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

ME is of Tamil ethnic origin, and a national of Sri Lanka. His claim to protection on asylum or humanitarian grounds was rejected by the First Tier Tribunal (“the FTT”) in a decision promulgated on 15 January 2016; and his appeal against that decision was dismissed by the Upper Tribunal (“the UT”) in a decision promulgated on 12 April 2016. With the permission of Underhill LJ he appeals on two grounds (and two grounds only):

Although the grounds of appeal assert that the UT applied too high a standard of proof, Underhill LJ rightly said that that was irrelevant and reformulated the ground as asserting that the FTT applied too high a standard of proof. I deal first with that allegation. The FTT set out the standard of proof in a number of paragraphs of the decision:

“[10] … in essence, an appellant will have to show that there are substantial grounds for believing that the appellant is outside his or her country of nationality … by reason of a well-founded fear of persecution for a Refugee Convention reason…”

“[12] … In essence, an appellant will have to show that there are substantial grounds for believing that, if returned, the Appellant would face a real risk of suffering serious harm, and that he or she is unable or, owing to such risk, unwilling to avail himself or herself of the protection of the country of return.”

“[13] … The burden of proof rests on the Appellant to satisfy me that there are substantial grounds for believing that, as a result of the Respondent’s decision, he or she will be exposed to a real risk of unlawful killing or torture …”

“[20] I have considered the evidence in its totality and make the following findings, bearing in mind throughout that the lower standard of proof identified above applies to the asylum and humanitarian protection claims. These findings take into account that the Appellant has been detained and badly beaten prior to his departure from Sri Lanka…”

The question the FTT posed was whether there was a “real risk”. But the FTT made it clear that the real risk did not have to be proved on the balance of probabilities. What had to be shown was that there were “substantial grounds” for believing that a “real risk” existed. These self-directions appear to me to be fully in line with the authoritative decision of the House of Lords in R v Secretary of State for the Home Department, Ex p Sivakumaran [1988] AC 958. Ms Jegarajah accepted that these self-directions were legally correct. The real question, therefore, is whether the FTT’s reasoning carried these self-directions through into its evaluation of the evidence.

The second ground for which permission has been given relates to alleged inconsistencies in the FTT’s findings, such that there was an error of law.

It is now common ground (although it appeared to be in issue at an earlier stage) that once the second appeals test is satisfied, with the result that permission to appeal has been granted, the appeal proceeds in the same way as a first appeal: see Cathie v Secretary of State for Business, Innovation and Skills [2012] EWCA Civ 739, [2012] BCC 813 at [59] to [60].

In evaluating the risk of ill-treatment on return to Sri Lanka, the FTT directed itself by reference to the country guidance given by the UT in GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC). Following a nine day hearing involving several expert witnesses and extensive documentary material, the UT gave country guidance is as follows:

“(1)

This determination replaces all existing country guidance on Sri Lanka.

(2)

The focus of the Sri Lankan government's concern has changed since the civil war ended in May 2009. The LTTE in Sri Lanka itself is a spent force and there have been no terrorist incidents since the end of the civil war.

(3)

The government's present objective is to identify Tamil activists in the diaspora who are working for Tamil separatism and to destabilise the unitary Sri Lankan state enshrined in Amendment 6(1) to the Sri Lankan Constitution in 1983, which prohibits the 'violation of territorial integrity' of Sri Lanka. Its focus is on preventing both (a) the resurgence of the LTTE or any similar Tamil separatist organisation and (b) the revival of the civil war within Sri Lanka.

(4)

If a person is detained by the Sri Lankan security services there remains a real risk of ill-treatment or harm requiring international protection.

(5)

Internal relocation is not an option within Sri Lanka for a person at real risk from the Sri Lankan authorities, since the government now controls the whole of Sri Lanka and Tamils are required to return to a named address after passing through the airport.

(6)

There are no detention facilities at the airport. Only those whose names appear on a “stop” list will be detained from the airport. Any risk for those in whom the Sri Lankan authorities are or become interested exists not at the airport, but after arrival in their home area, where their arrival will be verified by the CID or police within a few days.

(7)

The current categories of persons at real risk of persecution or serious harm on return to Sri Lanka, whether in detention or otherwise, are:

(a)

Individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they are, or are perceived to have a significant role in relation to post-conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka.

(b)

Journalists (whether in print or other media) or human rights activists, who, in either case, have criticised the Sri Lankan government, in particular its human rights record, or who are associated with publications critical of the Sri Lankan government.

