Case No: C5/2006/2507
Neutral Citation Number: [2007] EWCA Civ 226
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL 
[AIT No. HR/00283/2004]
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 7 February 2007
Before:

LORD JUSTCE LAWS
 LORD JUSTICE CARNWATH

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Between:

	SM (Sri Lanka)	
Appellant	
	- and -		
	SECRETARY OF STATE FOR THE HOME DEPARTMENT	
Respondent	

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MS S JEGARAJAH  (instructed by Messrs K Ravi Solicitors, Rayners Lane, PINNER HA5 5DY) appeared on behalf of the appellant.

THE RESONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.

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Judgment
Lord Justice Laws:  
1.	This is a renewed application for permission to appeal against the decision of the Asylum and Immigration Tribunal (“the AIT”) on 1 September 2006.  Permission was refused on consideration of the papers by Sir Henry Brooke on 11 January 2007.
2.	The applicant is a Tamil from Sri Lanka. It appears that he had sought asylum in Romania but was returned to Sri Lanka on I think 19 February 1998.  It was said that he was detained for at least a week, was brought before a court and charged with an offence and then released on bail. He had apparently not complied with conditions of his bail nor surrendered when required or expected.  He entered the United Kingdom illegally on 15 July 1999 and claimed asylum.  That was refused on 17 February 2000.  There followed unsuccessful appeal proceedings.  On 12 June 2001 a human rights claim was lodged with the Secretary of State on the applicant’s behalf; that, too, was refused but after further representations that refusal was withdrawn on 2 February 2004.  However, a further decision letter was issued on 25 February 2004 refusing the applicant’s application for leave to remain in the United Kingdom on human rights grounds.   That generated a further right of appeal under Section 82 of the Nationality Immigration and Asylum Act 2002.  The applicant issued a Notice of Appeal; the Secretary of State sent a supplementary refusal letter on 17 March 2004.  The applicant’s appeal was dismissed by an adjudicator. However, he obtained permission to appeal to the Immigration Appeal Tribunal (“the IAT”).  That grant of permission took effect as an order for reconsideration under transitional statutory provisions ushering in the new 2004 statutory regime by force of which the adjudicators and the IAT became the AIT.
3.	On 9 January 2006 the AIT concluded that the adjudicator in the human rights appeal had perpetrated an error of law relating to the reliability of certain documentary evidence. Accordingly, the AIT directed a full reconsideration of the merits of the human rights appeal.  That was heard on 16 August 2006 leading to the determination of 1 September 2006 now sought to be appealed.
4.	The issue for the AIT was whether the applicant would face ill treatment in violation of Article 3 of the European Convention on Human Rights were he to be returned to Sri Lanka.  The AIT said this: 
“We consider that we are in some difficulty with regard to a lack, despite the amount of time that has passed, of clear evidence as to the nature of the offences in relation to which the appellant was detained. Nobody has managed to provide us with chapter and verse of Regulations 25 (1) and 32 of the Emergency Regulations and therefore we do not know what the nature of the authorities’ interest in the appellant was when he was arrested.  It would appear to have been in that context rather than on account of having exited Sri Lanka illegally since the detention appears to have been under the Emergency Regulations rather than under the Immigration and Emigration legislation.  However, it is not without significance that though he was detained for twenty two days he was released on bail and as we have set out above there appears to have been little urgency in bringing him back to court thereafter.  This is hardly indicative of a high level of interest on the part of the authorities towards the appellant.  It is to our mind very difficult to say what if any ongoing interest in him there would be in that regard.
“It may well be however that he would face a risk of prosecution for having left Sri Lanka illegally the second time, and with regard to breaching his bail conditions and we accept that there is a likelihood that he will be prosecuted for that.  We accept therefore that he faces a period of time in detention prior to trial and might well be in prison thereafter.  However the objective evidence which we have set out above concerning prison conditions does not indicate a level of risk of ill-treatment such as to indicate a real risk of breach of the appellant’s Article 3 rights.  We bear in mind what Ms Bayati says about the evidence of torture but is clearly the case that at least to an extent torture takes place at police stations and in custody in order to obtain admissions and confessions and there is nothing for the appellant to admit or confess as we understand the situation.  With regard to any interest the authorities may have had in him concerning LTTE involvement, in 1998, he was released on bail and subsequently has been out of the country for a number of years and it seems to us far more likely that any interest in him would purely be on account of having left illegally and having broken the terms of bail.  Though there is clearly evidence of ill-treatment in custody for a person such as the appellant, we do not consider that the evidence indicates the kind of systematic ill-treatment that it is necessary to show for there to be seen to be a real risk of breach of his Article 3 rights on return.  As a consequence we conclude that he has not made out his claim and his appeal is dismissed.”
5.	The applicant through Ms Jegarajah of counsel seeks permission really on two bases.  First, the applicant does not have to show that torture or ill treatment is “systemic”, only that there is a real risk that he will be exposed to it; see Batayav [2005] EWCA Civil 1489 per Sedley LJ; compare Selvaratnam [2003] EWCA Civ 121 per Buxton LJ.  Secondly, it is said the welter of evidence showing that torture is practised upon detainees in Sri Lanka cannot be brushed aside on the footing that if there is nothing for the applicant to confess, as it were, then there is no risk that he will be tortured into making a confession.  
6.	Without expressing any view whatever on the merits, there is no doubt that there is a great deal of substantial material about the use of torture or at any rate the infliction of ill treatment in Sri Lanka.  Ms Jegarajah produced a new bundle today collating the objective country material, as I think she was asked to do by Sir Henry Brooke in the event that the application were to be renewed.  
7.	It seems to me at least to be arguable that the AIT’s views as to the likelihood of torture being practised in this case are simply an inadequate response to the material that was before them.  At any rate it is arguable that some more careful and fuller reasoning was required.  
8.	In those circumstances, not without a degree of hesitation, it seems to me that the applicant is entitled to permission to appeal and on those grounds I would grant it.
Lord Justice Carnwath:  
9.	I agree.

Order:  Application granted.