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

Where a tribunal accepts that past ill-treatment was criminal abuse rather than persecution by the state, it must still assess whether there is a significant risk of repetition and whether effective state protection is available. A decision may disclose an error of law where its findings and stated basis for allowing an appeal are materially inconsistent or inadequately reasoned. At the permission stage, a challenge may be arguable where the tribunal’s assessment of protection gives insufficient attention to the applicant’s circumstances, the practical availability of protection, or the evidential basis for reliance on country information. Granting permission does not determine those merits questions.

The appellant, a young Tamil woman from Sri Lanka, claimed asylum after alleging that she had been raped on three occasions by Sri Lankan soldiers. Immigration Judge Courtney accepted her account and found a risk of persecution by the Sri Lankan authorities because of imputed LTTE sympathies, but also found no serious possibility that the authorities had identified her or her father as LTTE supporters. She further found that the soldiers had acted as criminals rather than as persecutors on behalf of the state.

On reconsideration, Senior Immigration Judge Gill held that the first decision contained an error of law, reassessed the risk and state protection issues, and dismissed the appeal. The Court of Appeal considered whether there was an arguable error in that reasoning, whether the consequences of the rapes had been properly addressed, whether the law on state protection had been correctly applied, and whether the hearing had been unfair.

Application granted, with permission limited to the second and third grounds. Permission was refused on the first and fourth grounds.

1. Immigration Judge Courtney accepted that the soldiers had abused their position and acted merely as criminals. The relevant questions concerning that ill-treatment were therefore whether there was a significant risk of repetition and, if so, whether the Sri Lankan authorities were willing and able to provide proper protection.
2. The judge’s apparent basis for allowing the appeal was that the appellant faced a real risk of persecution by the Sri Lankan authorities because of suspected LTTE sympathies. That conclusion was difficult to reconcile with findings that there was no serious possibility that her father had been identified as an LTTE supporter, that she was on a wanted list, or that the authorities were actively concerned about her. Without further explanation, the findings were either inconsistent or inadequately reasoned. Senior Immigration Judge Gill was therefore right to identify an error of law.
3. There was no merit in the complaint that the hearing had been conducted unfairly. However, there was sufficient force in the challenge to the treatment of the rape-related risk and state protection issues to justify permission. The challenge relied on the approach in Horvath v SSHD [2000] UKHL 37; [2001] A.C. 958, including the need to consider the appellant’s position and the authorities’ ability to provide substantive protection against further assaults.
4. The Senior Immigration Judge’s treatment of those matters was brief. Her conclusions that the appellant was unlikely to be identified by the soldiers, and could obtain sufficient protection if necessary, were challenged as inadequately reasoned and unsupported by the evidence. The reliance on LP (Sri Lanka) v SSHD CG [2007] UKAIT 00076 was also challenged as no longer reflecting conditions in Sri Lanka. These issues were left for determination on the appeal itself.

The notice of appeal was to be considered further after hearing counsel, including whether it should be amended to identify the permitted ground accurately.

• Court of Appeal (Civil Division) A renewed application for permission to appeal was heard after refusal on paper. Permission was granted on limited grounds by the judgment reported at [2008] EWCA Civ 773.
• Asylum and Immigration Tribunal Immigration Judge Courtney allowed the appellant’s appeal on refugee and human-rights grounds. On the Secretary of State’s application for reconsideration, Senior Immigration Judge Gill found an error of law, reassessed the case, and dismissed the appeal on all grounds.