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

This is an application for permission to appeal brought by an applicant who has been seeking asylum in this jurisdiction since April 2008. The determination which is the target of the application in fact was that of Upper Tribunal Judge Waumsley, given on 19 June 2012, nearly three years ago. It has taken a great deal of time for this application to be considered at an oral hearing, largely because of an agreed need to wait for further country guidance to be given with respect to Sri Lanka, the country from whom the applicant originally comes. That guidance has now been given by the decision of this court in the case of MP & NT [2014] EWCA Civ. 829.

At an earlier stage, Davis LJ refused permission to appeal on paper on 26 February 2013 on the basis that the position appealed against was within its own context in line with the country guidance and otherwise unremarkable. Today, my Lady and I have heard a renewed application for permission made by Mr Alasdair Mackenzie who appears for the applicant and that application, by directions by this court, was undertaken at an on notice hearing to the Home Secretary and we have benefited from the submissions of Ms Kerry Bretherton in response.

In short terms, the history of this matter can be set out in the compass of one paragraph. The applicant is a young man who originates from the Tamil area of Sri Lanka. The facts upon which the Tribunal process has been based for some hearings now are accepted to be based on his own account. He explains how he was compelled to undertake basic training work with LTTE, the Tamil Tigers, in the earlier part of 2007. He tried to avoid being drawn further into their operation but was mistreated and forced for a period to serve in a supportive capacity in a conflict zone but, at the end of 2007, he managed to escape and get to Colombo where his mother lived. However, he was required to register with the authorities in Colombo on arrival, that triggered notice to the authorities of his presence, he was arrested, interrogated and tortured.

The summary of the applicant’s evidence at an earlier Tribunal hearing was accepted as the factual basis and the key part reads as follows:

“His mother secured his release on payment of a large bribe. The Appellant was not charged with any offence but was required to report. After his release he was approached separately by EPDP and Pillayan group members [pro-government forces] seeking his assistance, which he declined. The Appellant left Sri Lanka with the help of an agent and claimed asylum in the United Kingdom on 28 April 2008, 3 days after his arrival. His mother and one of his brothers were questioned by the police in Colombo afterwards but were released without charge.”

At an earlier Tribunal hearing in 2010, designated Immigration Judge Manuel accepted that evidence on the basis that I have just set out.

I have made reference to earlier proceedings and it is not necessary in this short judgment to set them out, but this is a case which has been up and down the Tribunal process and, indeed, on application to this court at earlier stages. The process undertaken by Upper Tribunal Judge Waumsley in June 2012 was to undertake, again, the risk assessment to the applicant if he were required to return to Sri Lanka and that assessment had to be undertaken on the factual basis that I have described. The judge therefore did not hear any fresh oral evidence, the case was conducted entirely on the basis of what seemed to have been very full submissions made to the Tribunal and the Tribunal Judge drew his conclusions. Before doing so, he made reference to the key authorities, in particular, the then extant country guidance case, TK (Tamils-LP) [2009] UK AIT 0049. It is not necessary for me to rehearse the detail of that country guidance in this judgment; what the lower judge did was to summarise it by apparently quoting from the headnote. The judge then goes on to apply that to the facts and again, I am not going to labour this judgment by quoting extensively from the lower judgment but at paragraph 21, the judge summarises the factors which he considers do go some way to establish a potential risk should the applicant be required to return to Sri Lanka. That includes baseline facts that he is of Tamil ethnicity, that he did have some, albeit low level, involvement with the Tamil Tigers and it sets out the history of his involvement with the authorities. That paragraph 21 however does not include any reference at all to the fact that his release from custody was secured by a provision of a “large bribe” by his mother. Furthermore, that paragraph of risk factors does not include reference to the fact that his mother and brother were approached by the authorities on one occasion after he had fled from the country.

