PR (Sri Lanka), R (on the application of) v Secretary of State for the Home Department

Introduction

This is an appeal from the order of 28 July 2015 of the Upper Tribunal (Immigration and Asylum Chamber) (Upper Tribunal Judge Warr) (“the UT”) whereby the UT refused the appellant’s renewed application for permission to apply for judicial review of a decision of the respondent of 10 June 2014. By that decision the respondent had refused to treat an application by the appellant for asylum/human rights protection as a “fresh claim” for the purposes of paragraph 353 of the Immigration Rules (“Para. 353”). Permission to appeal to this court was refused by the UT by the same order of 28 July 2015 but was granted by Arden LJ, upon application to this court, by her order of 1 March 2016.

As is well known Para. 353 provides as follows:

Factual and Procedural Background

The case has a long history.

The appellant is a national of Sri Lanka and was born on 27 April 1973. He has a wife and two children in Sri Lanka. The appellant entered the UK clandestinely on 30 January 2010 and claimed asylum on 1 February 2010. On the same day he was issued with notice of liability to removal as an illegal entrant. His asylum claim was based on his affiliations with the Liberation Tigers of Tamil Eelam (LTTE) and ill-treatment by the authorities in Sri Lanka.

On the appellant’s account, he joined the LTTE in May 1998, reaching the rank of Lieutenant before leaving in May 2002. In June 2005 he was detained by security forces on suspicion of involvement with an LTTE bombing. He said he was released upon payment of a bribe. He attempted to seek asylum in Germany in 2005 but was sent back from there to Sri Lanka. He said that he was forced to re-enlist with the LTTE in August 2006 culminating in his being sent to an internment camp in 2009, following a defeat of the LTTE by the Sri Lankan Army. He was arrested from the camp by the police on 15 September 2009. Whilst in detention he described being tortured. On 3 January 2010 the appellant claimed to have been released following his uncle having paid a bribe. He left Sri Lanka for India, before coming to the UK to claim asylum.

The Respondent refused the asylum claim on 26 March 2010. The appellant appealed this decision on 14 April 2010. The appeal was dismissed by the FTT. The appellant appealed from this decision to the UT.

Designated Immigration Judge Wilson heard the appeal on 22 September 2010 and in a decision of 30 September 2010, promulgated on 13 October 2010, he dismissed the appellant’s appeal. He accepted that the appellant had been ill-treated and detained in Sri Lanka, having been a member of the LTTE for a considerable period of time. However, Judge Wilson did not find that the appellant had been truthful about the circumstances in which he left Sri Lanka and his present circumstances.

The UT refused permission to appeal to this court.

His application for permission to appeal to this Court was again refused by Stanley Burton LJ on 25 January 2011, on a consideration of the papers, and was further refused after an oral hearing (by Lord Neuberger MR, Sir Anthony May P and Carnwath LJ) on 11 August 2011. The appellant then applied to the European Court of Human Rights on 10 February 2012, arguing that his removal would be contrary to Article 3 of the European Court on Human Rights. That application was struck out in April 2014.

On 22 April 2014 the appellant made the further submissions to the Respondent which are now in issue. He asked for the application to be treated as a fresh claim for the purposes of Para 353, relying on the country guidance given in the case of GJ and Others (Post-Civil War: Returnees) [2013] UKUT 319 (IAC) and a medical report from a psychiatrist indicating he was suffering from mental health problems. He argued that he was at risk of persecution if returned to Sri Lanka and that his return would breach Article 3, based on a risk of suicide.

The Respondent refused to treat the appellant as making a fresh claim, in a letter dated 10 June 2014. These proceedings were issued by the appellant on 9 September 2014. Permission to proceed with the claim was refused by UT Judge Craig. The appellant renewed his application and the matter was heard by UT Judge Warr on 15 July 2015 who also refused permission.

Decision of Upper Tribunal Judge Wilson

It is necessary to say a little more about the 2010 decision of UTJ Wilson for the purposes of considering the basis upon which the respondent rejected the appellant’s April 2014 submissions as constituting a “fresh claim” within Para. 353.

