RR v Secretary of State for the Home Department

Where an asylum appellant's account has credibility difficulties but is supported by independent medical evidence, the opposing party should challenge that evidence fairly. A challenge to the alleged cause of injuries should ordinarily be supported by evidence or put clearly in cross-examination. Without that opportunity to answer the suggested alternative, it may be unfair to reject the account.

Country guidance risk factors must be assessed cumulatively and in their factual context, rather than as a checklist. A Tamil returnee's credible history of torture, scarring, a forced confession and failure to comply with reporting obligations could together establish a real risk of persecution and treatment contrary to Article 3.

The appellant, a Sri Lankan Tamil, appealed against a decision to deport him. His appeal had initially been dismissed by the First-tier Tribunal. On reconsideration, the Upper Tribunal found that the earlier tribunal had made a material error of law by failing to make findings about evidence that he had breached reporting conditions in Sri Lanka and that his father had been required to account for his whereabouts.

The re-hearing concerned whether the appellant had been tortured by the Sri Lankan authorities, whether he remained at risk on return, and whether deportation would breach the Refugee Convention or the European Convention on Human Rights. The Tribunal also considered his Article 8 claim arising from his life with relatives in the United Kingdom.

1. Appeal allowed. The original tribunal's decision contained a material error of law. The Upper Tribunal substituted a decision allowing the appeal on Refugee Convention grounds and, for the same reasons, under Article 3 of the European Convention on Human Rights.

2. The medical evidence did not conclusively establish how the appellant was injured, but it was independent, measured and consistent with his account. The cigarette-burn scars were particularly significant because they were difficult to explain other than as deliberate injuries. The respondent had neither put an alternative mechanism of injury to the appellant nor adduced evidence supporting one. In those circumstances, and applying the lower standard of proof, it was not fair to reject his account of torture.

3. The Tribunal accepted that the appellant had signed an incriminating document and had left Sri Lanka while subject to a reporting obligation. Applying the risk-factor guidance in LP (LTTE areas – Tamils – Colombo – risk?) Sri Lanka CG [2007] UKAIT 00076, as endorsed in TK (Tamils – LP updated) Sri Lanka CG [2009] UKAIT 00049, those were relevant factors to assess cumulatively.

4. The appellant would return as a Tamil who had spent years in the United Kingdom and would travel on a special document. His visible arm scars, prior torture, forced confession, reporting default and family LTTE links together created a real risk. He was therefore a refugee, and removal would also breach Article 3.

5. Although Article 8(1) was engaged by the appellant's established private and family life with relatives, the relationship lacked the exceptional dependency that would make removal disproportionate. Had international protection not been due, Article 8 would not have prevented removal. In accordance with EO (Deportation appeals: scope and process) Turkey [2007] UKAIT 00062, no separate consideration of paragraph 364 was required once the protection claim succeeded.

• Upper Tribunal (Immigration and Asylum Chamber): On reconsideration, it held on 19 April 2010 that the original tribunal had made a material error of law. It set aside the earlier findings and re-made the decision by allowing the appeal.
• First-tier Tribunal: Immigration Judge Kelsey and Mr D C Walker dismissed the appeal in a determination promulgated on 30 December 2009.