At the end of the judge’s decision is the following paragraph, paragraph 22. There he refers to the country guidance and states his conclusion which is that he is not persuaded that the appellant has discharged the burden of showing to the requisite standard, albeit a lower standard applicable to asylum appeals, that he would be at real risk of persecution on return to Sri Lanka. The judge then goes on to set out his reasons:

“I have a number of reasons for arriving at that conclusion. However, my principal reason is that although it has been accepted that the appellant was detained by the police in Colombo and subjected to serious ill-treatment during his subsequent interrogation when he went to register with them as required by law in 2008, nevertheless by his own account he was released without charge, subject only to a reporting condition in the usual terms. That release is cogent evidence that the appellant was of no further adverse interest to the authorities, otherwise he would not have been released at a time when they had him in their power. It has been accepted that the police subsequently questioned his mother and one of his brothers when the appellant failed to report in accordance with his reporting conditions, but there is no evidence that the authorities have shown any further interest in him at any time subsequently. Some four years have now elapsed since the appellant’s release without charge.”

It is plain, partly because of the emphasis upon the word “cogent” and partly because of the deployment of the earlier phrase “my principal reason” that the judge regarded the fact that this appellant had been released without charge, subject only to a reporting condition, indicated that he would be unlikely to be of interest to the authorities. That basic conclusion was emphasised in the judge’s mind by the passage of four years which he notes had elapsed.

Mr Mackenzie’s case before this case is commendably short and clear. He points to the fact that at no stage, either in the preceding paragraph 21 to which I have made reference or this key paragraph 22, is the bribe mentioned. Mr Mackenzie submits that that bribe would seem to be the reason why this individual was released from custody and it therefore cannot be a given that he, in reality, represents someone who is not of interest to the authorities even now. Equally, Mr Mackenzie points to the fact that this was not a clear release from custody with a line being drawn. The applicant was required to report to the police on a weekly basis which of itself indicates some continuing interest and he submits that the judge was therefore wrong to minimise the reporting condition.

Finally, it is the case that, rather than reporting to police, the applicant fled the country illegally within the matter of a few months from his incarceration. Although that factor is mentioned in paragraph 21, it is not repeated in the key paragraph 22. Mr Mackenzie ties those submissions in with the country guidance cases, he notes that the reference to a bribe, or some other way in which detention comes to an end, is not a point which is in the headnote of the case of Re TK but he points to paragraph 174 of the judgment in Re TK which in turn adopts the European Court of Human Rights’ judgment in a case of NA which does descend to more detail in evaluating just why someone’s detention has come to an end. The fact that you have been detained and then released is obviously not a trump card. The key focus should be on the circumstances of release and those need to come into the all-important evaluation of whether in those circumstances there is a continuing risk of re-detention if returned to Sri Lanka.

In opposition to the application, Ms Bretherton submits that the emphasis that is now put upon the bribe was not seemingly the case before the Tribunal Judge. It does not feature in the summary of what were apparently full submissions made on behalf of the applicant before the Tribunal Judge and it is a matter that is given prominence only now. That may or may not be the case. To my eyes coming to this case afresh, the existence of the bribe certainly is a significant and important factor. The fact is that the judge did not take it into account, or did not say he was taking it into account, when evaluating his “principal reason” for deciding against the applicant and setting out the “cogent” evidence upon which he relied. That would seem to me, certainly at permission to appeal stage, to be an important flaw in the judge’s reasoning and it is certainly in my mind sufficient to establish a reasonable prospect of success on appeal when that factor is tied into the extant country guidance. I also accept, for the purposes of this hearing, that Mr Mackenzie makes good his submission that the sophistication given to the facts of this case by the introduction of the large bribe is one that is relevant in line with the extant country guidance as it was then and it should have been evaluated by the judge. It seems to me that although Ms Bretherton did her best to meet the argument that the Home Secretary now faces in this case, she was required to accept that that was really the only way she could put the case, namely to say, well, it was an important feature before the judge and the judge had all the factors in mind.

Given, in humanitarian terms, the importance of the decision that still has to be taken about this applicant’s position here and given the clarity with which I see the point now made by Mr Mackenzie, and despite the fact that this is a second appeal and therefore, the higher hurdle applies, I am without hesitation in concluding that this is a case for which permission to appeal should be granted and that is my decision.

I agree.