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

In asylum appeals, a tribunal’s assessment of the facts is not an error of law merely because an appellate court might weigh the evidence differently. The court should be slow to infer that a relevant matter was ignored because it was not expressly mentioned. For returning Tamils, risk must be assessed individually and cumulatively, using all relevant country-guidance factors. The decisive question is whether the returnee is sufficiently of interest to the authorities to face detention and interrogation, including at Colombo airport. A minor factual mistake will not invalidate a determination where the reasoning, read as a whole, supports a permissible conclusion. Limited, coerced assistance to the LTTE and previous detention did not, on the facts found, establish the requisite risk.

The appellant, a Sri Lankan Tamil, claimed asylum after leaving Sri Lanka. The Secretary of State refused the application, and Immigration Judge Braybrook dismissed his appeal on asylum and human-rights grounds. Following reconsideration, Senior Immigration Judge McKee found no error of law. The appellant obtained permission to appeal to the Court of Appeal on limited grounds.

The appeal concerned whether the Immigration Judge’s findings about the appellant’s limited assistance to the LTTE, detention by the Karuna group and the Special Task Force, reporting condition, failure to report, and searches by the authorities required a finding of a real risk of persecution or ill-treatment on return. It also concerned whether errors in the judge’s reasoning undermined the determination.

The appeal was dismissed. Lord Justice Maurice Kay delivered the judgment, with Lord Justice Thomas and Lord Justice Etherton agreeing.

1. The applicable country guidance required an individual and cumulative assessment of risk. [2007] UKAIT 00076 identified factors capable of increasing risk for returning Tamils, while making clear that they were neither exhaustive nor a checklist. [2008] EHRR 616 confirmed that Article 3 protection depends on serious reasons to believe that a returnee would be sufficiently of interest to the authorities to warrant detention and interrogation. Later guidance, [2009] UKAIT 00049, confirmed that the risk categories remained relevant after the LTTE’s military defeat.
2. The Immigration Judge was entitled to conclude that the appellant’s profile did not create a real risk on arrival at Colombo airport. Her findings included that his assistance to the LTTE was limited and coerced, that the authorities had accepted his explanation and released him without charge, and that efforts to trace him after he stopped reporting were desultory. She was also entitled to rely on his passport application in his own name and address and the absence of harassment of his family.
3. The judge was wrong to state that there was no evidence of attempts to trace the appellant and was wrong to hypothesise that Colombo authorities were unaware of his failure to report. Those errors did not undermine the reasoning as a whole. The conclusion remained permissible and was not perverse.
4. Following [2010] UKSC 49, the court should not readily characterise disagreement with a tribunal’s factual assessment as an error of law, nor infer that an unmentioned point was overlooked. The subsidiary challenge concerning the alleged failure to make findings about detention also failed.

• Court of Appeal (Civil Division) dismissed the appeal on the limited grounds for which permission had been granted: [2011] EWCA Civ 76.
• Asylum and Immigration Tribunal: Immigration Judge Braybrook dismissed the appellant’s asylum and human-rights appeal. On reconsideration, Senior Immigration Judge McKee found no error of law and refused permission to appeal, after which the Court of Appeal granted permission on limited grounds.