The judge accepted that the appellant had been a member of the LTTE and had been detained and ill-treated. He accepted the findings of the appellant’s medical witness (Dr Martin) as to scarring on the appellant’s body and the consistency of the wounds with the torture alleged by the appellant. It was noted by the judge that the doctor did not say what the length of the period of torture might have been and that there was no evidence as to whether it had continued up to the date of the appellant’s release. The judge considered this to be a relevant factor in the assessment of whether the appellant would be of continuing interest to the Sri Lankan authorities on return. The judge accepted that the appellant had signed a confession as to his membership of the LTTE. The judge reached the somewhat qualified conclusion that,

The judge considered that the appellant would not have been released, even on payment of a bribe, if the authorities had a continuing interest in him and that records would not disclose any such continuing interest on return. The appellant had not been involved at a high level in the LTTE or engaged in fund raising. He concluded that there was therefore no relevant risk to the appellant if he were to be returned to Sri Lanka.

The Appellant’s new submissions: April 2014

The submissions presented to the respondent by the appellant’s solicitors on 22 April 2014 (in the same month as the demise of his application to the European Court of Human Rights) advanced two overarching elements of the new claim: first, the then new “Country Guidance” case decided by the Upper Tribunal in GJ; and secondly, the report on the appellant from the psychiatrist, Dr Saleh Dhumad.

On the first point, the solicitors’ letter relied upon two passages from the UT’s lengthy judgment in the GJ case as follows, quoting the letter:

On the second point, the solicitors presented Dr Dhumad’s report of 8 March 2014. The doctor said that the appellant’s presentation was “consistent with a diagnosis of Severe Depressive Episode, with somatic symptoms (lack of sleep, energy, poor appetite and pain)”. The presentation was also said to be “consistent with a diagnosis of Post-Traumatic Stress Disorder…” with anxiety, ongoing fear, nightmares and flashbacks. This was “consistent” with “severe psychological reaction to extreme traumatic events, caused by the experience of torture and maintained by ongoing fear of deportation”. In the doctor’s opinion there was a risk of suicide on return to Sri Lanka; the report said this:

The Respondent’s Decision

These points were addressed by the respondent in a 13-page “Consideration of Submissions” document.

The respondent noted the earlier findings and decision of UTJ Wilson. She addressed the main features of the decision in the GJ case, noting that the current categories of persons in real risk of persecution were:

Addressing the possible material categories in this case, the respondent said:

Your client has never claimed to be, or has shown any evidence to suggest that he is, or has ever been involved in any form of Journalism (whether in print or other media). …

Your client has not claimed to, or has ever shown any evidence that he is, or ever has been the subject of a court order, has ever had an arrest warrant issued against him or that he was a political activist in Sri Lanka and since his arrival in the UK. With regards to this, IJ Wilson has noted the following in his determination paragraph 31 states that

In light of this, your client will not be on the computerised stop list, and will not be stopped at the airport and handed over to the appropriate Sri Lankan authorities, in pursuance of such order or warrant as a result.”

It was noted further that the judge had assessed the alleged risk to the appellant in the light of his confession to LTTE membership and the payment of a bribe to secure release. The respondent quoted this passage from the earlier permission to appeal decision of this court of August 2011, referred to above, assessing in summary the court’s findings on that application:

The respondent’s decision then gave detailed attention to a lengthy report of December 2012 concerning the procedures expected to be faced at Colombo airport by those returning compulsorily to Sri Lanka from this country. Having considered that material the respondent stated that there was nothing to suggest that the appellant would be detained on arrival at the airport.

Consideration was given to possible questions under Article 8 of the ECHR, which do not now arise in these proceedings. Attention was then turned to the report of Dr Dhumad. Certain passages were set out. The respondent stated,

The respondent then referred to evidence as to the availability of mental health treatment services in Sri Lanka. It was noted that the appellant had made no reference to suicidal impulses in 2009, or indeed an attempted suicide, as referred to by Dr Dhumad in his report, either in his asylum claim or in the hearings before either of the Immigration Judges in 2010. The decision quoted extensively from the judgment of Sedley LJ in Y & anor. (Sri Lanka) v SSHD [2009] EWCA Civ 362. It was concluded that this appellant would be able to obtain medical treatment on return.

