UB (Sri Lanka) v Secretary of State for the Home Department [2017] EWCA Civ 85

Case No C5/2015/0753/AITRF

[2017] EWCA Civ 85

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBERS)

Deputy Upper Tribunal Judge Pickup

AA/05646/2014

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 22/02/2017

Before

THE PRESIDENT OF THE FAMILY DIVISION

LORD JUSTICE DAVID RICHARDS

LORD JUSTICE IRWIN

Between

UB (SRI LANKA)Appellant

SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent

Mark Henderson (instructed by Birnberg Peirce & Partners) for Appellant

Ivan Hare (instructed by Government Legal Department) for Respondent

Hearing Hearing date: 9 February 2017

Judgment

Lord Justice Irwin :

Introduction

[1]In this case the Appellant is a national of Sri Lanka. He has made an asylum claim based on his previous involvement with the Liberation Tigers of Tamil Eelam [“LTTE”] whilst in Sri Lanka, his participation in pro-LTTE demonstrations in the United Kingdom and his claimed membership of the Transnational Government of Tamil Eelam [“TGTE”]. His appeal turns on a single ground. Policy guidance issued by the Home Office on 28 August 2014 was not brought to the attention of either the First-tier Tribunal [“FTT”] or of the Upper Tribunal [“UT”]. The Appellant seeks permission to adduce the material now, and submits that since the material was issued by the Respondent, it was the responsibility of the Respondent to ensure that it was drawn to the attention of the Tribunals concerned, that the guidance was material to the decision and that its non-disclosure gave rise to procedural unfairness. As a consequence, the Appellant seeks an order quashing the decision.

The Facts

[2]The Appellant came to the UK in 2007 as a student. In 2010 and 2011, he made successful applications for further leave to remain. He returned to Sri Lanka in 2010 but following that journey (to his father’s funeral) he has not again visited Sri Lanka. He made an application for asylum on 24 June 2014. The Respondent dismissed the application on 23 July 2014. The Appellant appealed to the FTT pursuant to Section 82(1) of the Nationality, Immigration and Asylum Act 2002. His appeal was on the basis that he was a refugee and that his return to Sri Lanka would constitute a breach of the Geneva Convention. He fears persecution if returned due to his previous involvement with the LTTE and to the fact that since he came to live in the United Kingdom he has participated in various demonstrations against the Sri Lankan government. Critically, he provided evidence to the Tribunal that he had an involvement with the TGTE. The Appellant also seeks to remain as a matter of humanitarian protection.

[3]The parties submitted a number of documents before the FTT for a hearing scheduled for 10 September 2014. At the hearing, the Appellant was represented by counsel and the Respondent by a Home Office Presenting Officer. Neither party referred to the Home Office issued policy guidance and conjoined Country of Origin Information [“COI”], published on the Home Office website on 28 August 2014 and entitled “Tamil Separatism”.

[4]On the basis of the documentary and oral evidence presented to the First-tier Tribunal Judge Wyman, he dismissed the claim. The judge paid close regard to the country guidance case GJ and Others (post-civil war: returnees) Sri Lanka 2013 CG

[2013] UKUT 00319 (IAC)

, which set out detailed guidance as to the categories of individuals “at real risk of persecution or serious harm” on return to Sri Lanka. Those groups were summarised as being: i) Individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they are, or are perceived to have, a significant role in relation to post conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka. ii) Journalists or human rights activists who have criticised the Sri Lankan government, in particular its human rights record … iii) Individuals who have given evidence to the Lessons Learned in Reconciliation Commission implicating the Sri Lankan security services, armed forces or the authorities in alleged war crimes. iv) A person whose name appears on a computerised “stop” list accessible at the airport, comprising a list of those against whom there is an extant court order or arrest warrant. Individuals whose names appear on a “stop” list will be stopped at the airport and handed over to the appropriate Sri Lankan authorities, in pursuance of such order or warrant.

Judge Wyman recited that guidance, including the observation in GJ that:

“The authorities know that many Tamils travelled abroad as economic migrants and that almost everyone had some level of involvement with the LTTE during the civil war. In post-conflict Sri Lanka, an individual’s past history is relevant only to the extent that it is perceived by the Sri Lankan authorities as indicating a present risk to the unitary Sri Lankan state or government.”

