Kirupakaran, R (on the application of) v Immigration Appellate Authority

MR JUSTICE STANLEY BURNTON: This is an application for judicial review of a decision of the Immigration Appeal Tribunal, sent out on 17th June 2002, refusing leave to appeal from a decision of Mr Brian Watkins, the Adjudicator, who heard the claimant's appeal against the Home Secretary's refusal to grant him asylum.

The claimant is a Tamil from Sri Lanka. His case before the Adjudicator was that he had in the past suffered persecution from the Sri Lankan army, had then been handed over to the People's Liberation Organisation of Tamil Eelam (referred to as PLOTE), and that if returned to Sri Lanka he had a justifiable fear that he would again be persecuted and tortured by being returned to the custody of either the army or the police or PLOTE. The Adjudicator accepted his account of his experiences as credible, but rejected his claim for asylum on the basis that there had been a change in circumstances in Sri Lanka as a result of the cease-fire between the Tamil Tigers and the government such that there was no longer any reasonable fear of detention if the claimant were returned.

It is conceded for the purposes of this appeal by the Secretary of State that the decision of the IAT was insufficiently motivated, the reasons given were inadequate, and therefore, on the face of it, it should be set aside unless it be the case that there be no point in doing so because any appeal from the decision of the Adjudicator would have no reasonable prospect of success; that being the test under the relevant regulations relating to the grant or refusal of leave to appeal to the Immigration Appeal Tribunal. It is correspondingly submitted that the material before this court is sufficient to satisfy the court that there is no point in returning the matter to the IAT because it is apparent to this court that the appeal would have no reasonable prospect of success. In other words, this court is asked to apply the very same test as that of the IAT.

The claimant is entitled to a proper consideration of his application to appeal and a reasoned decision of the Immigration Appeal Tribunal on his application unless it be shown that there is no point in the matter being remitted for the reason I have indicated, namely effectively that his application for leave to appeal is hopeless.

The history put forward by the claimant, and accepted by the Adjudicator, was that he had been recognised in 1996 as a supporter of LTTE (that is to say the Tamil Tigers), he had been arrested by the army and handed over to PLOTE. He had been held by them for 22 months and subjected to severe ill-treatment amounting to persecution and torture. He ceased to be held by PLOTE in circumstances to which he referred, but he was subsequently arrested and made subject to a reporting condition while his identity and background were checked. It was while he was subject to those reporting conditions that he escaped from Sri Lanka, fearing that once his previous detention and identity and association with the LTTE were identified, he would be taken into custody and would again be persecuted and indeed tortured.

The Adjudicator accepted that in the circumstances which obtained prior to the cease-fire between the government and the Tamil Tigers his fears were or would have been justified. He said this:

The criticism that is made of the decision of the Adjudicator and of that passage is that it would appear to identify the question of risk to a returnee on a wanted list of detention, and therefore of torture, with the question whether the cease-fire would hold. It is submitted that two separate questions should have been addressed by the adjudicator: firstly, it being accepted on both sides that there was a cease-fire, was it more than transitory, was the cease-fire a circumstance which appeared to be sufficiently durable to affect the risk to the claimant if he were returned? And, secondly, assuming that the cease-fire was sufficiently durable, what was the effect of the cease-fire on risk to returned persons on a wanted list?

It is evident that the existence of a cease-fire is relevant to the second of those questions, and one would expect the cease-fire to lead to a reduction of risk to returnees, including returnees on a wanted list, but nonetheless the two are separate questions. It is apparent from the passage to which I have referred that the Adjudicator regarded the second question as being effectively decided by the first question. In doing so, in my judgment, he wrongly coalesced the two issues. In those circumstances, I am satisfied that an application for leave to appeal to the IAT would have had a reasonable prospect of success, subject of course to the question whether the objective material before the IAT at the date the case came before the IAT was such as to enable the IAT to say either that the conclusion of the Adjudicator was correct or that, having regard to new material, there was no reasonable prospect of the claimant establishing that he had a justifiable fear of persecution if returned. Those questions of course would have had to be addressed by the IAT, and certainly should have been addressed, not in the first place on the basis that the claimant had established or had not established a risk, but on the basis that the question of leave depended on whether there was a reasonable prospect of his succeeding in establishing that he had a justifiable fear of persecution on return.

The question then arises whether, on the basis of either the material that was before the Adjudicator or the subsequent material, this court is in a position to say that an appeal has no prospect of success. In considering that material, it seems to me that, unless the matter is open and shut, I should bear in mind that the IAT is for present purposes a specialist tribunal which has greater familiarity with the objective material on which the decision in a case such as the present must be based than this court.

I have been taken to a number of decisions of the IAT and a decision of the Court of Appeal from which it is apparent that even at the present date it cannot be said that there is no risk to a Tamil returnee to Sri Lanka irrespective of his history or the circumstances; nor can it be said that if a claimant is returned and happens to be detained he is safe from torture in the hands of the police.

The position in Sri Lanka has improved so far as Tamils are concerned very considerably since this case was decided. The evidence is that now many returning Tamils are waved through at the airport without interrogation and without detention. During the course of last year more than 750 Tamils held under the Prevention of Terrorism Act had their cases dropped and were released. No new arrests under that Act occurred. According to the Home Office Country Assessment: "As of 1 September 2002, 252 Tamils charged under the PTA remained in detention without bail awaiting trial. The Government claimed that the cases that remained only were individuals directly linked to suicide bombings or other terrorist and criminal acts". That category would not include the claimant, but that is the claim of the government rather than something which is confirmed by Her Majesty's Government. The position so far as torture and persecution of those in custody has undoubtedly improved. According to the country assessment, Amnesty International, following a two week visit to Sri Lanka, stated that the ongoing cease-fire agreement had made a significant impact in reducing human rights abuses in Sri Lanka.