(c)

Individuals who have given evidence to the Lessons Learned and Reconciliation Commission implicating the Sri Lankan security forces, armed forces or the Sri Lankan authorities in alleged war crimes. Among those who may have witnessed war crimes during the conflict, particularly in the No-Fire Zones in May 2009, only those who have already identified themselves by giving such evidence would be known to the Sri Lankan authorities and therefore only they are at real risk of adverse attention or persecution on return as potential or actual war crimes witnesses.

(d)

A person whose name appears on a computerised “stop” list accessible at the airport, comprising a list of those against whom there is an extant court order or arrest warrant. Individuals whose name appears on a “stop” list will be stopped at the airport and handed over to the appropriate Sri Lankan authorities, in pursuance of such order or warrant.

(8)

The Sri Lankan authorities' approach is based on sophisticated intelligence, both as to activities within Sri Lanka and in the diaspora. The Sri Lankan authorities know that many Sri Lankan Tamils travelled abroad as economic migrants and also that everyone in the Northern Province had some level of involvement with the LTTE during the civil war. In post-conflict Sri Lanka, an individual's past history will be relevant only to the extent that it is perceived by the Sri Lankan authorities as indicating a present risk to the unitary Sri Lankan state or the Sri Lankan Government.

(9)

The authorities maintain a computerised intelligence-led “watch” list. A person whose name appears on a “watch” list is not reasonably likely to be detained at the airport but will be monitored by the security services after his or her return. If that monitoring does not indicate that such a person is a Tamil activist working to destabilise the unitary Sri Lankan state or revive the internal armed conflict, the individual in question is not, in general, reasonably likely to be detained by the security forces. That will be a question of fact in each case, dependent on any diaspora activities carried out by such an individual.

(10)

Consideration must always be given to whether, in the light of an individual's activities and responsibilities during the civil war, the exclusion clauses are engaged (Article 1F of the Refugee Convention and Article 12(2) of the Qualification Directive). Regard should be had to the categories for exclusion set out in the “Eligibility Guidelines For Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka”, published by UNHCR on 21 December 2012.”

The UT added at [311]:

“The evidence is that although LTTE cadres were screened out and rehabilitated in May 2009, the government's concern now is not with past membership or sympathy, but with whether a person is a destabilising threat in post-conflict Sri Lanka.”

In KK (Application of GJ) Sri Lanka [2013] UKUT 512 (IAC) the UT held at [42] that the list of persons described in paragraph (7) (a) to (d) of that guidance:

“… is, and is intended to be, a definitive list of those persons who ‘are’ at risk on return; the Tribunal did not find that those persons at risk ‘included’ people who fell within one of the categories.”

Section 107 (3) of the Nationality, Immigration and Asylum Act 2002 empowers the UT to make practice directions requiring the tribunal to treat a particular decision as authoritative as regards a particular matter. Section 12 of the Practice Direction of 10 February 2010 provides that a reported decision bearing the letters “CG” is to be treated as an authoritative finding on country guidance. GJ bears those letters. Country guidance remains authoritative unless and until it is set aside on appeal or replaced by a subsequent country guidance decision: SG (Iraq) v Secretary of State for the Home Department [2012] EWCA Civ 940, [2013] 1 WLR 41 at [67].

In her discursive skeleton argument Ms Jagarajah made submissions about when country guidance need not be followed. It was by no means clear from that document whether the argument was that the country guidance in GJ remained binding; or whether it should be treated as outdated. It became clear in oral argument, however, that Ms Jagarajah accepted that the country guidance in GJ remained binding. I say no more, therefore, about the reports referred to in the skeleton argument which post-dated the decisions under appeal. They were irrelevant to the issues raised by the appeal and should not have been quoted at length in the skeleton argument or included in the bundle. It follows, in my judgment, that the FTT made no error of law in purporting to apply the country guidance in GJ to the facts found.

As noted, the FTT accepted that ME had been detained and beaten by the authorities before he left Sri Lanka. The important question was whether there was a real risk of that happening again if he were to be returned. As Underhill LJ put it in granting permission to appeal:

“… the underlying point is essentially that if the authorities are interested enough in the applicant to have detained him and tortured him once and recently … and to have visited his home twice afterwards, it is not possible to say that there is no risk of the same thing happening again.”

