United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

IAC-FH-AR-V1

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: AA/10240/2013

AA/10244/2013

AA/10245/2013

AA/10248/2013

 

 

THE IMMIGRATION ACTS

 

Heard at North Shields	Determination Sent
On 24th September, 2014	On 10th October 2014
Signed 10th October, 2014

 

Before

 

Upper Tribunal Judge Chalkley

 

 

Between

 

SELVAKUMARI SUBRAMANIYAM

GAMINI DILSHAN DESAPRIYA RATHNAYAKE MUDIYANSELAGE

AKSHAN DILIMINi GAMINI DILSHAN

AKSHAN DILIMINA GAMINI DILSHAN

Appellants

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

 

Representation:

 

For the Appellant: Miss M Rasoul of Counsel, instructed by A and P Solicitors

For the Respondent: Miss Rackstraw, a Senior Home Office Presenting Officer

 

 

DETERMINATION AND REASONS

 

1. The appellant, her husband and her children are all citizens of Sri Lanka. She and her elder daughter entered the United Kingdom on 26^th January, 2011, with a valid grant of entry clearance as the dependent spouse and child of a person with leave to remain as a Tier 4 Student. Her younger daughter was subsequently born in the United Kingdom.

 

2. The appellant's husband was granted entry clearance to the United Kingdom as a Tier 4 Student from 12^th January, 2011, to 13^th March, 2012. On 3^rd March, 2012, the appellant's husband applied for further leave to remain as a Tier 4 Student and the appellant and elder daughter applied for leave to remain as his dependants.

 

3. Those applications were refused by the respondent on 5^th April, 2012, when the respondent also made Section 47 removal directions in respect of them. No appeals were lodged against that decision, but instead the family made further applications of the same type on 30^th April, 2012. These applications were subsequently refused by the respondent on 20^th November, 2012, with no right of appeal.

 

4. On 20^th December, 2012, the applicant made an application for asylum. Her claim was based on the fact that she claimed to fear risk of harm from the Sri Lankan authorities in the event of her return to Sri Lanka because she was perceived by them to be a member of the LTTE.

 

5. The appellant’s asylum claim was refused by the respondent on 6^th November, 2013 who made a further decision to remove her to Sri Lanka, having decided that the account of events upon which it was based was untrue. The appellant's appeal against the removal decision was heard on 13^th December, 2013 and was dismissed by First-tier Tribunal Judge Duff in a determination promulgated on 8^th January, 2014. During the course of that determination, the judge made a series of adverse findings of fact, rejecting as untrue the appellant's account of her experiences in Sri Lanka.

 

6. First-tier Tribunal Judge Simpson granted the appellant permission to appeal Judge Duff’s determination on 20^th February, 2014. The appeal came for hearing before First-tier Tribunal Judge J M Holmes, sitting as a Deputy Upper Tribunal Judge, on 8^th May, 2014 when the parties agreed the determination contained no reference to:

 

“(i) any of the country guidance decisions issued in relation to Sri Lanka, or

(ii) any of the background evidence relating to Sri Lanka relied upon by either party, or

(iii) any analysis of the evidence offered in support of the appeal by the appellant's husband, or

(iv) any analysis of the risk the appellant says that she and her family face as returnees to Sri Lanka from the United Kingdom, travelling on emergency travel documents which, she says, would give rise to the perception that she and/or her husband were failed asylum seekers and will lead to an enquiry into their pasts and to their being placed on a ‘stop list’ or a ‘watch list'.

 

7. First-tier Tribunal Judge J M Holmes, sitting as a Deputy Upper Tribunal Judge, was satisfied that the cumulative effect of these omissions was such as to render the determination unsafe, for lack of adequate reasoning and analysis of the evidence placed before the Tribunal and the appropriate course was for him to remit the appeal to the First-tier Tribunal for it to be reheard.

 

8. The appeal was listed for rehearing before First-tier Tribunal Judge Holmes on 11 July, 2014, at North Shields and his determination was promulgated on 21^st July, 2014.

 

9. In his determination the judge makes it clear that he was aware that there were deficiencies in the determination of First-tier Tribunal Judge Duff, but he referred to the judge’s very helpful and full Record of Proceedings which Judge Duff had typed during the course of the hearing before him. Judge Holmes made references to the evidence recorded by First-tier Tribunal Judge Duff at paragraphs 43, 51 and 65 of his determination.

