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

In an asylum appeal based on country guidance, a tribunal must evaluate identified risk factors in the context of the individual case and the wider background. Counting factors mechanically is insufficient, but the presence of several recognised factors does not itself establish a risk of ill-treatment. The tribunal is responsible for assessing the weight of the evidence and drawing proper inferences. The Court of Appeal will not interfere unless the assessment is irrational or perverse, or the tribunal failed to perform the required evaluative task. Anxious scrutiny does not require lengthy reasons where the determination shows that the material factors and relevant up-to-date evidence were considered.

The appellant, a Tamil from Sri Lanka, claimed asylum after arriving in the United Kingdom on a false French passport. An Immigration Judge accepted her account of detention and ill-treatment before 2005 but dismissed her appeal, finding that she would not be at risk on return to Colombo. On reconsideration, the tribunal upheld the earlier positive findings but rejected as incredible her account of detention and ill-treatment between December 2006 and March 2007.

The appellant sought permission to appeal, alleging that the tribunal had failed to apply the country guidance in LP (Sri Lanka) CG [2007] UKAIT 00076 with anxious scrutiny and had acted irrationally. The central issue was whether the tribunal had properly evaluated the identified risk factors, the later country information and the appellant’s personal circumstances.

Disposition

The Court of Appeal, Lord Justice Moore-Bick giving the judgment and Lord Justice Waller agreeing, refused the renewed application for permission to appeal.

1. Contextual evaluation. The country guidance decision in LP (Sri Lanka) CG [2007] UKAIT 00076 identified twelve factors liable to give rise to ill-treatment, nine of which the tribunal found in the appellant’s case. The presence of particular factors could not determine the appeal by a mechanical checklist. The tribunal had to evaluate them in the context of the individual case and the wider background.
2. Assessment of evidence. The tribunal was entitled to decide what weight to attach to the appellant’s previous detention and torture, her alleged record as a suspected LTTE supporter, the document she said she had been forced to sign, her personal profile and her scarring. The fact that she lacked a high political profile did not mean that the tribunal had applied an impermissible threshold. It had considered her general personal profile and treated her brothers’ LTTE connections as one factor among the evidence. The scarring was minor and consistent with cigarette burns, but remained a matter for the tribunal to assess in determining how the authorities might react.
3. Appellate restraint and anxious scrutiny. Assessment of the importance of the evidence, individually and collectively, was the tribunal’s task. The Court could interfere only if the conclusion was irrational or perverse, or if the tribunal had failed to perform that task. The tribunal had referred to the later material in the Black File, including a country-of-origin information report and an International Crisis report. Its reasoning was compendious, but it showed that the relevant factors had been considered. Anxious scrutiny did not require a longer analysis.

The application was therefore refused.

• Court of Appeal (Civil Division): renewed application for permission to appeal refused.
• Asylum and Immigration Tribunal: on reconsideration, upheld the earlier positive credibility findings but rejected the account of detention and ill-treatment between late 2006 and March 2007, and dismissed the appeal.
• Immigration Judge: accepted the account of events before 2005 but dismissed the appeal, concluding that the appellant would not be at risk if returned to Colombo.