Overall, the respondent’s decision was to uphold the previous decision on the asylum and human rights claims and the appeal decisions of 2010. The respondent said that the submissions made did not amount to a fresh claim and that they (together with the previously considered material) did not create a realistic prospect of success before an immigration judge, applying the necessary anxious scrutiny to the case.

In these proceedings the appellant challenges the lawfulness of the respondent’s decision. The UT has held that he has no properly arguably case for judicial review.

The Appeal and my Conclusions

It is common ground that the respondent applied the correct test in law (WM (DRC) v SSHD [2006] EWCA Civ 1495), and that on any challenge to the decision the test for the court is whether the decision was flawed on traditional Wednesbury grounds (Associated Provincial Picture Houses Ltd. v Wednesbury Corp. [1948] 1 KB 223 and the cases leading to the decision in this court in TK v SSHD [2009] EWCA Civ 1550, as cited in the respondent’s skeleton argument, paragraphs 14 to 19).

On the appeal, Mr Mackenzie for the appellant raised two points in the written grounds of appeal. First, (“the Protection Ground”) it was argued that the respondent had failed to consider how the FTT on a future appeal would approach the persecution risk “in the light of the accepted facts in the [Appellant’s] case and the fresh country guidance in GJ…”. In this respect, it is said that the UT incorrectly approached the appellant’s case as if key facts in his account had been rejected in the earlier proceedings and in failing to take account of evidence given in GJ that a person released from custody by bribery would be at risk. Secondly, (“the Mental Health Ground”) the submission was made that the respondent “arguably reached a perverse view on the risk that the [Appellant] would commit suicide on return to Sri Lanka”.

The Protection Ground

Mr Mackenzie emphasised five “highlights” (my word, not his) in the factual findings of UTJ Wilson: 1) the appellant’s LTTE membership; 2) his detention; 3) the fact that he had been tortured; 4) his signing of a confession; 5) his release on payment of a bribe. The judge found nonetheless that the appellant would not be of interest to the Sri Lankan authorities, because he would not have been released, even on payment of a bribe if there was still material interest in him. Mr Mackenzie submitted that, having regard to the decision in GJ, an Immigration Judge now might decide that that finding was wrong and that the respondent’s failure to recognise that possibility was irrational.

I would note immediately that the respondent set out fully in her decision UTJ Wilson’s relevant findings and stated that the judge had assessed the risks to the appellant against those findings. There is no suggestion in the respondent’s decision that she was seeking to go back on the findings so made, although the judge’s comments on the appellant’s general credibility (or lack of it) were noted. It is also clear that UTJ Warr in the present proceedings also proceeded from the starting point of UTJ Wilson’s conclusions on these matters.

It was argued that, quite apart from the particular passages from the GJ case referred to in the appellant’s solicitors’ submissions to the respondent, the respondent should have had regard to certain additional features of the evidence in the GJ case which (it was said) had a bearing on the appellant’s case. It was said that such evidence, whether specifically relied upon by the Tribunal in its decision or not, should have been accepted and applied for the purposes of dealing with the appellant’s new submissions.

Reliance was placed upon the Asylum and Immigration Tribunal (AIT) decision in SI (Reported Cases as Evidence) Ethiopia [2007] UKAIT 00012. The judicial headnote to that case states:

This part of the headnote leads to the passages in paragraphs 23 to 26 of the decision in that case in which the AIT was addressing the status of adjudicators’ decisions (as opposed to AIT decisions) and of the evidence recited in them as evidence in later proceedings. It took issue with the statement by Keene LJ, at the end of paragraph 37 in RG, that,

For my part, I was troubled by Mr Mackenzie’s submission on this point, and indeed by the AIT’s decision in SI. I can see that a recital of evidence given in a previous “Country Guidance” case may, if uncontroversial, help in providing background to country conditions in a later case, but care must be taken not to go too far. As the AIT itself observed, facts are decided by the evidence in a particular case. One must be careful to distinguish between a Tribunal’s recital of the evidence that it has received and considered on the one hand and the evidence that it has accepted as accurate and reliable on the other. The difference may not always be apparent.