 

10. The grounds for permission to appeal are lengthy and I have set them out in the annex to this determination. The first suggests (at paragraph 5) that findings made by First-tier Tribunal Judge Holmes on the basis of a comparison of the evidence heard by First-tier Tribunal Judge Duff with that given to First-tier Tribunal Judge Holmes were unfair to the appellant. It is said that it was unfair because the appellant’s Counsel (who was not the Counsel representing the appellant at the previous hearing) did not have a record of the evidence and as a result the appellant's Counsel could not have been expected to put to the appellant matters raised in evidence by the appellant now when they had not been previously been mentioned when the appellant earlier gave evidence to First-tier Tribunal Judge Duff.

 

11. The second challenge is that the judge made his findings on credibility without reference to objective evidence. The grounds suggest that this is of particular significance in the light of the fact that these previous determination was set aside partly because credibility findings had been made in the vacuum.

 

12. The third challenge refers to paragraph 46 of the determination of Judge Holmes and criticises him for attaching no weight to the appellant's evidence in her statement. There are other challenges which I shall deal with shortly but they are the principal ones.

 

13. In addressing me, Miss Rasoul suggested that there were two main complaints in the grounds of application, the first being a comparison by Judge Holmes with the evidence heard by him compared with the evidence recorded by Judge Duff when Judge Holmes had not made the Record of Proceedings of Judge Duff available to Counsel. She suggested that it would have been appropriate to have given copies of the Record of Proceedings to Counsel to enable the appellant to comment on them. Miss Rasoul suggested that this error taints the determination because it affects the credibility findings and it was important that the hearing should have been conducted with scrupulous fairness.

 

14. The second challenge was that the objective evidence was not considered by the judge but, Counsel told me, none had been submitted on behalf of the appellant. At paragraph 62 Judge found it to be implausible that the appellant's husband engaged the assistance of a “travel agent” to assist in securing the release of the appellant from detention through payment of a bribe. The appellant and her husband had only referred to this man as being an “agent” and the judge erred in failing to appreciate that agents are often used in Sri Lanka to facilitate both release from detention and departure from the country. They do not act as “travel agents” as they do in the United Kingdom. The judge asks why this particular travel agent would be a person to approach for assistance and finds the explanation “He is a Muslim, he is the type of person who does these jobs” a “less than compelling explanation but he does not make any reference to the judge’s explanation given in evidence as to why he approached the agent for help, namely “I can’t explain to a Sinhalese man, I can’t explain to my brothers. I know him very well so I explained to him”.

 

15. The judge further erred at paragraph 50 where he noted that the appellant claimed to have been identified and checked at that checkpoint whereas her husband was not. The judge finds that account not to be true and suggests that if the authorities had cause to detain the appellant for questioning then it would make no sense at all for them to fail to question the husband. What the judge failed to appreciate was that the appellant is a Tamil but that her husband is not.

 

16. The judge also generally “misportrayed and overstated the appellant's case”. He refers to the appellant's “long term mission” and to the “Colombo mission” but none of these words were the appellant's. At no time did she say that she was sent on a “mission” as such, merely that she was sent to Colombo to gather intelligence for the LTTE. The use of such language by the judge as “target” “spy” and “mission” have given the appellant's claimed involvement a heightened sense of importance that she never sought to assert.

 

17. The judge’s finding at paragraph 35 ignores the fact that her evidence was not that she was purporting to pass for a Sinhalese woman or proposing to convince her husband of the fact that she was Sinhalese. The appellant was speculating when she suggested that the property she and her family moved into at Ja-Ela was purchased by the LTTE in advance of her mission. There was no suggestion that the property had actually been purchased for their mission merely that it had been acquired at some stage by the LTTE. The judge should have realised that it was speculation on the part of the appellant that the property had been purchased specifically for the mission.

 

18. Finally it is suggested that what the judge said at paragraph 32 is misleading. The judge records that the appellant's “claimed Tami ethnicity is not accepted by the respondent” but that is misleading in that the respondent did not expressly state that the Tamil ethnicity is accepted. It was never put to the appellant that she was not of Tamil ethnicity.