In 2002, according to the Home Office assessment, unlike in previous years, there were no reports of the security forces failing to comply with legal protections. There were reports of extensive training being given to members of the security forces. I also refer to paragraphs 6.143 and 6.144 of that assessment.

The present position is that the cease-fire is continuing. There have been from time to time announcements indicating that the negotiations were going less well than might well be hoped, no doubt to some extent those are themselves steps taken for the purposes of negotiations, but the cease-fire still holds.

The US Department of State report says this in the report dated 2002:

The present position seems to me to be this: if the claimant were to be returned to Sri Lanka and if he were to be detained as a result of his identification as being on a wanted list, there would be, on the material available, a risk of torture. Whether that risk is a sufficiently substantial risk is a matter I do not propose to address. If he were to be returned to Sri Lanka there is a risk that he would be identified as being someone from a wanted list and a risk that if so identified he might be detained. The prospects of his being detained have been significantly diminished by reason of the cease-fire, and indeed the fact that the ban on the LTTE has been lifted, which implies that those who are supporters of the LTTE and associated with it will not be the subject of prosecution or detention for that reason alone. Persons who have participated in murders and the like while in the LTTE may be in a different category, as indeed indicated by the UK assessment.

In my judgment, the material before me is insufficient for me to come to the conclusion that the application for leave to appeal to the IAT is doomed to failure. It seems to me that, having regard to the defect I have identified in the decision of the Adjudicator, he is entitled to have an assessment by the IAT of the matters I have indicated, namely, one, the risk of his detention on his return given that it is apparently accepted that he is on a wanted list, although not in respect of any serious offence and, two, if detained the risk of his being detained for any significant period and, more importantly, of there being any ill-treatment if he is detained. It seems to me that the country assessments, while giving much to the Secretary of State in terms of evidence of an improvement in conditions, have not got to the position where it can be said that in respect of someone who has suffered in the way that the claimant has necessarily there is no real risk to him on his return. The assessment as to whether he is at any real risk is one that should be made by the IAT and he is entitled to have it made by the IAT.

In making the comments I have, I hope I have made it clear that I have not sought to determine whether or not there is a real risk of his detention on return or whether or not there is a real risk of torture if he is so detained. It seems to me that those assessments are assessments to be made by the IAT on a renewed application for leave to appeal against the decision of the Adjudicator.]

MR McNALLY: I am grateful. In terms of the formal order for relief, we had asked that the order of the IAT be quashed in the first instance and for a compulsory order compelling the appeal to be heard, because otherwise the net effect means it goes back to them and we have to have the appeal formally decided again by them, rather than the other route, which effectively remits it to them for the hearing, a determination to which my Lord has just referred.

MR JUSTICE STANLEY BURNTON: So you are asking for a new hearing before an adjudicator?

MR McNALLY: No, before the Immigration Appeal Tribunal. The effect of simply quashing the refusal will be that it will go back for reconsideration as to whether to grant leave or not. If one quashes the refusal and issues a compulsory order requiring --

MR JUSTICE STANLEY BURNTON: Let me hear what Mr Sheldon has to say.

MR SHELDON: My Lord, in my submission, the effect of your judgment is that it should be remitted for reconsideration of leave to appeal because the way in which, in my respectful submission, your judgment is framed is that you have taken no view as to what that decision ought to be on the part of the IAT, you have simply formed the view that they ought to consider it properly this time.

MR JUSTICE STANLEY BURNTON: That is really what I said.

MR SHELDON: That seemed to me to be the sense of it. You deliberately refrained, it would seem, from expressing a view as to what their decision should be and left that matter to them, and the proper course of events should now be that they now reconsider whether or not there is an arguable case and whether or not --

MR JUSTICE STANLEY BURNTON: They may decide to refuse leave on the basis that having regard to the material before them there is no real risk.

MR SHELDON: Yes, but the essential defect in the IAT's decision, as disclosed by your Lordship's judgment, is that they did not give proper consideration to ground 4 first time round, not that they considered it and got it wrong.

MR McNALLY: My Lord, I am against it in principle because our case was it was done properly by the IAT hearing last year and that may or may not have been the end of it. If my Lord is against me, of course I would simply ask for the order to be quashed and there be an order of costs, there has been no contribution to the public funding required on the certificate, and ask for an assessment in the usual way.

MR JUSTICE STANLEY BURNTON: Thank you. The basis of my judgment was that there had been no proper consideration of the application for leave to appeal. I did not intend to foreclose the question whether there should be leave to appeal. I took and take the view that the assessment as to whether there is a reasonable prospect of success having regard to the error made by the Adjudicator, echoed by the decision of the IAT, failed to identify the separate considerations required to the risk of detention and torture on return as against the question of the continuation of the cease-fire. In those circumstances there will be an order quashing the decision of the IAT and, if necessary, an order requiring the IAT to reconsider the application for leave to appeal.

MR McNALLY: My Lord, perhaps I can suggest that that is done by us because obviously we will want to resubmit the fresh information so it is altogether. Can I just take instructions. My suggestion would be that we put in the bundle within 21 days (inaudible). If we give that undertaking perhaps that is a less formal way of dealing with it.

MR SHELDON: That seems a sensible way to proceed.

MR JUSTICE STANLEY BURNTON: Costs? Costs are indisputable, are they not?

MR SHELDON: I struggle to think how I might resist that application, my Lord.

MR JUSTICE STANLEY BURNTON: The only formal record you require is an order quashing the decision?

MR McNALLY: Yes, please.

MR JUSTICE STANLEY BURNTON: Good, thank you both very much.