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

For humanitarian protection, the governing question is whether the evidence establishes a real risk of serious harm on return. Past persecution or serious harm is a serious indication of future risk under Immigration Rule 339K unless good reasons show that it will not be repeated. The assessment must address the actual risk identified by the evidence. State agents who have repeatedly inflicted serious abuse may present a different protection problem from ordinary criminals, because their position may enable them to act with impunity. A tribunal must treat the decisive assessment as an evaluation of risk, not as an unsupported factual assumption about the chance of recurrence. Where the accepted evidence permits no sustainable conclusion other than a real risk, the appellate court may determine entitlement to humanitarian protection, while leaving the form of protection to the Secretary of State.

The appellant, a Tamil woman from the Jaffna Peninsula, had been repeatedly raped by Sri Lankan soldiers. Her asylum and humanitarian-protection claims were initially allowed by an immigration judge, but a senior immigration judge set that determination aside for error of law and, on redetermination, dismissed both claims.

Permission to appeal to the Court of Appeal was limited to the senior immigration judge’s approach to the legal effect of the rapes and their consequences. The central issues were whether there was a real risk of renewed abuse and whether sufficient state protection could be assumed if protection were needed.

1. Appeal allowed. On the accepted evidence, the appellant was entitled to humanitarian protection. The form of protection was in principle a matter for the Secretary of State under Immigration Rule 339E and was to be remitted for decision.
2. The single test for a well-founded fear of persecution or ill-treatment was whether there was a real risk of occurrence or recurrence. The senior immigration judge’s reference to reasonable likelihood either applied too high a threshold or, if intended as a synonym, failed to evaluate the decisive issue as risk.
3. Past experience was central to the assessment. Under Immigration Rule 339K, the accepted history of repeated rape was a serious indication of future risk unless good reasons showed that repetition would not occur. The evidence established a real risk that local government soldiers would again target the appellant.
4. The senior immigration judge had treated the soldiers as if they were civilian criminals and had assumed that sufficient state protection could be obtained by travelling elsewhere. That approach was unsustainable. The soldiers were state military personnel who had repeatedly acted with apparent impunity, and there was no finding that relocation to Colombo or elsewhere was available or required. The country guidance in LP (Sri Lanka) CG [2007] UKIAT 00076 did not establish sufficient protection for this materially different risk.
5. Although risk assessment ordinarily belongs to the tribunal of fact, the evidence here permitted no other sustainable conclusion. Lord Justice Hughes and Mr Justice Hedley agreed with Lord Justice Sedley.

• Court of Appeal (Civil Division) [2008] EWCA Civ 1213: allowed the appeal on the humanitarian-protection ground and indicated that the form of protection should be remitted to the Secretary of State.
• Asylum and Immigration Tribunal [AIT No: AA/05149/2007]: the senior immigration judge set aside the immigration judge’s determination for error of law and redetermined the case against the appellant on asylum and humanitarian-protection grounds.
• Immigration Judge Courtney: allowed the appellant’s appeal and held that she was entitled to asylum and humanitarian protection.