MR (Sri Lanka) v Secretary of State for the Home Deparment

LORD JUSTICE DAVID RICHARDS: This is a renewed oral application for permission to appeal against a decision dated 17th April 2015 of the Upper Tribunal Immigration and Asylum Chamber (Deputy Upper Tribunal Judge Woodcraft). By that decision the Upper Tribunal dismissed the appeal of MR against the decision dated 1st September 2014 of the First-tier Tribunal which dismissed his appeal against the decision to remove him and to refuse to grant asylum.

MR, who was born in 1989, was granted entry clearance as a student on 24th December 2010, such clearance to be valid until October 2014. He completed only one term of the college where he enrolled and as a result his leave to remain was curtailed in 2012.

In January 2014 he applied for asylum on the grounds that he had been a supporter of the Tamil separatist group ("LTTE") since March 2005. He said he had been arrested by the Sri Lankan task force and detained for five days and ill treated. He says he was twice subsequently detained by the Karuna group, which has links to the Sri Lankan government, and was ill treated during at least one of those periods of detention. He said, and it is now accepted, that one of his brothers was involved with the LTTE and had been arrested in 2011 for offences involving credit fraud and passing funds to the LTTE.

MR's account of the events relevant to his asylum claim was for the most part disbelieved by the First-tier Tribunal. He raised three grounds of appeal before the Upper Tribunal, all of which were rejected. His application for permission to appeal to this court centres essentially on one issue. In support of his allegation, rejected by the First-tier Tribunal, that he had been arrested by the Sri Lankan authorities in 2007 he relied before the First-tier Tribunal on a document which was said to be a letter dated 29th November 2013, from the office of the Superintendent of Police at Trincomalee. The letter states that MR was detained in 2007 and was released on condition that he should report to the police on every last Sunday of the month. It stated that MR had not signed in as required although it says that he had been informed over the telephone on several occasions that he should do so and that the police had gone to his house and searched for him.

The First-tier Tribunal dealt at some length with this letter and placed no reliance upon it for a number of reasons. One reason was that it was inconsistent with the account that MR had given to the immigration authorities in January 2014 that he had been released unconditionally following his arrest in 2007. It was submitted to the Upper Tribunal that the First-tier Tribunal had erred in law by failing to address the evidence of authenticity of the purported letter from the police provided by a letter from a Mr T Karikalan, a lawyer in Sri Lanka, to the effect that he had attended the police station in Trincomalee on 21st March 2014 and ascertained that what he describes as the record says that MR had indeed been arrested and detained and released on condition that he reported "upon request". The letter continued:

The Upper Tribunal dealt with this submission in paragraphs 23 to 27 of its decision. It found no error in the approach of the First-tier Tribunal by reason of the fact that it had not specifically dealt in terms with Mr Karikalan's letter.

The ground of appeal to this court is that both the Upper Tribunal and the First-tier Tribunal failed to have any proper regard to PJ (Sri Lanka) v Secretary of State [2014] EWCA Civ 1011, when considering the evidence provided in Mr Karikalan's letter. PJ was a case where two lawyers had independently obtained documents from a court in Sri Lanka and the Court of Appeal held that in those circumstances "a sufficient justification was required for the conclusion that the appellant does not have a well-founded fear of persecution."

The documents showed that PJ was suspected of direct involvement in LTTE terrorist activities and that he should be arrested immediately on his return to Sri Lanka. In the course of his judgment Fulford LJ stressed that in each case documents should not be viewed in isolation and that evidence needs to be considered in its entirety.

The particular facts and circumstance of PJ are a long way from the particular facts and circumstances of the present case. In my judgment, the Upper Tribunal dealt comprehensively with this ground of appeal and a further appeal has no real prospect of success. The First-tier Tribunal found MR's account to be implausible and untrue on a significant number of different grounds. The letter from Mr Karikalan was referred to by the First-tier Tribunal but not specifically in relation to the purported letter from the police. The alleged authentication provided by the letter from Mr Karikalan does not meet the problems posed by the alleged letters from the police for MR's case and, as the Upper Tribunal commented, the letter from Mr Karikalan raised more questions than it answered. Mr Karikalan refers to the record without producing a copy of it. He states that the record says that MR was released on condition to report upon request, not on the last Sunday of every month, as stated in the purported letter from the police. It is by no means clear what he meant when he confirmed that the letter was genuine according to the relevant authority's record and he refers to a letter dated 21st March 2014, not 29th November 2013. This, in my judgment, is a far cry from PJ where the two lawyers independently produced documents from a court file.

Mr Turner, today, has in addition to the points that I have referred to above, submitted that the fact that Mr Karikalan produced documents from a court file concerning a case involving MR's parents which are not challenged, and therefore that he produced some genuine documents from a court file, should at least have meant that the First-tier Tribunal engage with Mr Karikalan's authentication of the letter from the police.

I have no doubt that it would have been better if the First-tier Tribunal had addressed, although I think it could have done so briefly, the letter from Mr Karikalan. But like the Upper Tribunal I do not think it is seriously arguable that the failure to do so in the particular circumstances of this case renders that omission an error of law such as to undermine in any way the decision of the First-tier Tribunal.

Further, I do not consider that an appeal to this court would satisfy either limb of the second appeal's test. No important point of principle or practice arises. It is submitted in the skeleton argument for MR that there is a compelling reason for a second appeal because of the consequences of wrongly returning an asylum seeker to his home country. That may be the case where there are strong grounds for considering that the First-tier Tribunal has gone wrong in law but it cannot provide by itself a ground for a second appeal. Otherwise second appeals would always be allowed in asylum cases, which is clearly not the position.

For these reasons I refuse permission to appeal.