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

Where a party declines to cross-examine an appellant, the appellant’s factual account must be treated as accepted or undisputed. An appellate tribunal must not recast that account before drawing adverse inferences. Acceptance of the facts does not prevent reliance on inferences from them, but the weight of matters such as release after payment of a bribe remains for the specialist tribunal. Tribunals must engage with material points in the opposing case. Failure to do so is a legal error. Country-guidance risk categories do not replace assessment of the individual circumstances. Use of an appellant’s own passport to leave a country cannot be treated as strongly indicating absence of continuing interest where unchallenged evidence explains that departure involved collusion or corruption.

The appellant, a Tamil from Sri Lanka, claimed asylum and human-rights protection based on his involvement with the LTTE, detention, ill-treatment, confession and continuing risk on return. He had been released after payment of a bribe and later left Sri Lanka using his own passport. The Secretary of State refused his applications.

The First-tier Tribunal allowed his appeal. The Upper Tribunal found that the First-tier Tribunal had failed to engage with material points in the refusal letter, set its decision aside and dismissed the appellant’s appeal. The central issue in the Court of Appeal was whether the First-tier Tribunal had erred in law and whether the Upper Tribunal’s rehearing was itself materially flawed.

Decision

1. The Court granted permission to appeal and allowed the appeal. The case was remitted to the Upper Tribunal for rehearing. The Secretary of State remained bound by her acceptance, or at least non-dispute, of the appellant’s factual account.
2. The Upper Tribunal was entitled to conclude that the First-tier Tribunal had erred in law. The First-tier Tribunal had failed to evaluate the Secretary of State’s material contention that release following payment of a bribe could indicate that the authorities no longer regarded the appellant as of immediate interest. It had also virtually ignored the point concerning departure on the appellant’s own passport. A tribunal must engage with material points raised in the opposing case.
3. The Upper Tribunal nevertheless made a material error in its rehearing. The appellant’s evidence was that his departure through the airport had occurred with the collusion of persons corrupted by his agent. The Upper Tribunal wrongly described the departure as being through normal channels and treated it as strongly indicating that he was of no further interest. That reasoning misstated and ignored unchallenged evidence and was grossly unfair.
4. The absence of cross-examination prevented the Secretary of State from going behind the appellant’s factual account, but it did not prevent reliance on an inference drawn from accepted facts. The point concerning release after payment of a bribe, identified through Thangeswarajah v SSHD [2007] EWHC 3288 (Admin), required evaluation but was not determinative in every case. Its ultimate weight was for the expert tribunal on rehearing.
5. The appellant’s inclusion within country-guidance risk categories did not remove the need to evaluate his individual case. The Court also applied the second appeals test explained in JD (Congo) v Secretary of State for the Home Department [2012] EWCA Civ 327. Lord Justice Munby and Lord Justice Tomlinson agreed.

• Court of Appeal (Civil Division): Permission granted; appeal allowed; case remitted to the Upper Tribunal for rehearing.
• Upper Tribunal (Immigration and Asylum Chamber): Secretary of State’s appeal allowed, the First-tier Tribunal’s decision set aside, and the appellant’s appeal dismissed on all grounds.
• First-tier Tribunal: Appellant’s appeal allowed on asylum and human-rights grounds.
• Secretary of State: Asylum and human-rights applications refused.