SM (Sri Lanka) v Secretary of State for the Home Department

An Article 3 challenge is arguable where a tribunal appears to require proof of systematic torture or ill-treatment instead of asking whether there is a real risk of exposure. Substantial country material concerning torture or ill-treatment of detainees requires careful and fuller reasoning. The absence of anything to confess does not, without more, answer such evidence.

The appellant, a Tamil from Sri Lanka, renewed an application for permission to appeal against an Asylum and Immigration Tribunal determination dismissing his human-rights appeal. The Tribunal accepted that he was likely to be prosecuted on return for illegal departure and breach of bail conditions, and might be detained, but concluded that the evidence did not establish a real risk of ill-treatment contrary to Article 3 of the European Convention on Human Rights.

The appellant argued that the Tribunal had wrongly required evidence of systematic torture and had failed to address substantial evidence concerning torture of detainees. The central issue was whether the Tribunal’s assessment and reasoning adequately engaged with that evidence.

1. Permission granted. The application was a renewed application for permission to appeal after permission had been refused on the papers. The Court expressed no view on the ultimate merits of the Article 3 claim.
2. The relevant Article 3 question was whether the appellant faced a real risk of torture or ill-treatment on return. It was arguable that the Tribunal had adopted an erroneous approach by treating proof of systematic ill-treatment as necessary.
3. The country material contained substantial evidence of torture, or at least ill-treatment, in Sri Lanka. It was arguable that the Tribunal’s assessment of the likelihood of torture in the appellant’s particular case was an inadequate response to that material.
4. The Tribunal had reasoned, among other things, that there was nothing for the appellant to admit or confess. It was arguable that this did not adequately answer the wider evidence concerning ill-treatment of detainees. More careful and fuller reasoning was arguably required.
5. Lord Justice Carnwath agreed with Lord Justice Laws. Order: application granted.

• Court of Appeal (Civil Division): permission to appeal granted on renewal from the Asylum and Immigration Tribunal.
• Asylum and Immigration Tribunal: after a full reconsideration directed because of an error of law concerning documentary evidence, dismissed the human-rights appeal on 1 September 2006.