[6]It is not necessary for me to set out the competing submissions on fact. Judge Wyman made careful findings. He accepted the Appellant is a Sri Lankan, born on 26 September 1983. He accepted that he had joined the LTTE in 2003 and spent three years carrying out military service. This time coincided with the ceasefire in the country, and the Appellant would not have come into conflict with the Sri Lankan authorities during this period. The Appellant had not alleged that he was arrested or detained by government forces or services whilst undertaking his military service. Judge Wyman went on as follows:

“88. The Appellant has provided two letters from Mr Sivaratnam confirming that he is involved in the Transitional [sic] Government of Tamil Eelam. The first letter was a handwritten letter dated 28 June 2014 which appears in the appellant’s bundle at page 79. This is a handwritten letter with various spelling mistakes. The second letter is dated 8th September 2014 and is a typed letter from Mr Sivaratnam. Both letters state that the appellant actively takes part in rallies, demonstrations and meetings against the government. The letter states that the appellant also distributes leaflets and stands as a volunteer during the rallies. 89. The appellant has also provided numerous photographs showing him attending various rallies and demonstrations, often carrying a banner with headlines such as “UK stop helping Sri Lanka abduct Tamil children” or “Tamil Eelam are not terrorists”

. Some of these photographs have been published in Demotix. None of the photographs show him as an organiser of the rally but simply as somebody who attends the various rallies. The photographs in the bundle are variously dated 2014. These include a large demonstration in Glasgow where a demonstration was held to condemn participation of Sri Lanka in the Commonwealth Games. … 91. The former Tamil areas in the diaspora are heavily penetrated by the security services. Photographs are taken of public demonstrations and the government of Sri Lanka may be using face recognition technology. The key question which concerns the government of Sri Lanka is the identification of Tamil activists working for Tamil separatism and to destabilise the unitary Sri Lankan state. However the court held that attendance at demonstrations in the diaspora alone is not sufficient to create a real risk or a reasonable degree of likelihood that a person will attract adverse attention on return to Sri Lanka. 92. Whilst I accept that the appellant has attended various demonstrations both in London and within the United Kingdom, I note that at paragraph 351 of GJ it held that “attendance at one, or even several demonstrations in the diaspora is not of itself evidence that a person is a committed Tamil activist seeking to promote Tamil separatism against Sri Lanka”. 93. I note the appellant is not a leader in any of the communities within which he supports. His role appears to be that of very low level activity in simply attending demonstrations and giving out leaflets. He has not claimed that he is involved in public speaking, funding the LTTE or any other role. Even the letter from Mr Seevaratnam MP only claimed that he attends demonstrations, distributes leaflets and stands as a volunteer during rallies. 94. I therefore do not find that the appellant’s activities in the United Kingdom reaches the threshold to be granted asylum in the United Kingdom. Nor do I find that the appellant is a “committed Tamil activist working for Tamil separatism and to destabilise the unitary Sri Lankan state”. I find the appellant wishes to demonstrate his opposition to the government – but this is significantly different from somebody who is actively working to destabilise the government.”

[7]Judge Wyman went on to deal with evidence from the Appellant that during his return to Sri Lanka in January 2010 he was arrested, questioned, detained and tortured by government forces. His case was that he was only released following a bribe being paid by his uncle through an agent. Judge Wyman noted discrepancies in the accounts given by the Appellant. He did find that the Appellant had been arrested from his family home the day after he arrived, since that part of his story was corroborated. However, the Judge rejected the account of extended detention and of torture. The Judge accepted that the Appellant was interrogated about his activities in the United Kingdom and it was suggested he had taken part in anti-government demonstrations. However, the Judge rejected the suggestion that the Appellant had been questioned about collecting money for the LTTE and indeed concluded there was no evidence “whatsoever that he has collected money specifically for the LTTE”. The Judge rejected the evidence that the Appellant was released on payment of a bribe. He noted that the Appellant had been in the United Kingdom for four years following his return from Sri Lanka before making a claim for asylum, and that much of the evidence adduced to support the asylum appeal originated from the period immediately preceding the hearing before the FTT. On that basis, the appeal was dismissed.

