PR (Sri Lanka), R (on the application of) v Secretary of State for the Home Department, Court of Appeal - Civil Division, November 28, 2017, [2017] EWCA Civ 1946

Resolution Date:November 28, 2017
Issuing Organization:Civil Division
Actores:PR (Sri Lanka), R (on the application of) v Secretary of State for the Home Department

Case No: C5/2015/2841

Neutral Citation Number: [2017] EWCA Civ 1946




Upper Tribunal Judge Warr


Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 28/11/2017






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Alasdair Mackenzie (instructed by Birnberg Peirce & Partners) for the Appellant

Andrew Deakin (instructed by the Government Legal Department) for the Respondent

Hearing date: 8 November 2017

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JudgmentLord Justice McCombe:

(A) Introduction

1. This is an appeal from the order of 28 July 2015 of the Upper Tribunal (Immigration and Asylum Chamber) (Upper Tribunal Judge Warr) (``the UT'') whereby the UT refused the appellant's renewed application for permission to apply for judicial review of a decision of the respondent of 10 June 2014. By that decision the respondent had refused to treat an application by the appellant for asylum/human rights protection as a ``fresh claim'' for the purposes of paragraph 353 of the Immigration Rules (``Para. 353''). Permission to appeal to this court was refused by the UT by the same order of 28 July 2015 but was granted by Arden LJ, upon application to this court, by her order of 1 March 2016.

2. As is well known Para. 353 provides as follows:

``353. When a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:

(i) had not already been considered; and

(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.

This paragraph does not apply to claims made overseas.''

As there is no statutory right of appeal to the First-tier Tribunal (FTT) in such cases, challenges by applicants to adverse decisions by the respondent under Para. 353 are made by judicial review and so are considered at first instance, artificially early, either in the Upper Tribunal or in the High Court, rather than in what might be thought to be the more natural forum, the First-tier Tribunal.

(B) Factual and Procedural Background

3. The case has a long history.

4. The appellant is a national of Sri Lanka and was born on 27 April 1973. He has a wife and two children in Sri Lanka. The appellant entered the UK clandestinely on 30 January 2010 and claimed asylum on 1 February 2010. On the same day he was issued with notice of liability to removal as an illegal entrant. His asylum claim was based on his affiliations with the Liberation Tigers of Tamil Eelam (LTTE) and ill-treatment by the authorities in Sri Lanka.

5. On the appellant's account, he joined the LTTE in May 1998, reaching the rank of Lieutenant before leaving in May 2002. In June 2005 he was detained by security forces on suspicion of involvement with an LTTE bombing. He said he was released upon payment of a bribe. He attempted to seek asylum in Germany in 2005 but was sent back from there to Sri Lanka. He said that he was forced to re-enlist with the LTTE in August 2006 culminating in his being sent to an internment camp in 2009, following a defeat of the LTTE by the Sri Lankan Army. He was arrested from the camp by the police on 15 September 2009. Whilst in detention he described being tortured. On 3 January 2010 the appellant claimed to have been released following his uncle having paid a bribe. He left Sri Lanka for India, before coming to the UK to claim asylum.

6. The Respondent refused the asylum claim on 26 March 2010. The appellant appealed this decision on 14 April 2010. The appeal was dismissed by the FTT. The appellant appealed from this decision to the UT.

7. Designated Immigration Judge Wilson heard the appeal on 22 September 2010 and in a decision of 30 September 2010, promulgated on 13 October 2010, he dismissed the appellant's appeal. He accepted that the appellant had been ill-treated and detained in Sri Lanka, having been a member of the LTTE for a considerable period of time. However, Judge Wilson did not find that the appellant had been truthful about the circumstances in which he left Sri Lanka and his present circumstances.

8. The UT refused permission to appeal to this court.

9. His application for permission to appeal to this Court was again refused by Stanley Burton LJ on 25 January 2011, on a consideration of the papers, and was further refused after an oral hearing (by Lord Neuberger MR, Sir Anthony May P and Carnwath LJ) on 11 August 2011. The appellant then applied to the European Court of Human Rights on 10 February 2012, arguing that his removal would be contrary to Article 3 of the European Court on Human Rights. That application was struck out in April 2014.

10. On 22 April 2014 the appellant made the further submissions to the Respondent which are now in issue. He asked for the application to be treated as a fresh claim for the purposes of Para 353, relying on the country guidance given in the case of GJ and Others (Post-Civil War: Returnees) [2013] UKUT 319 (IAC) and a medical report from a psychiatrist indicating he was suffering from mental health problems. He argued that he was at risk of persecution if returned to Sri Lanka and that his return would breach Article 3, based on a risk of suicide.

11. The Respondent refused to treat the appellant as making a fresh claim, in a letter dated 10 June 2014. These proceedings were issued by the appellant on 9 September 2014. Permission to proceed with the claim was refused by UT Judge Craig. The appellant renewed his application and the matter was heard by UT Judge Warr on 15 July 2015 who also refused permission.

(C) Decision of Upper Tribunal Judge Wilson

12. It is necessary to say a little more about the 2010 decision of UTJ Wilson for the purposes of considering the basis upon which the respondent rejected the appellant's April 2014 submissions as constituting a ``fresh claim'' within Para. 353.

13. The judge accepted that the appellant had been a member of the LTTE and had been detained and ill-treated. He accepted the findings of the appellant's medical witness (Dr Martin) as to scarring on the appellant's body and the consistency of the wounds with the torture alleged by the appellant. It was noted by the judge that the doctor did not say what the length of the period of torture might have been and that there was no evidence as to whether it had continued up to the date of the appellant's release. The judge considered this to be a relevant factor in the assessment of whether the appellant would be of continuing interest to the Sri Lankan authorities on return. The judge accepted that the appellant had signed a confession as to his membership of the LTTE. The judge reached the somewhat qualified conclusion that,

``...there is no reason that I can find to make a finding against the appellant that he was not released as claimed''.

Notwithstanding these findings, the judge expressed significant doubts as to the appellant's overall credibility. Without detailing the various individual points, I note that the judge said at paragraph 28 of the decision,

``...even against the background of the medical report, which as I have stated I have accepted, I have come to the conclusion that the Appellant has not told either the Respondent, the first Immigration Judge or me the truth about the circumstances in leaving Sri Lanka or his present position...''.

At paragraph 29 the judge said,

``...there are a large number of matters that cause one to doubt his credibility. These range from relatively minor far more substantial matters...''

14. The judge considered that the appellant would not have been released, even on payment of a bribe, if the authorities had a continuing interest in him and that records would not disclose any such continuing interest on return. The appellant had not been involved at a high level in the LTTE or engaged in fund raising. He concluded that there was therefore no relevant risk to the appellant if he were to be returned to Sri Lanka.

(D) The Appellant's new submissions: April 2014

15. The submissions presented to the respondent by the appellant's solicitors on 22 April 2014 (in the same month as the demise of his application to the European Court of Human Rights) advanced two overarching elements of the new claim: first, the then new ``Country Guidance'' case decided by the Upper Tribunal in GJ; and secondly, the report on the appellant from the psychiatrist, Dr Saleh Dhumad.

16. On the first point, the solicitors' letter relied upon two passages...

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