I am conscious that I am commenting upon the practice of a specialist Tribunal and I recognise the obvious practical realities of avoiding “unnecessary and unwieldy bundles of documents” in proceedings before that Tribunal. However, as the Tribunal noted in SI, if a party to proceedings “…considers that an IAT or AIT quotation from or summary of the background country materials is inaccurate, then it is open to that party to demonstrate this”. With that comment, I entirely agree.

Mr Mackenzie’s point was that it was Wednesbury unreasonable for the respondent not to have been guided in her decision in this case, as to who would be likely to be subject to a court order or arrest warrant, by certain passages in the evidence of expert witnesses as quoted by the Tribunal in GJ in appendices to their decision. It was submitted that these statements might lead a new Immigration Judge to find that the appellant was indeed likely to remain of interest to the authorities.

The passages relied upon by Mr Mackenzie were three in number, to be found in the evidence before the Tribunal given by Professor Anthony Good, Dr Chris Smith and Mr P A Punethanayagam. This evidence is to be found in Appendices I, J and K to the decision.

The passage from Professor Good’s evidence was in paragraph 4(g) and (h) of Appendix I as follows:

Dr Smith’s evidence included this (at paragraph 13 of Appendix J):

The passage from Mr Punethanayagam’s evidence relied upon appears at paragraphs 15 to Appendix K, with comment by the Tribunal in paragraph 16, as follows:

In the body of the decision in GJ the Tribunal had the following to say on these issues raised by these witnesses, as Mr Mackenzie helpfully noted for us.

In relation to Professor Good, the Tribunal said this, at paragraph 262:

As for Dr Smith, the only passage in the evaluation of his evidence to which we were taken was at paragraph 264 and 265 as follows:

Reading a little further in the decision on the subject of Dr Smith’s evidence, on factor (a) (in paragraph 265) it seems that the Tribunal found that the weight of evidence did not support a finding that returnees would be in difficulty in travelling to home areas to “refresh” documents, including ID cards. As to (b), it was noted (in paragraph 267) that there was only one case in the press reports of a person with an LTTE tattoo coming to harm. Factor (c) was said (in paragraph 268) to be relevant in a case where the person concerned had significant involvement in the diaspora activities which were adverse to the current regime. As to factor (d), the Tribunal said (in paragraph 271) that it did not think that “mental health” should now be considered an additional risk factor for persecution or serious harm.

Referring to the evidence of Mr Punethanayagam, the only passage of relevance in the body of the decision is to be found at paragraph 275 of the Tribunal’s decision, which was the one paragraph of all this material that was referred to the respondent in the submissions made to her in April 2014. I have quoted this passage already.

In my judgment, apart from any other problem faced by the appellant in criticising the respondent for failing to refer specifically to this material, it is hard to see why the respondent could be at fault for failing to allude to matters which were not relied upon by the appellant in the submissions that had been made to her. As already noted, only one short passage from the evidence of one witness was mentioned in the April 2014 letter. No mention was made of any of the other passages now relied upon. Mr Mackenzie submitted that the respondent was required to be familiar with the GJ case generally. I agree, but the same is true of solicitors making submissions to the respondent. The respondent can hardly be blamed for focussing upon the specific risk categories identified in GJ in the context of the arguments that were actually presented to her on the appellant’s behalf.

Further, returning to Mr Mackenzie’s argument based upon the AIT decision in SI, it is difficult to see what the Tribunal in GJ made of the evidence in the passages upon which reliance is now placed. I would be cautious in accepting, as in any respect determinative, isolated passages of evidence, no doubt recited for completeness in that Tribunal decision, which appear to have played no part in its decision and upon which it passed no comment, and which, in at least one case, the Tribunal described as “speculation”.

