H-MOH-V1
                                                                                          [2004] UKIAT00049 V (Sri Lanka)

IMMIGRATION APPEAL TRIBUNAL

Heard at : Field House	Determination Promulgated	
on :  15 April 2003		
Delivered in Court : 15 April 2003	.....22 March 2004 ................................	

Before:

MR J BARNES – Chairman
MR C MATHER
MRS A CROSS de CHAVANNES

between
The Secretary of State for the Home Department
Appellant

and

Respondent

Representation:

For the Appellant:		Mr S Bilbe, Home Office Presenting Officer.
For the Respondent:	Ms P Gandhi of Counsel, instructed by Ratna & Co.

DETERMINATION AND REASONS

1. 	The Respondent is a citizen of Sri Lanka born on 11th November 1971 and he is of Tamil ethnicity.  He arrived in the United Kingdom on 18th October 2001 and claimed asylum on the day of arrival with his wife as his dependant.  Following submission of a witness statement and an asylum interview his application was refused by the Secretary of State for the reasons set out in a letter dated 21st January 2002.  On 28th January 2002 the Secretary of State issued directions for his removal to Sri Lanka following refusal of leave to enter after refusal of his asylum application.  He appealed against that decision on both asylum and human rights grounds and his appeal was heard on 2nd September 2002 by Mr P Digney, an Adjudicator, who allowed his appeal on both asylum grounds and under Article 3 of the European Convention.  His claim that removal would be in breach of his Article 8 rights to family life in this country was rejected by the Adjudicator and there is no appeal before us in that respect.  

2.      The Secretary of State was granted leave to appeal to the Tribunal on the basis that in allowing the appeal the Adjudicator had failed to consider the Respondent’s claim on the basis of the objective situation as at the date of hearing. He then goes on to give further details in the grounds as to the basis of that objection and to submit that on the factual evidence the Adjudicator’s finding is unsustainable.  

3.    The brief facts of the Respondent’s experiences in Sri Lankan are set out at paragraph 6 of the Adjudicator’s determination in the following terms:

	“The Appellant was a Roman Catholic Tamil who assisted his father as a fisherman.  In 1994 his brother Antonisalas Anandakumar was forcibly made to join the LTTE.  The Appellant was forced to assist the LTTE and this involved rowing their boats, something that he did on three occasions.  The Appellant suffered harassment from both the army and the LTTE in the period up to 2001.  On 5th July of that year he was arrested by the army and detained for about a month.  He was tortured during this period.  He was tied to a tree and beaten and water was poured into his mouth whilst he was questioned.  He was asked about the LTTE and his brother.  The army did not know that his brother had been arrested in the south.  The Appellant admitted that he had assisted the LTTE under duress.  He was kicked in the stomach and beaten with the butt of a gun.  He was also beaten with firewood and a hot metal bar.  The soldiers were usually drunk when they beat him.  

	Whilst he was detained his wife was arrested, raped and physically ill-treated by three army officers.

One of his uncles contacted the local priest, who arranged for his release through the payment of a bribe.  The priest told him that he should leave the area.  After his release his uncle contacted a member of the EPRLF who arranged for the Appellant and his wife to travel to Colombo.  There they went to stay with a friend of his father called Robin who said that the Appellant’s brother had escaped from the LTTE and stayed with him.  He had been arrested by the police in a roundup.  Robin did not want the Appellant to stay with him for this reason and arranged for the Appellant and his wife to leave the country.  They came to this country via Moscow”.

4.      It is perhaps  pertinent at this  point to deal  with the  situation of  the Appellant’s brother.  There was evidence before us, as before the Adjudicator, in the form of a certificate from the International Committee of the Red Cross that the brother had been arrested on 11th February 2001 and subsequently released from Kalutura prison on 11th September 2001 having been seen on three occasions during that period by representatives of the International Committee of the Red Cross.  It also appears that he had made a formal complaint that he had been unlawfully arrested which was to be investigated by the Presidential Committee for the unlawful arrest and other harassment.

5.	In his findings, which are dealt with at paragraph 9, the Adjudicator deals with the matter in a series of different points.  The first  that he deals with is what he considers to be the risk in the north of Sri Lanka to the Respondent.  He puts it in these terms:

	“The Appellant was arrested, detained and tortured in the north.  Were he to return he would be at risk of suspicion of having been with the LTTE during his absence and would be at risk of persecution similar to that which he previously suffered”.

