MP (Sri Lanka) v SSHD Case note

MP (Sri Lanka) v Secretary of State for the Home Department [2011] EWCA Civ 362

Background

The First Tier Tribunal (FTT) accepted that MP had worked for LTTE, had been arrested, detained and made to sign a confession before his release.  It held that some of his scars had been caused by torture applied during his period of detention.  However, it was not accepted that the authorities were interested in him on the basis of maps having been supplied to LTTE, or that the authorities visited his parent’s house asking about him or that his wife had been arrested or detained.

MP’s asylum claim was rejected essentially on the basis that he had been released in 2002 without charge and without conditions, had subsequently lived and worked in Sri Lanka freely for the best part of three years without problems, had applied for and obtained a Sri Lankan passport in his own name without difficulty, and had been able to leave Sri Lanka using that passport. 

The above period was during a ceasefire between the Sri Lankan Government and the LTTE.  The Tribunal therefore rejected the appellant’s case that he was actively being sought by the authorities in Sri Lanka and noted that, although on the PM’s case he thought the authorities were after him in 2007, he did not apply for asylum until January 2009 after the failure of his application to extend his student visa.

The appeal was brought on the ground that the FTT had not properly applied the latest Country Guideline (CG) case TK (Tamils – LP updated) Sri Lanka CG [2009] UKAIT 00049, which confirmed the 12 risk factors set out in the previous country guidance case LP (Sri Lanka) CG [2007]UKAIT 00076. 

Moreover, it was argued that the FTT had failed to take into account several relevant passages of the CG decision upon which the risk factors were based. For example, in TK the tribunal held:

‘…for a returnee, a record noting past membership would very likely lead to detention for a period and we continue to think that in relation to persons detained for any significant period, ill-treatment is a real risk.  The same would apply, in our judgment, to persons currently suspected of being LTTE members; if that is how their record describes them, then detention and ill-treatment are likely consequences (paragraph 134 of TK)’

Held

All members of the Court reaffirmed the principle that deference should be shown to decisions of an expert tribunal like the FTT when subject to challenge in the appellate courts : AH (Sudan) v SSHD [2007] UKHL 49, [2008] 1 AC 678, but by a majority (2-1) held:

‘…the problem …with the …. determination is that, first, they do not show that he addressed his mind to the passages at paragraphs 134 and 142, which are of critical importance in relation to the facts established on the appellant’s part, and, secondly, if he did consider those passages, they do not explain why he considered that there was no sufficient possibility of a real risk for the appellant.  We do not know whether he thought about paragraphs 134, 135, 142 and 174, or, if he did so, why he concluded that the content of the record would be such as to lead only to a period of detention, not to a significant period.  So far as his reasoning goes, he does not appear to have recognised the clear inference from paragraph 134 of TK that there would be at least some period of detention of the appellant.’

Comment

This decision reminds us that when recording the findings of a CG decision, if the FTT omits reference to the odd sentence, this is unlikely to establish a material error of law, and yet it also highlights that decision makers must take care when applying CG decisions; it is insufficient, yet often the case, that the Tribunal refer to ‘risk factors’ as a check list, and fail to properly engage with the assessment undertaken by the tribunal in the body of the CG decision.  In PO (Nigeria) the Court held that a CG headnote should accurately reflect the relevant guidance contained in the determination, and because in that case it did not, it was suggested ‘there may be a need to review the current practice.’

About jcwi

Joint Council for the Welfare of Immigrants is a key campaigning voice in the field of immigration, asylum and nationality law and policy. It is completely independent from government funding, remaining entirely free from government influence. View all posts by jcwi

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