MM (Sri Lanka) v Secretary of State for the Home Department [2013] EWCA Civ 391

Case No C5/2012/2293[2013] EWCA Civ 391
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
[AA/10373/2011]
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday, 6 February 2013
Before
LORD JUSTICE TOULSON
Between
MM (SRI LANKA)AppellantSECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Parminder Saini (instructed by Nag Freshlaw) appeared for Appellant. for The Respondent did not appear and was not represented.
Judgment
[1]This is a renewed application for permission to appeal against a decision of Upper Tribunal Judge Spencer dated 20 June 2012, rejecting the appellant's appeal against the Home Secretary's refusal to vary his leave to remain in the UK. The appellant had claimed he was entitled to remain on asylum and human rights grounds and on humanitarian protection grounds. This claim was rejected by the Home Secretary.[2]The appellant is a citizen of Sri Lanka. His case in short was that he had come to the adverse attention of the Sri Lankan authorities because in the course of running the family business, a rice mill, he had supplied produce to the LTTE. This has led to suspicion that he was an LTTE supporter. He had been arrested, detained, tortured and interrogated about his involvement with the LTTE. In June 2009 his father had secured his release by payment of a bribe, and it was his case that he was required to continue to report to the authorities and did so up until two weeks before leaving Sri Lanka. He left Sri Lanka on 9 September 2009 flying from Colombo Airport on his own passport. He did not claim asylum until almost two years after his arrival in the UK.[3]In dismissing the appeal Judge Spencer attached an importance to the fact that he had been able to leave Sri Lanka on his own passport. In paragraph 15 the judge said:
"The appellant claimed that he was able to leave the airport notwithstanding that he had not signed on for two weeks because his details had not filtered through. On his account, however, his photograph was taken on arrest on 2nd April 2009 and his fingerprints and photograph have been taken by the TID when he was released on 15th June 2009. If it were the case that he was suspected of being a terrorist, in my view it is most inevitable that those details would have been recorded at the airport by 9th September 2009."
This conclusion that it was virtually inevitable that his details would have been recorded at the airport, and that he would have been unable to leave Sri Lanka in the way that the appellant claimed, would have affected significantly the judge's entire view of the claim.[4]The criticism made by Mr Saini as involving a material error of law is that the judge did not pay any regard to Country information material about exit procedures at the airport, although this had been placed before him and specifically referred to in Mr Saini's skeleton argument.[5]The point, in brief, is that exit checks at the airport are carried out by immigration officers, not the police, and the circumstances in which immigration officers will stop somebody from boarding an aircraft when they have a valid passport are limited. In his skeleton argument before Judge Spencer at paragraph 3.10 he drew attention to the February 2010 COIS report, which stated at paragraph 33.05:
"A further letter from the BHC, Colombo, dated 1 October 2008, reported: 'As far as we have been able to establish, Immigration officers are notified [of bail/reporting conditions] only when court decides to impound the suspect's passport or an arrest warrant is issued, and there is no other mechanism to ensure that the Immigration Officers are aware of such instances. Apart from these Court powers, Immigration Officers have no power in law to prevent persons embarking. The other method, which is rare and case specific, is that State Intelligence Service (SIS) can inform Immigration Officers of individuals suspected of terrorist activity and of those on a wanted list. Without court sanction the Immigration officers are powerless to put an individual in detention if they are otherwise satisfied that they have a right to enter or live in Sri Lanka."
The reference to "right to enter" or "live" in Sri Lanka would appear to be more naturally a reference to persons seeking to enter the country, whereas the earlier passage is clearly a reference to embarkation.[6]It is submitted that if the judge had paid regard to that material, he could not properly have concluded that it was virtually inevitable that the appellant would have been unable to leave the airport in the way that he claimed. On the contrary, it would have been highly likely that the appellant, as a person in possession of valid passport, would have been able to leave the airport as he claimed. At least, submits Mr Saini, it was incumbent on the judge to address that point which, on the face of his determination, he appears not to have considered. That, submits Mr Saini, then coloured his entire approach to the case because other findings were connected with his disbelief that the appellant could have left the country in the way that he claimed.[7]I am persuaded that the appellant does have a real prospect of showing that there was in that regard a material error of law. Moreover, it is a case of some potential importance. If there is a significant difference between the attention somebody may receive on entering the country and the checks on exit that are capable of affecting other cases than this. The position today is perhaps more fully explained in the COI report, which superseded the version in existence at the time of the appeal.[8]For those reasons, I will grant permission to appeal on Grounds 1 and 2.[9]Ground 3 is of much less significance and it does not appear to me to merit permission to appeal.[10]Ground 4 is in itself a small point, but not insignificant. The judge said that if the appellant's father had been able to secure the appellant's release by payment of a bribe, then any documentation about his detention would have been deleted from the records. Mr Saini submitted that this was frankly speculation on the part of the judge and that, while there is a large amount of background information with which tribunals are well familiar about widespread corruption in Sri Lanka, there was no material to support the conclusion that payment of a bribe to secure somebody's release would be likely to carry with it the destruction of any documentation related to the appellant’s detention. Mr Saini submitted that it is one thing to procure somebody's release; it is another thing to enter the system and destroy records.[11]This is not a point on which I would have given permission to appeal if it were the only ground, but since I am giving permission to appeal on Grounds 1 and 2 and since there does appear to be arguably some substance in this ground which will not add materially to the time taken by the court, I will grant permission to appeal also on Ground 4.[12]I say nothing about Grounds 5 and 7; they were not matters of importance.[13]I must refer to Grounds 6 and 8. The claimant put forward what purported to be an arrest warrant and a summons issued against him after he had left Sri Lanka. The judge did not accept that they were genuine documents. The point taken by Mr Saini in relation to this is that the respondent had never sought to suggest that they were, on their face, apparently bogus. The judge said very little in relation to the arrest warrant, but in relation to the summons he said at paragraph 19:
"I have considered the documents that the appellant has adduced in evidence. The summons merely requires the appellant to attend "
For suspected of rendering assistance to LTTE and harbouring Terrorists" but no provision of the Sri Lankan Prevention of Terrorism Act or penal code is mentioned.”[14]In my view, that is a very telling point against the authenticity of the summons. Mr Saini submits that if the judge considered that this was, on the face of the document, a very telling point against its authenticity, this ought to have been raised so that Mr Saini had an opportunity of dealing with it. The point had never been suggested by the respondent and the first time that point was raised was when the determination was issued.[15]Mr Saini takes a related point, which is that when an appellant has produced documents which the respondent considers to be bogus, there is an onus on the respondent to indicate this. Mr Saini refers in particular to a judgment of the Strasbourg Court in Singh v Belgium ECHR 362 [2012], where the court referred to the need for domestic authorities to carry out proper investigation of the authentication of identity documents, given the importance of Article 3 and the irreversible nature of the harm likely to be caused in the case of realisation of the risk of ill-treatment. The specific reference there was to identity documents, but the reasoning acceding to Mr Saini's submission is similarly applicable to documents of the present kind.[16]There seems to me to be sufficient potential force in that submission to make it right for me to give permission to appeal also on Grounds 6 and 8.[17]For those reasons, I will grant permission to appeal to the extent which I have indicated.[18]The matter should go to a court of three judges; it may include one High Court judge.

Order

Application granted