	The Adjudicator then goes on to consider whether the Appellant would be at risk in Colombo.  He does this in far greater depth and concludes, after lengthy analysis in his determination, that there is no real likelihood of persecution in Colombo merely because of what happened to the Respondent in the north.  He deals next with the question of scarring and whether as a discrete issue this would lead to any potential risk to the Respondent.  He says that there is nothing visible by way of scars that would raise the suspicions of an investigating officer.  Finally he turns to the issue of internal flight and in that context concludes that because of the fact of the rape of the Respondent’s wife and that the sight of people similar to those who had carried out that act would be likely to cause serious psychological harm, it is proper for him to take this into account in considering whether relocation would be unduly harsh.  He says that suffering caused to someone who is conscious of his wife’s suffering, and the constant reminder of the rape that will be produced, makes it unduly harsh to expect the husband to relocate, although but for this consideration he would not have concluded that it was unduly harsh to return the Respondent to Colombo.

6.	The first issue which we have to consider is whether the first and primary finding of the Adjudicator as to risk in the north of Sri Lanka is sustainable on the evidence that was before him.  In his findings of fact at paragraph 7 of his determination he says that he has looked at the Appellant’s evidence and attempted to decide whether it is consistent and coherent and that he has also looked at that evidence in the light of the objective evidence.  He then deals with issues as to credibility which had been raised in the refusal letter but says that the Respondent’s story remained consistent.  The medical evidence supported that story as did the objective evidence and he saw no reason not to accept the history as related by the Respondent and his wife as being correct.

7.	In the course of her submissions to us Ms Gandhi sought to rely on the fact that the Adjudicator twice referred to the objective evidence but it is quite clear from the context of paragraph 7 of the determination that he is saying that he considered the objective evidence in relation to the support that it gave for the Respondent’s account.  In other words, he was looking at it from a historic perspective.  We see no basis on which what he had said at paragraph 7 can reasonably be otherwise interpreted, and we do not accept Ms Gandhi’s submission that what is said in that paragraph must mean that he had considered the current country situation in relation to his primary finding.  It will be apparent from the very short way in which that primary finding is expressed that the only reason the Adjudicator gives for considering that the Respondent would be at risk is that he might be under suspicion of having been with the LTTE during his absence.  What is to our mind quite clear is that the Adjudicator has not sought to give any reason for his primary finding which suggests that he has looked at the supposed risk in relation to the situation in Sri Lanka at the date of his determination.  Indeed it is interesting to note that when he deals with the second issue of whether there is any risk to the Respondent in Colombo he makes a specific finding that he accepts the proposition that all Tamils returned to Sri Lanka have a well-founded fear of persecution in their country is not arguable.  

8.	By the time that he heard this appeal there had been a concluded ceasefire in Sri Lanka effective from February 2002.  There had been a number of important developments which had been recorded in the country evidence which we are satisfied was before him, because this included the April 2002 CIPU Assessment and the report of the visit made by the Home Office to Sri Lanka in March 2002.  Those were primarily the issues which were considered by the Tribunal in the case of Jeyachandran [2002] UK IAT 01869.  The Tribunal in that case, which was heard on 21st May 2002 and therefore long before the hearing before the Adjudicator, summarised the situation then applying in Sri Lanka in the following terms at paragraph 5 of the determination:

	“The situation has changed in recent months.  There was a ceasefire in February of this year and the most recent CIPU Report for April 2002 records some of the relaxations that have occurred since that ceasefire.  Paragraph 3.67 notes that in April 2002 the LTTE opened a political office in a government held area in the north of the country and that that had been inaugurated under the ceasefire.  There had been permission for LTTE cadres wearing cyanide capsules to move back to an LTTE controlled area and those who were clearly recognised as being LTTE activists were permitted to move around unmolested.  On 13 April the LTTE signed a pact with the Sri Lankan Muslim Congress and agreed that nearly 100,000 Muslims expelled from the north by the Tamil Tigers would be allowed to return.  All this indicates the change of the situation and gives hope that the situation will stabilise to such an extent that the persecution which has existed in the past and the havoc created by the civil war will cease The likelihood of any difficulties on return has also been considered by a Fact-Finding Mission to Sri Lanka which visited that country at the end of March this year and those involved discussed the situation with among others the Director and the Senior Superintendent in the Criminal Investigations Department.  The report records that if a returnee were not wanted he would not be stopped at the airport.  We underline if a returnee were not wanted because there is of course a finding in this case that the Respondent was wanted.  He went on a computer which holds the name, address and age of a wanted man.  The police purely go on records, scars would not make a difference and the authorities would not make a decision on this basis.”.  

A little later at paragraph 8 of the same decision the Tribunal said:

“We certainly are of the view that in the present situation and having regard to the present trends it is only the exceptional case that will not be able to return in safety”.  

9.        What is clear to us from our reading of the determination of the Adjudicator is that he does not apparently seem to have taken into account any such matters although as we say the Country Information containing that evidence was before him. 