 

19. For the respondent the Presenting Officer took me to paragraph 51 of the judge’s determination and asked me to note that the evidence before the judge was that the appellant was beaten and sexually abused. She did not claim to have been deliberately burned during her questioning or hit with iron bars and she did not then claim that she had sustains any injury in the course of her detention that resulted in any visible scarring to her body. At paragraph 51 the judge merely points out that again when giving evidence to Judge Duff, her undated and unsigned witness statement that she relied upon did not make any such claim either. There was no reason why the judge should not have relied upon the record of evidence recorded by Judge Duff. The reasons Judge Duff’s determination could not stand had nothing to do with his Record of Proceedings or the evidence he had recorded.

 

20. It has been suggested that Counsel should have been shown a copy of the Record of Proceedings and it was unfair because she did not know what had been recorded by Judge Duff. However, the appellant knew very well what evidence she had given to Judge Duff and the fact that she was not able to give a consistent account to Judge Holmes is an indication that it was not credible. The judge was entitled to do what he had done.

 

21. The Presenting Officer then referred me to paragraph 43 of Judge Holmes’s determination. There he refers to the “target” that was said to have been two brothers which each held the rank of corporal. It is the fact that they each held the rank of corporal which was the evidence given to Judge Duff. Judge Holmes has not relied on an adverse finding made by Judge Duff and that of course would have been entirely wrong because Judge Duff’s determination could not stand.

 

22. Miss Rackstraw asked me to note that there was no complaint at all of there being any error in the Record of Proceedings of First-tier Tribunal Judge Duff.

 

23. The findings that were made by Judge Holmes at paragraphs 46 and 47 were findings which he was entitled to make on the evidence before him. At paragraph 62 the judge does refer to the agent as a “travel agent” but it is quite clear that the very experienced Immigration Judge was not confusing the agent with being what one might describe as being a “travel agent” in the United Kingdom. He very clearly knew that this agent was used to help with the applications for entry clearance. The judge had been entitled, she suggested, not to accept the appellant's explanation for having approached this person.

 

24. Criticism is made of the judge for making findings without reference to objective background material but of course, as Counsel has confirmed, none had been served. However, the judge clearly does refer to background evidence served by the respondent at paragraph 22. However, there was clearly nothing about the appellant or her background which suggested any reason why the LTTE should approach her to undertake an intelligence gathering job on their behalf. The criticism levelled at the judge for what is said at paragraph 46 of the determination does not identify any error on his part. It was reasonable of the judge in the circumstances to find as he did. In relation to the challenge at paragraph 14, one could reasonably expect someone who had chosen to entrust their life and security to an agent to give an explanation as to why they had chosen this particular agent but none was given at all. What the judge said was in the circumstances reasonable.

 

25. Addressing me in closing, Miss Rasoul asked me to find errors of law and to remit the appeal for hearing afresh by another Tribunal. I reserved my determination.

 

26. Dealing first with the issue of Judge Holmes comparing his record of the appellant's evidence before him with the record of evidence recorded by Judge Duff when the appellant had earlier given evidence to him, I have concluded that there is no material error of law on the part of Judge Holmes. He was perfectly entitled to look at what the appellant had earlier said in giving evidence to a judge. The appellant suffered no unfairness, because she was very well aware of what she had said earlier. Judge Homes was entitled to conclude that because the appellant has not given a consistent account, she was not a credible witness.

 

27. The fact that Counsel was not present on the earlier occasion when Judge Duff recorded the appellant's evidence does not mean that Judge Holmes is precluded from taking into account what the appellant had earlier said. No criticism was made of Judge Duff’s determination which has any bearing on his Record of Proceedings and none of the issues which cumulatively rendered Judge Duff’s determination unsafe involved the evidence he recorded given by the appellant. It was not, for example, suggested that he had wrongly recorded the evidence he heard. I have concluded, therefore, that there was no error on the part of Judge Holmes by making reference to the evidence record by First-tier Tribunal Judge Duff.