[8]It should be noted that Judge Wyman made no explicit finding as to membership of TGTE.

[9]The Appellant appealed to the UT and the matter was heard on 10 December 2014. In a decision and reasons of 12 December, Deputy UTJ Pickup rejected the appeal, concluding that there was no error on any point of law in the decision of the FTT.

[10]Neither the FTT nor the UT were referred to Home Office policy guidance dated 28 August 2014, entitled “Tamil Separatism”. The guidance is described as:

“Guidance to Home Office decision makers on handling claims made by nationals/residents of … Sri Lanka. This includes whether claims are likely to justify the granting of asylum, humanitarian protection, or discretionary leave … Decision makers must consider claims on an individual basis, taking into account the case specific facts and all relevant evidence, including: the guidance contained with this document; the available COI, any applicable caselaw; and the Home Office casework guidance in relation to relevant policies.”

[11]We were asked to admit this fresh material and agreed to do so de bene esse.

[12]Annexed to the guidance is the text of two letters from the British High Commission in Sri Lanka. This material is authoritative and clearly intended to be read with the guidance. The first letter is dated 16 April 2014:

“Proscribed Terrorist Groups On 1 April 2014, the government of Sri Lanka announced the designation of 16 Tamil Diaspora organisations and 424 individuals under the UN Security Council resolution 1373 on counter-terrorism. The order was issued by the Secretary of Defence. The government asserts that this action has been taken to stop attempts to revive the LTTE. The BHC [i.e. British High Commission] has asked the government of Sri Lanka to provide evidence to support this decision. Among the organisations proscribed are the Transnational Government of Tamil Eelam (TGTE) and the UK-based Global Tamil Forum (GTF) and British Tamil Forum (BTF). When making the announcement on 1 April, Brigadier Ruwan Wanigasooriya said that individuals belonging to these organisations would face arrest under anti-terrorism laws … [T]o date, there have been no known arrests based on membership of one of the newly proscribed groups.”

[13]The later letter is dated 25 July 2014 and the relevant text reads:

“The spokesperson from the DIE stated that returnees may be questioned on arrival by immigration, CID, SIS and TID. They may be questioned about what they have been doing whilst out of Sri Lanka, including whether they have been involved with one of the Tamil Diaspora groups. He said that it was normal practice for returnees to be asked about their activities in the country they were returning from. The spokesperson from the SIS said that people being “deported” will always be questioned about their overseas activities, including whether they have been involved with one of the proscribed organisations. He said that members of the organisations are not banned from returning to Sri Lanka, they are allowed to return, but will be questioned on arrival and may be detained.”

[14]Essentially the appeal before this Court turns on the failure of the Respondent to bring this fresh guidance, post-dating the decision in GJ, to the attention of either the First-tier or Upper Tribunal. It is accepted that the guidance was published on the Home Office website before the hearings took place. It is accepted that the Appellant’s representatives could themselves have brought this material to the attention of the FTT.

Conclusion: Service of the Guidance and Letters

[15]Firstly, I would admit this material definitively in this Appeal, given the obligations on the Respondent I am about to delineate.

[16]In my view there was the clearest obligation on the Secretary of State to serve relevant material and ensure it was before the Tribunals at both levels. In AA (Afghanistan) v SSHD

[2007] EWCA Civ 12

, Keene LJ made the point clear beyond doubt:

“27. [It was submitted by the appellant that] the attention of the adjudicator should have been drawn by the Secretary of State’s representative to the policy on interviewing unaccompanied minors, so as to avoid him being misled: see R v. Special Adjudicator, ex parte Kerrouche [1997] Imm AR 610. 28. As a matter of law, that is right. The Secretary of State should draw relevant parts of his policy to the adjudicator’s attention. Merely because those policy documents are publicly available in print or on a website is not enough: where issues of risk of persecution are involved, a decision to return a person or not to his country of origin should not depend on the diligence of that person’s representatives.”