The essential findings of fact made by the FTT were as follows:

It was in the light of these findings that the FTT turned to consider whether ME fell within any of the categories of persons at risk. It will be seen that in GJ the UT accepted that a person who was actually detained was within a risk category: see (4). So the question boiled down to asking whether there was a real risk that ME would be detained again.

The parts of the decision relevant to that evaluation are these:

“[35] … The Appellant left the LTTE on his own account in 2007 … and has not on his own account been involved either in Sri Lanka or outside Sri Lanka in separatism since the end of the conflict in 2009. Based on the findings set out above it was the historic information he held about weapons caches which [led] him to be arrested in December 2014, and he gave over that information. I do not find that he is now perceived to be someone who would be a threat because of that knowledge given that he has already shown the authorities the site of where he knew weapons were hidden. Although the authorities have visited his home twice in his absence in a period of a year there is no arrest warrant out for him and although they may want to question him further, given the level of activity and that he was released without charge I do not find he is perceived as a threat because of historic information he has already given or further information he may have, taking into account his involvement with the LTTE stopped some eight years ago and his role apart from his knowledge was not at a high level. His knowledge does not give him the “significant role” required and he would not be perceived to have that significant role. In making this finding I have taken into account that the Appellant was badly beaten when he initially failed to co-operate but given that he did then pass on the information he had and was released without charge, I find that he would not now be perceived to have that significant role.”

“[39] In considering a risk on return, I have considered the fact that the Appellant was badly beaten because that may be relevant to assessment of the Appellant’s fear of return. However, given my findings set out above as regards the Appellant having passed over the information being sought as to the location of the weapons (he has not suggested that he has any more information as to other locations he would not give over), the lack of any arrest warrant and his release without charge I find that despite that serious previous beating the Appellant’s fear of repetition is not well founded.” (Emphasis added)

There is no doubt that the FTT took careful account of the fact that ME had been beaten while in detention. The FTT judge expressly referred to that beating time and again at [20], [35] and [39]. Her whole evaluation was directed to the question whether ME had a well-founded fear that detention and/or beating might be repeated; or, more precisely, whether there was a real risk that it would.

The following are, in my judgment, the pertinent points. ME’s arrest took place long after the cessation of the conflict in Sri Lanka. That led (or ought to have led) to the conclusion that he was perceived at that time as being of significant interest to the authorities. He was therefore a person who had fallen into category (a) of the risk categories identified in GJ. It would have needed an exceptionally strong case to persuade the FTT that he had now ceased to be at risk. The mere fact that he was released without charge and without reporting restrictions was not enough, because the authorities not only made two subsequent visits to his home; but they also searched it. The conclusion that should be drawn from that is that ME was still a person of significant interest; and moreover, that the authorities perceived that he might have more to tell them. Mr Jolliffe, in support of the FTT’s decision, submitted that ME was no longer a person of interest because the authorities had got what they wanted from him. But that does not explain why, having obtained the information from ME about the location of one arms cache, the authorities nevertheless twice visited his home and searched it. Thus, the FTT was right to proceed on the basis that there was a real risk that the authorities would wish to question him further.

What, then, persuaded the FTT that there was no real risk of the questioning taking place in detention? It seems to me that the FTT’s conclusion is founded on its perception that ME had passed on the information that he had; and that if he had any more he would be willing to give it over. The parenthesis in [39] is not a finding that ME had no more information. Rather it is a finding that he is willing to give over such information as he has. ME may be truthful in saying that if he has any further information he will hand it over; and the FTT was no doubt justified in believing him. But that is not, in my judgment, a complete answer. The real question is whether the Sri Lankan authorities would believe him; or perhaps to put it more accurately whether there was a real risk that they would not. The FTT’s finding could only be a complete answer if the FTT could have been satisfied that the Sri Lankan authorities would accept at face value, and without further beating or detention, the completeness of any further revelation that ME might make. The FTT does not confront that question. As Ms Jegarajah submitted, those who torture others do so for a variety of reasons, not all of them rational. The authorities had already had some success in extracting information from ME after beating him; which shows that at least at that time they did not accept his account at face value. What had changed in the conduct of the Sri Lankan authorities? The FTT did not explain this. Where, as here, a person has been tortured for alleged participation in political crimes a heightened degree of scrutiny is required: R (Sivakumar) v Secretary of State for the Home Department [2003] UKHL 14, [2003] 1 WLR 840 at [16].

