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

An expert immigration tribunal need not address every potentially relevant matter in its reasons. However, its decision is affected by an error of law where it fails to address, or give intelligible reasons for rejecting, country-guidance factors central to the established facts and the assessment of a real risk of ill-treatment.

In assessing risk on return, the existence of a record of past LTTE membership or detention is not conclusive. The decision-maker must assess what the record is likely to disclose, including any signed confession and the applicant’s profile, and explain the significance of countervailing matters such as the passage of time, lawful travel and a passport obtained during a ceasefire.

The appellant was a Tamil national of Sri Lanka who had formerly worked for the LTTE. It was accepted that he had been detained and tortured in 2001–2002 and had signed a confession before his release. The Immigration Judge rejected allegations of later adverse interest and dismissed his asylum, humanitarian-protection and article 3 claims.

On appeal, the appellant contended that the Immigration Judge had failed properly to apply the country guidance in TK (Tamils – LP updated) Sri Lanka CG [2009] UKAIT 00049. The central issue was whether the reasons adequately addressed the risk arising from a likely official record of former LTTE membership, detention and a signed confession.

1. Appeal allowed by a majority (Lloyd and Rimer LJJ; Pill LJ dissenting). The determination was vitiated by a material error of law and the appeal was remitted to the Upper Tribunal for re-making.

2. The majority accepted that an appellate court should not interfere lightly with the decision of an expert fact-finding tribunal, and that an Immigration Judge need not deal expressly with every relevant point. Those principles did not cure the omission here. The judge’s reasons gave no adequate indication that he had addressed the critical guidance in TK [2009] UKAIT 00049 concerning a returnee with a record of actual former LTTE membership, prior detention and a signed confession.

3. That guidance indicated that such a record could very likely lead to detention and that ill-treatment was a real risk if detention were for a significant period. The question was not simply whether a record existed, but what it would reveal about the appellant’s profile. The Immigration Judge did not explain why the record, whose contents were uncertain, would not disclose a profile creating a real risk. Nor could the appellant’s ability to live freely, obtain a passport and leave Sri Lanka during the ceasefire conclusively resolve that question. Those matters were relevant but required cautious, reasoned assessment in the later circumstances.

4. The majority did not decide the ultimate risk question. It held that the appellant was entitled to a fresh decision applying the material risk factors and country guidance to the preserved findings of fact. The remittal was made pursuant to paragraph 12 of Schedule 4 to the Transfer of Functions of the Asylum and Immigration Tribunal Order 2010 and section 14 of the Tribunals Courts and Enforcement Act 2007.

Dissent: Pill LJ considered that the tribunal had permissibly assessed the appellant’s particular circumstances and that its failure specifically to mention paragraph 134 of TK did not invalidate the determination.

• Court of Appeal (Civil Division): Allowed the appeal by a majority and remitted the matter to the Upper Tribunal: [2011] EWCA Civ 362.
• Asylum and Immigration Tribunal: Immigration Judge Walker dismissed the asylum appeal in a determination promulgated on 12 January 2010. That determination was set aside for material error of law.
• Earlier tribunal proceedings: Immigration Judge Morris dismissed the appeal on 13 May 2009. Reconsideration was ordered by Senior Immigration Judge Southern and the earlier determination was set aside.