[17]The point was reinforced by Lord Wilson in Mandalia v SSHD

[2015] 1 WLR 4546

[2015] UKSC 59

. Lord Wilson referred to the judgment of Keene LJ in AA (Afghanistan) and re-emphasised the obligation: “irrespective of whether the specialist judge might reasonably be expected himself to have been aware of it, the Home Office presenting officer clearly failed to discharge his duty to draw it to the tribunal's attention as policy of the agency which was at least arguably relevant to Mr Mandalia's appeal.” (paragraph 19)

[18]It is necessary to distinguish the question whether such policy or guidance should be regarded as material to a case in anticipation, before factual findings have crystallised, from whether it is material to the decision actually reached: in other words whether, viewed in retrospect, the guidance might realistically have affected the outcome. I now address the first.

[19]In my view, this guidance was clearly material and clearly should have been served in advance. One has only to consider the decision letter itself. The Appellant had claimed membership of the TGTE. The decision letter of 23 July 2014 dealt with that claim as follows:

“Associated with the Transnational Government of Tamil Eelam (TGTE) 55. You claim that you are a member of the TGTE and you submitted a letter purported to be from Nimalan Seevaratnam MP and was dated 28/06/2014. It is noted that the letter was hand written and contains grammatical and spelling errors. Irrespective of the poor quality of the letter, it is noted that you were asked questions relating to the organisation, which you claimed to be a member of (Q116-Q124). You were asked to provide the names of some of the officers in this organisation and it is noted that you could only provide the last name of someone you claim to be prime minister of Canada and two others who you claim to be based in the UK. Consideration has been given to your responses and it is found to be inconsistent with someone who claims to not only be a member of the organisation, but also attends meetings. It is therefore not accepted that you have any links with this organisation.”

[20]Thus the factual question as to whether the Appellant was a member of the TGTE was raised by the Appellant and met in a straightforward fashion by the Respondent’s decision letter. The possible implications of membership, as affected by the letters annexed to the policy guidance, meant this material clearly should have been served.

[21]I deprecate any suggestion that this obligation of service is displaced or diminished by the availability of the material online. Mr Hare for the Secretary of State did not in fact mount this argument, although it seems likely from exchanges before the hearing that he was pressed to do so. He was right to decline such an argument. Apart from the clear obligation in law derived from authority, many appellants in immigration and asylum cases are unrepresented. In a number of cases where there is legal representation, the quality of representation is less than optimal.

[22]The obligation is clear but must not be taken beyond the proper bounds. There is no obligation on the Secretary of State to serve policy or guidance which is not in truth relevant to the issues in hand, and complaints as to alleged failures of disclosure of material which is truly peripheral or irrelevant should readily be rejected.

Conclusion 2: Might this Material have Affected the Outcome?

[23]If the material had been served, then the issue of TGTE membership would have been of more significance. As the matter stood, the FTT reached no conclusion on the point. The Appellant’s argument is that, if it had been accepted that he was a member, then the indication from the High Commission’s letters is that(1) he would be questioned,

(2) he might be arrested, and

(3) he might be detained. If detained, the guidance in GJ points to a risk of mistreatment.

[24]In truth, consideration of the risk to the Appellant turns not merely on him showing that he was actually a member of the TGTE, but relies on his membership being detected on arrival in Sri Lanka. There is no suggestion that this Appellant is on any list of individuals of interest to the authorities in Sri Lanka. The objective findings by the FTT are clear that any activity by the Appellant in this country, even if observed or recorded, was low level and not likely to carry risks. That activity itself would not demonstrate membership of the TGTE. In addition, I bear in mind the very clear findings that the Appellant lied and exaggerated in alleging mistreatment during his last visit to Sri Lanka, and thus his credibility is low.

[25]For all these reasons, I have hesitated before reaching my conclusion on this issue. However, it seems to me that I cannot quite preclude the possibility that these letters might affect the outcome, and thus that they are “material” to the decision in that sense.

[26]For these reasons, I would allow the appeal.

Lord Justice David Richards:

[27]I agree. The President of the Family Division:

[28]I also agree.