 

28. It is suggested that the judge’s findings on credibility were made without reference to any objective evidence. According to Miss Rasoul there was no evidence filed on behalf of the appellant. The judge records at paragraph 22 the fact that he was supplied with a map of the Colombo region, identifying the areas the appellant referred to in her evidence as places where she had lived and an extract of the Country of Origin Information Report on 2002. The judge was hampered by the fact that those representing the appellant had not prepared a properly paginated and indexed bundle of documentary evidence, but they were quite content (as apparently was Counsel) for the appeal to proceed without the submission of any further background evidence. It is suggested that Counsel’s skeleton argument (consisting of some fifteen pages) made reference to a Human Rights Watch Report that the judge failed to take into account. Criticism is made of his finding at paragraph 34. At paragraphs 33, 45 and 35 the judge said this:

 

“33. The appellant denies that her knowledge any other member of her extended family has any LTTE connection, involvement, or membership. It is however her case that at about the age of 19 (when she had said she was living in Killinochchi) she was approached by a stranger in the street and asked to join the LTTE. She says that a number of such approaches were made to her, which she rejected, although ultimately she took someone she believed to be a member of the LTTE to the family home, where an agreement was reached with her father that she should join, although it was a condition of the agreement that she would not be used as a fighter or a suicide bomber.

 

34. The appellant denies knowledge of why she should be singled out for such an approach (none having been made to anyone else she knew, or to any member of her extended family). She claimed to believe that the LTTE would have monitored her before making any approach to her – but she was unable to explain what that monitoring would have consisted of, or, more importantly, would reveal that would have given the LTTE a reason to believe their approaches to her would be welcomed. If her belief as to monitoring were correct, then it follows that any accurate LTTE enquiries into her background and family would have revealed that she was a member of a family with no LTTE connections, who had only recently moved into the area. One might have thought that this would have given the LTTE cause for concern about the family’s true loyalties, and good reason to seek its recruits elsewhere. It certainly begs the question as to why they would persist in trying to recruit someone from a family with no LTTE connections, knew to the area, who was unwilling to volunteer when first approached, and whose family loyalties might therefore reasonably be inferred to be opposed to the LTTE.

 

35. The appellant's account is that she was not recruited to fight, but to gather intelligence, and that for that purpose the LTTE trained her to be entirely fluent in Sinhalese. She does not say in terms that her appearance is such, and her fluency is such, that she could at the completion of her training pass for a Sinhalese woman, although if she were to be a truly effective spy for the LTTE within the Sinhalese community I would have expected that would be a necessary qualification.”

 

29. The fact that the LTTE were recruiting during the ceasefire does not, with respect, mean that what the judge said was wrong. He was entitled to suggest as he did that it begs the question why the LTTE should persist in trying to recruit someone from a family with no LTTE connections, new to the area, who was unwilling to volunteer when first approached, and whose family loyalties might therefore reasonably be inferred to be opposed to the LTTE.

 

30. So far as the next challenge is concerned, I have concluded that there are no errors in what the judge said at paragraph 46 of the determination. It again takes out of context what the judge has said. At paragraph 45, 46 and 47 he said this:

 

“45. The appellant claims to have fallen in love with the ‘target’, to have become pregnant by him, and to have married him in December 2008. She offers no explanation of what her family made of all of this, having been persuaded to relocate to Ja-Ela in order that she might spy upon the ‘target’, only to find him becoming a member of their family. Having fallen pregnant during 2008, the appellant claims to have decided to cease her involvement in the LTTE. She claims to have done this by the simple expedient of throwing away the SIM card that she had been provided with for the mobile telephone that she had been equipped with in order to permit her to contact the individual within the LTTE to whom she was meant to pass on information she was meant to be gathering.

 

46. The appellant does not claim to have believed at any time that the LTTE had been destroyed so completely that there was no risk of any member of that organisation trying to contact her. It does not appear to have occurred to her that if her story were true, officers of the LTTE knew perfectly well where she and her family, and the ‘target’ were living in Ja-Ela, and had the ability to trace them even if they had moved on. On the appellant's account, however, only did she never hear from the LTTE again but it is plain that she did not expect to do so.

 

47. At interview the appellant sought to explain the lack of further contact from the LTTE not on the basis of their military difficulties, but on the basis that she and her husband had moved to Gampaha after their marriage in 2008. The only reason she gave for that move under cross-examination was, however, the need for herself, her husband and her baby to have a home of their own. Gampaha is no great distance from Ja-Ela and she does not suggest they changed their names or that her husband changed the nature, or name, of his construction business. Moreover on her own account the family appeared to have remained in the LTTE house provided to them in Ja-Ela and one might infer that she continued to have regular contact with them. Thus on her own account no effective protections were taken against her being traced by officers of the LTTE. What the judge said was perfectly reasonable in the circumstances.

