Sivakaran v Secretary of State for the Home Department

In assessing whether scarring creates a real risk of persecution on return, the decision-maker must consider the nature of the scars together with the individual circumstances of the returnee. A facial, obvious or apparently torture-related scar does not create an automatic risk category. Relevant circumstances may include the injury’s circumstances, treatment by state authorities, detention and release, the person’s explanation, and the ease of departure. The assessment remains fact-sensitive and is for the specialist tribunal, provided its reasoning is legally sustainable. An imperfectly drafted passage does not establish an error of law where the tribunal’s conclusion is clear when read as a whole.

The appellant, a Sri Lankan Tamil, claimed asylum after providing low-level assistance to the LTTE. He had been detained and ill-treated in Sri Lanka, suffered scarring including a prominent forehead scar, received treatment from an army doctor, and was released after his father paid a bribe. His asylum claim was refused. An adjudicator dismissed his appeal, finding no real risk on return, and the Immigration Appeal Tribunal dismissed a further appeal on 2 July 2002. The appeal to the Court of Appeal concerned whether the approach to the scarring was legally flawed and whether the appellant would face interrogation and ill-treatment at Colombo airport.

1. Appeal dismissed. The issue was whether the appellant faced a real risk of persecution on return because of his scars. A prominent forehead scar might lead the Sri Lankan authorities to question him, but the legal assessment was not determined by the scar in isolation.
2. The UNHCR position, as summarised in the country assessment, required consideration of the nature of the scarring in the particular circumstances of each returnee. The Court rejected an overly mechanical approach. A scar described as obvious or torture-related did not automatically establish that the returnee would be regarded as an LTTE supporter or subjected to persecutory treatment.
3. On the facts, the tribunal was entitled to find that the authorities would learn that the appellant had been detained four years earlier, treated by an army doctor, and released after a relatively short period. They could also learn his explanation for the forehead injury. Those matters supported the conclusion that they would not regard him as still involved with the LTTE or as a threat requiring intensive interrogation.
4. The ease with which the appellant had left Sri Lanka was relevant, even though departing persons might not be examined for scarring as closely as returning persons. The assessment was essentially factual and was made by an expert tribunal.
5. Although paragraph 13 of the tribunal’s determination could have been drafted more clearly, the determination read as a whole showed its factual conclusion and contained no error of law. The appeal was dismissed, with no order as to costs.

• Court of Appeal (Civil Division) — [2003] EWCA Civ 795: dismissed the appeal from the Immigration Appeal Tribunal and made no order as to costs.
• Immigration Appeal Tribunal — determination dated 2 July 2002: dismissed the further appeal from the adjudicator.
• Adjudicator — determination dated 19 November 2001: dismissed the appeal against the Secretary of State’s refusal of asylum.
• Secretary of State for the Home Department — asylum claim refused on 6 March 2001.