10.    It has long been accepted that our jurisdiction is not limited to questions of law.  It was dealt with in the following terms in Borrisov v Secretary of State for the Home Department [1996] Imm AR 524 where Lord Justice Hurst said this at page 535:

	“Thus the jurisdiction of the Immigration Appeal Tribunal is not limited to questions of law and it is within the scope of their jurisdiction for them to review, if they see fit to do so, a Special Adjudicator’s conclusions of fact, although no doubt this power will be sparingly exercised and, in any event, in accordance with general principles the Immigration Appeal Tribunal will naturally be most reluctant to interfere with the finding of primary fact by the Special Adjudicator which is dependent on his assessment of the reliability or credibility of a witness who has appeared before him”.

	A little later in the judgment there was a quotation with approval from an earlier decision of Assah v Immigration Appeal Tribunal [1994] Imm AR 519 in which Lord Justice Millet had said:

	“In the final analysis an Appellate Tribunal such as the Immigration Appeal Tribunal not only can but should reverse a finding of fact if it is unsustainable”.

11.	In the course of her submissions to us Ms Gandhi has referred to the recent decision of the Court of Appeal in Oleed v Secretary of State for the Home Department [2002] EWCA SIV 1906.  That was a case in which the court appears to have been concerned that there should be an even-handed approach as between both parties to appeals before the Immigration Appellate Authorities.  What was said by Lord Justice Schiemann at paragraph 32 was this:

	“I accept that the Tribunal examines the situation in the country from which the refugee is fleeing as at the date of his determination.  However, in the present case in my judgment there was nothing wrong with the Adjudicator’s determination.  There was therefore no reason to appeal it and it would be wrong for the Home Secretary on the back of an appeal which has been dismissed to seek to re-examine the threat to the refugee with reference to a date later than the Adjudicator’s determination.  To permit this would merely encourage appeals by a party who has no ground for appeal but hopes that the situation would change sufficiently to enable him to advance different arguments on different facts on appeal.  Such procedures would not be in anyone’s interest”.

	It appears that the Court of Appeal in that decision had in mind very much that, where there has been a change in the country circumstances subsequent to the Adjudicator’s decision, it would be wrong for the Secretary of State to be allowed to reopen the matter on the basis that determination at a later date would change the basis on which the decision was to be made.  That in our judgment is likely to be a very rare situation, particularly bearing in mind that the Secretary of State, should he wish to appeal against a decision of an Adjudicator, is under a very short time limit within which to make such an application.  He has ten working days from the promulgation of the decision of the Adjudicator to him and it is anticipated that in the vast majority of cases such promulgation will be shortly after the Adjudicator’s hearing of the appeal in question.  For that reason it seems to us that the ratio in Oleed must necessarily be of very limited application in asylum and human rights appeals.  Nevertheless, it is quite clear that it has no application whatsoever to the present case where the complaint made by the Secretary of State is that the Adjudicator simply failed to take into account the evidence which was actually before him and, in so doing, arrived at a finding which was on the basis of that evidence unsustainable at the time of his determination.  The fact that we look at the situation subsequently at the date of the appeal before us makes no difference to the essential basis of the challenge in the present case.  Whilst we have considered everything that Ms Gandhi has put before us on this point we are satisfied that the challenge of the Secretary of State is well-founded and that the primary finding of the Adjudicator is not only insufficiently reasoned, but also clearly fails to take into account background evidence which was before him and which should have been taken into account as part of his overall reasoning in arriving at his conclusions.  For those reasons we consider that the proper course is for us to reconsider that primary finding on the basis that the factual findings as to the past experiences of the Respondent as found by the Adjudicator are accepted.  

12.	Approaching the appeal on this basis, the issue before us is whether there is a reasonable likelihood that the Respondent will, in the changed circumstances which now exist in Sri Lanka, be reasonably likely to be persecuted by reason of his ethnicity or imputed political opinion as a Tamil, or to suffer treatment which is in breach of his Article 3 rights, namely torture or inhuman or degrading treatment or punishment, if he is now returned.  We look at this from the point of view of the situation in his home area.  

13.	Mr Bilbe has drawn our attention to the continuing progress which has taken place in Sri Lanka in the ensuing period and, indeed, this is reflected in the many decisions which the Tribunal has reached in relation to the situation of Tamils at the present time.  Looking at the position as reflected in the October 2002 CIPU Assessment, there is clearly a continuing improvement in the situation in Sri Lanka following the ceasefire and the current peace talks.  Although we are mindful that Ms Gandhi has referred us to the recent occasion where there was a sinking of an LTTE vessel by the Sri Lankan Navy, and that this caused a temporary stall in the process, nevertheless in many ways that seems to us to reinforce the degree of progress which has been made and to be an event which is wholly out of keeping with the general tenor of events in Sri Lanka.  These are dealt with at paragraphs 4.56 onwards in the current assessment.  They show the reopening of major routes to the north and easing of travel restrictions.  They show that a senior LTTE member has been allowed to make a public speech in Jaffna.  They show that for the first time in seven years the LTTE has been allowed to open political offices in the north of the island since June 2002, and at paragraph 4.73 record as follows:

	“On 29 July 2002, the SLMM issued a statement expressing their satisfaction about the progress of the ceasefire agreement, mentioning that the Sri Lankan government and LTTE were getting closer to lasting peace.  The statement went on to say that both parties successfully refrained from military operations during the ceasefire, most fishing restrictions had been removed and freedom of movement for both parties and the public had been greatly enhanced, among other benefits”.