I consider that the respondent’s decision on this part of the case, as presented to her, cannot be criticised on rationality grounds. She focussed upon the risk categories, as identified in GJ, that might be relevant to the appellant’s case; she sought to see whether he had played a significant role in relation to post-conflict Tamil separatism and whether he claimed to be the subject of a court order or arrest warrant. He had made no such claim. She considered the findings of UTJ Wilson in this respect and further extensive material as to the procedures adopted in the case of the return to Sri Lanka of people such as the appellant. She considered the case presented in the new submissions and she made what seems to me an entirely rational decision based upon that material.

I would, therefore, reject the appeal based upon the Protection Ground.

I have set out above the outline of this ground of appeal and a summary of the report of Dr Dhumad upon which it is based. I have also summarised the response made to the submissions on this point given by the respondent in the answer to the letter from the appellant’s solicitors of April 2014.

The attack on the rationality of the respondent’s decision here has two aspects. First, it is argued that insufficient regard was paid to Dr Dhumad’s report. Secondly, it is submitted that, in the light of the Tribunal’s assessment (in GJ, paragraphs 454-455) of the mental health treatment facilities in Sri Lanka, the respondent could not reasonably find that an Immigration Judge might not take the view that there was no appropriate provision for care of mentally ill people such as the appellant was claimed to be.

Mr Deakin for the respondent accepted that if the view were taken that it was necessary to consider the issue of the adequacy of mental health treatment facilities in Sri Lanka, then that assessment “would be better dealt with by an Immigration Judge” (quoting my own note of his submissions). He did not, therefore, resist the second aspect of this ground of appeal. In making the concession, he pointed to paragraph 4 of Dr Dhumad’s report in which he noted that the doctor had been asked whether “…reasonable mechanisms [could] be put in place to minimize the risk of suicide (before, during and after the actual removal), and if so what these [would] be”. However, Mr Deakin noted that the doctor had not addressed this issue in the report.

Mr Deakin nonetheless argued that the respondent’s decision on the substance of Dr Dhumad’s report (the first aspect of this ground) had been entirely rational and that the respondent could not be criticised for rejecting the notion that this was adequate to found a “fresh claim” under Para. 353. Accordingly, it was not necessary to consider the question of the respondent’s approach to the adequacy of mental health treatment facilities in Sri Lanka.

It has to be noted that, in his decision in 2010, UTJ Wilson stated (at paragraph 31) that he accepted that a person who had been tortured might have a somewhat fractured recollection and might be suffering from mental distress. He went on to say, however, that “…[t]here is no evidence…of mental ill-health set out in the papers”. (This was following torture which Dr Martin’s evidence suggested had occurred as recently as 6 to 9 months before April 2010, when the appellant had been examined by him.) The respondent observed in her decision that there had been no reference to any suicidal impulses or to a suicide attempt in 2009, either in the original asylum claim presented to the respondent or in the appeal hearings. The respondent had also taken account of the general credibility findings by UTJ Wilson, which had not been before Dr Dhumad, in assessing what must have been an account provided to the doctor largely by the appellant himself as to his suicidal feelings. The doctor had not explained whether he had considered the possibility of the feigning or exaggeration of symptoms or whether the professed symptoms might have had other causes. For these reasons, the respondent took the view that Dr Dhumad’s report “add[ed] little weight to [the appellant’s] asylum claim.”

It is not for the court itself to decide whether the material presented to the respondent, upon which she made her decision, amounted to a proper “fresh claim”, the question is whether the respondent’s decision that it did not do so was arguably irrational in the Wednesbury sense. On this second aspect of the case, the mental health ground, as with the first, I do not consider that the UT erred in deciding that permission to apply for judicial review should be refused. I find that the reasons given by the respondent have not been shown to be irrational in that sense.

Conclusion

For these reasons, I would dismiss the appeal.

I agree.

I also agree.