I also consider that it is unsatisfactory in a case of this kind for the fact-finder to express findings of fact in the negative. For example, at [35] the FTT said (more than once) “I do not find that he is now perceived as a threat.” If the test were that of the balance of probability, a finding expressed in that way is equivalent to a finding that he is not perceived as a threat. That is because whether a fact has been proved is a binary question, which can only be answered “yes” or “no”. But where the question is whether there is a real risk that ME is perceived as a threat, a finding expressed in those terms does not squarely confront the relevant question.

In my judgment, therefore, there is a serious gap in the FTT’s chain of reasoning, which is sufficient to amount to an error of law. I would allow the appeal.

I do not wish to leave this appeal without commenting on some of the procedural aspects of its presentation. First, although Underhill LJ gave permission on the basis of grounds of appeal that differed to some extent from the grounds as pleaded, no reformulated grounds were prepared. In LC (Albania) v Secretary of State for the Home Department [2017] EWCA Civ 351, Beatson LJ (with whom David Richards and Hickinbottom LJJ agreed) said at [59]:

“I … underline the importance, when limited permission is given on grounds other than those in those in the notice of appeal, of formulating and lodging such grounds. The court, the respondent and any interveners are entitled to expect an appellant to do this well before the hearing rather than leaving them to work it out from the reasons given by the judge granting permission.”

I endorse those observations. It certainly appeared to me on reading Ms Jegarajah’s skeleton argument that her submissions ranged far beyond the grounds on which permission was granted.

Second, when it was put to Ms Jegarajah that aspects of her submissions went beyond the grounds upon which permission to appeal had been granted, she retorted that that was permissible in consequence of the decision of this court in R (Robinson) v Secretary of State for the Home Department [1998] QB 929, which decided that a special adjudicator and the Immigration Appeals Tribunal have a free-standing duty to take “obvious” points in an appellant’s favour even if he has not raised them himself. The same approach applies to the FTT and the UT: SS (Sri Lanka) v Secretary of State for the Home Department [2012] EWCA Civ 945. But that is because both the FTT and the UT are part of the decision-making process: SS (Sri Lanka) at [17]. This court is not. Thus the “Robinson duty” is not applicable to an appeal to this court: Srimanoharan v Secretary of State for the Home Department (The Times, 13 June 2000). Thus, although this court may give permission to appeal on a ground that was not argued before the FTT or the UT, the grant of such permission is not a licence to take whatever points occur to the appellate advocate in preparing for the appeal. The arguments that can be raised on an appeal to this court are limited by the grounds of appeal for which permission has been granted. I think that Ms Jegarajah accepted that this was so.

Third, I draw attention to paragraph 5 of Practice Direction 52A which states so far as material:

“(2)

A skeleton argument must—

•be concise;

•both define and confine the areas of controversy;

•be set out in numbered paragraphs;

•be cross-referenced to any relevant document in the bundle;

•be self-contained and not incorporate by reference material from previous skeleton arguments;

•not include extensive quotations from documents or authorities.

(4)

Where it is necessary to refer to an authority, a skeleton argument must—

(a)

state the proposition of law the authority demonstrates; and

(b)

identify the parts of the authority that support the proposition.

If more than one authority is cited in support of a given proposition, the skeleton argument must briefly state why.”

Of the 25 pages of Ms Jegarajah’s skeleton argument, approximately 19 consist of quotation, some of which are themselves over 3 pages long. Where an authority is cited, the skeleton argument does not state the proposition for which it is cited. There is no cross-referencing to any paragraph in either the decision of the FTT or the UT or any attempt to explain why the FTT’s findings of fact were inconsistent (which is the ground on which Underhill LJ granted permission to appeal). Despite a recitation of the asserted facts, based on the evidence of ME and his witnesses rather than the FTT’s findings of fact, there is only a single cross-reference to the bundle relating to a scarring map. That scarring map was not referred to by the FTT because it was common ground that ME had been beaten as he had alleged. Most importantly the skeleton argument failed to define and confine the areas of controversy by reference to the grounds of appeal, which it does not mention at all.

Fourth, the bundle of authorities filed before the start of the appeal failed to comply with paragraph 29 (2) of PD 52C. A substitute bundle was handed up a few minutes before the start of the hearing, but the court needs a compliant bundle of authorities in order to make effective use of its pre-reading time.

I appreciate the constraints under which practitioners operate in this field of law, but that is no excuse for failing to adhere to proper standards of appellate advocacy.

I agree.