	The SLMM is of course the Sri Lankan Monitoring Mission and speaks with some authority.  In addition we note that the former detentions, under the Emergency Regulations which have now lapsed, have ceased, and that the Prevention of Terrorism Act is no longer used for the purposes of arrest and detention.  There is a general commitment in the terms of the ceasefire agreement to abide by lawful actions only and to outlaw the problems which have bedevilled the situation in Sri Lanka for many years past.  In broad terms that has been followed and that is the position which we have to take into account in relation to the existence of a reasonable risk or otherwise for this Respondent.

14.	Ms Gandhi relied upon the letter from the UNHCR of 30th January 2003 which set out the UNHCR position in the following terms:

	“Currently our position is that although steps towards peace have been taken in Sri Lanka recently, it is still premature to advocate that the situation has reached a satisfactory level of safety to warrant the return of all unsuccessful applicants to Sri Lanka.  In this regard UNHCR has been aware that returning Tamils are potentially open to risk of serious harm similar to those generally encountered by young male Tamils in certain circumstances.  This risk may be triggered by suspicions on the part of the security forces founded on various factual elements relating to the individual concerned including the lack of identity documents, lack of proper authorisation for residents and travel, the fact that the individual concerned is a young male Tamil from an uncleared area or the fact that the person has close family members who are or have been involved with the LTTE”.

	Ms Gandhi placed particular reliance on the last point saying that the arrest which had been suffered by the Respondent had occurred because of his brother’s LTTE connection and that his brother too had been subject to arrest.  That particular submission must in our view be tempered by the fact that it is perfectly clear from the evidence produced that the Appellant’s brother was released and, indeed, had complained about unlawful detention to the Sri Lankan authorities in the course of his detention.  That is clearly also a matter of public record and it seems to us must be taken into account in assessing whether his brother’s past connection with the LTTE is likely to endanger this Respondent in any way.  It is also clear that the letter concerned, which simply reiterates part of what was said in an earlier letter of March 2002 antedating Jeyachandran, is dealing with the position which may apply to young male Tamils and that is a description which is perhaps not wholly appropriate for this Respondent.  Curiously, it purports to deal with some only of unsuccessful asylum applicants; it does not therefore purport to apply to all , and in any case it is curious that the UNHCR should seek to give such advice in relation to some of those who, by definition, will have failed to demonstrate a current well founded fear of persecution in their own country. Moreover, it considers the position of young male Tamils in Sri Lanka (apparently ignoring the evidence as to increasing freedom of movement which is now recorded in the country background evidence since the March 2002 letter from which it is extracted) but that is not the position of this Respondent at the moment.  He will be returned, if unsuccessful before us, with proper identification documents obtained through the Sri Lankan Embassy in London.  There is no reason why on arrival he should not then acquire proper current documents from the Sri Lankan authorities and, as we know, there is now no restriction since the reopening of the roads to the north which would prevent him from returning to his home area if he should so desire.  For those reasons although we naturally pay due regard to the reservations by the UNHCR it does not seem to us that on those facts this particular Respondent is reasonably likely to come to the adverse attention of the authorities.

15.	Finally we should mention that Ms Gandhi referred us to the recent decision of the Court of Appeal in Selvaratnam [2003] EWCA SIV 121 in which it was said that the Tribunal had failed to pay attention to the particular circumstances of the Respondent.  We hope that that is a charge which cannot be levied against us having regard to what we have said above, but we note that in that particular case Mr Selvaratnam had signed a confession to LTTE membership whilst detained and that this was considered by the Court of Appeal to put him at a specific risk over and above that which would apply to the majority of returning Tamils.  Such is not the case, of course, in this Respondent’s case.  He was released, albeit by a bribe, but it has been held by the Tribunal that release in such circumstances is not reasonably likely to mean that he will be regarded as still wanted or as an escapee, and there is no evidence at all before us that he is currently on a wanted list in Sri Lanka which would be the circumstance which might bring him into some position of danger.

16.	For the above reasons we are satisfied in the present appeal that the Adjudicator’s primary finding was unsustainable and we substitute for in our own finding that on the factual basis of this Appellant’s claim, and having due regard to the country background evidence, there is no reasonable likelihood that he will be subjected to persecution or treatment in breach of his Article 3 rights if now returned to Sri Lanka.  Accordingly, it follows that the Secretary of State’s appeal is allowed.

J BARNES
VICE PRESIDENT