 

31. The next challenge at paragraph 14 criticises what the judge said at paragraph 62 of the determination and the criticism, again, takes the judge’s findings out of context. The judge said this:

 

“62. The appellant says that she was released from detention after seven days without charge after her husband paid a bribe on 12lac Rupees. He denies bribing anyone directly but he says that once the appellant was detained he returned to Colombo unaware of where she was held or how long she was held for. He claims to have decided that the only person he could ask for assistance was the travel agent that he had used to help him with applications for entry clearance to the UK – whereupon he claims to have been given a price, and then later told where and when to go and collect her. Asked why he thought this travel agent would be the person to approach for assistance, his reply was ‘He is a Muslim, he is the type of person who does these type of jobs’ – which is in my judgement a less than compelling explanation. No further details were forthcoming, save that he claimed to trust the agent as a result of dealing with him over the application for entry clearance. However, he shied away from explaining what if anything the agent had been required to do in order that entry clearance to the UK would be granted that would lead the appellant to conclude that he would have the contacts or the expertise to bribe the army to release anyone who on his case he knew had correctly been identified as an LTTE spy in Colombo. He also denied knowledge of how this travel agent could identify where his wife was held or who needed to be bribed to secure her release, and negotiate and pay all the necessary bribes to secure that, all in such a short space of time.”

 

32. The judge did not err in referring to this man as a “travel agent”. He knew precisely what the appellant and her husband had meant. This was the agent who had actually obtained the appellant's husband's visa for the UK. The appellant's husband had not entered the United Kingdom illegally but with a valid visa of the sort usually obtained by travel agents.

 

33. I am afraid I do not accept that the judge’s findings are materially flawed as a combined result of erroneously recording the appellant's evidence and failing to consider the realities of the situation in Sri Lanka with reference to objective evidence. The challenge has, to a large part, simply taken out of context what the judge has said.

 

34. The next challenge is paragraph 50 of the judge’s determination, where he did not believe the appellant's account that she was detained at a checkpoint, even thought her husband who was with her was simply told to go. If the authorities genuinely believed that the appellant was an LTTE agent then it is reasonable that they would not only have questioned the appellant, but would question anyone travelling with her whether he was a Tamil or not and particularly so if it appeared that he was her husband. It is simply not credible that if the appellant was of interest, anyone with her would not have at least been questioned.

 

35. The next criticism of the determination is that the judge has generally misportrayed and overstated the appellant's case. I do not believe that he has. Her job was effectively to be a spy for the LTTE and in May 2006 claims to have been instructed to go to Colombo in order to gain the trust of a particular man. The fact that the judge refers to this particular man as being a “target” does not, with respect, misportray or overstate the appellant's case. The fact that the judge refers to the “long term mission” and to the “Colombo mission,” does not misportray or overstate the appellant's case. The Colombo mission refers to the task which she was given to befriend a particular man with a view to obtaining information from him about the activities of the Sri Lankan army. There is simply no merit in the suggestion that this in some way misportrays or overstates the appellant's case.

 

36. The criticism in the grounds of what the judge said at paragraph 35 also, I believe, fails to identify any error on a point of law; the judge was entitled to say what he did at paragraph 35. I was not addressed on the challenge at paragraph 17b by Counsel but having carefully read what the judge said at paragraph 44 I am satisfied that again no error of law is identified. Had the person she was supposed to befriend simply ignored her there was no alternative plan.

 

37. The challenge at paragraph 17c does not misportray the appellant's evidence. Her evidence was that a house was being made available for her to enable her to pursue her mission. The evidence of the appellant was that it had been purchased by the LTTE in advance of her mission because it was next door to the place where the person she was supposed befriend lived. Again, I find no error of law on the part of the judge.

 

38. The last challenge at paragraph 19 suggests that the judge misleads by suggesting that the appellants’ claimed ethnicity is not accepted by the respondent. With very great respect, he did not mislead. The appellant's claimed ethnicity was not accepted by the respondent. The Reasons for Refusal Letter was silent. That does not mean that her ethnicity was accepted.

 

39. For all of these reasons I have concluded that the determination of First-tier Tribunal Judge Holmes does not contain an error on a point of law. I do not set aside the decision but order that it shall stand.

 

 

 

Upper Tribunal Judge Chalkley 10^th October 2014

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The appendix above referred to