies for leave for permission to appeal to the Court of Appeal. That application was refused on the papers by Floyd LJ, on the basis that there was no error of law in the decision of the First-tier Tribunal, and the Upper Tribunal was therefore correct to uphold the First-tier Tribunal decision.

Today there is a renewed application orally made by Miss Claire Physsas on behalf of the applicant for permission to appeal to the Court of Appeal. Miss Physsas submits that the applicant is someone who has been subjected to sexual violence when she was in Sri Lanka and this is not properly dealt with by the First-tier Tribunal judge in his decision.

Miss Physsas has concentrated all of her submissions, for understandable reasons, upon the first instance decision within the tribunal system. Miss Physsas relies upon paragraph 67 of the applicant's witness statement in which she describes the circumstances she found herself in when she he woke up in detention.

The applicant believes that she had been sexually assaulted, but she has no specific recollection of it and cannot say for certain whether or not she has been sexually assaulted.

Miss Physsas tried to persuade me that the judge had made a finding to the effect that the applicant was a victim of sexual violence. When I invited her to direct me to any paragraph in the First-tier Tribunal decision which contained such a finding, Miss Physsas was unable to do so.

Miss Physsas submitted that there are parallels between this case and PP (Sri Lanka) v Secretary of State for the Home Department [2014] EWCA Civ 1828, and she relies extensively on the PP decision.

I do not find that argument persuasive. In PP, the applicant was someone who had been subject to sexual violence and there was an express finding that she had been raped when in custody. She became pregnant as a result of the rape. She came to the United Kingdom where she underwent a termination of pregnancy.

The background facts in PP are very different from the present case, and that needs to be borne in mind when considering Miss Physsas' submissions.

Miss Physsas draws attention to paragraph 15 of the First-tier Tribunal decision. In that paragraph, the First-tier Tribunal judge accepts that applicant was arrested and detained as part of a round-up and the judge goes on to find that the applicant was released and was not under suspicion.

He goes on, a little later, to find that the applicant was not put on a stop or a watch list. He gives a number of reasons for that including the fact that the applicant was able to speak Singhalese and she had been married to a Singhalese policeman.

Miss Physsas submits that the applicant belongs to a particular social group, namely, a lone vulnerable Tamil woman, who would be at risk (by virtue of her membership of that social group) in the north of Sri Lanka, even if she is not believed to be an LTTE supporter.

In support of that submission, Miss Physsas relies upon the decision of Shah & Islam v SSHD [1999] UKHL 20. In particular, Miss Physsas draws attention to the two-fold test applied by the House of Lords on the bottom of page 5 of the transcript. It is unfortunate that we have a transcript, rather than a proper report of the case.

The two issues identified there are:

Miss Physsas submits that the judge did not properly apply that test in the circumstances of this case. The judge, says Miss Physsas, did not properly consider the position of Tamil women in the north of Sri Lanka.

Miss Physsas draws my attention to paragraph 21 of the First-tier Tribunal decision. In that paragraph, the judge does actually consider the position of lone Tamil women in the north of Sri Lanka in some detail. He notes that because of the war sadly there are many households there where the head of the household is a single woman. The applicant would not be ostracised, or anomalous, or anything out of the ordinary if she returns and lives with her son (born in this country) and her daughter (born in Sri Lanka) in the north of Sri Lanka.

The judge goes on to note in paragraph 24 of his decision that the applicant has a number of relatives and contacts in Sri Lanka so she would be able to find some support in the event of return to her home country. That is self-evidently correct. The applicant's daughter has at all times remained living in Sri Lanka. Miss Physsas tells me that the applicant's daughter is looked after by her maternal aunt, who is the applicant's brother's wife.

Clearly there is a network of family support available in Sri Lanka, even if it is not practicable for the applicant physically to live in the same house as other family members. The First-tier Tribunal judge was quite correct to take that matter into consideration.

Miss Physsas, warming to her theme, takes me to paragraph 32 of the decision in PP (supra). She notes that in that paragraph the Court of Appeal criticised the Upper Tribunal for making no proper evaluation of the risk attaching to the fact that the appellant in that case was a vulnerable lone Tamil woman.

The Court of Appeal went on in paragraph 34 not to say that the appellant necessary would qualify, but that she was entitled to more in-depth reasoning and enquiry than she had received in the tribunals in that case.

It seems to me that in the present case the First-tier Tribunal judge has provided in-depth reasoning and has undertaken the requisite enquiry in order to come to the decisions at which she arrives.

Miss Physsas then goes back to paragraph 17 of the First-tier Tribunal decision. She submits that the findings of fact in that paragraph are not entirely in line with the expert report of Dr Chris Smith.

The answer to that is that the judge has heard all the evidence in this case and has made her findings of fact which in some cases coincide with, and in other cases depart from, the expert report of Dr Chris Smith. It is not possible for this court to step in and remake decisions of primary fact which have been made by the judge below.

It seems to me that the First-tier Tribunal judge was quite entitled to come to the conclusion that the applicant was not of interest to the authorities and that she would not have her name on any stop and watch list.

Miss Physsas then submits that the judge did not consider all the evidence and apply the Country Guidance in relation to Sri Lanka properly. I simply do not accept that argument. It seems to me that the judge has done precisely that. Miss Physsas submits that in other cases there has been a perceived involvement with the LTTE. That is true, but there is no perceived involvement with the LTTE in this case.

I do not think that there are arguably any errors of law in the decision of the First-tier Tribunal. Accordingly, I do not think it is arguable that the Upper Tribunal fell into error in upholding the decision of the First-tier Tribunal.

If I were to grant permission to appeal in this case, the appeal would undoubtedly fail. The applicant would face substantial liability for adverse costs and the grant of permission would be of no benefit to her. In the result, therefore, I refuse the application for permission.

Thank you very much.