NP (Sri Lanka) v Secretary of State For the Home Department

Internal relocation may be raised for the first time on appeal in an asylum case. Its omission from the refusal letter, or failure to serve a response or skeleton argument, does not remove tribunal jurisdiction. The controlling requirement is procedural fairness: the appellant must have fair notice and a proper opportunity to answer, with an adjournment or exclusion of the point where surprise causes injustice. A procedural failure does not itself require asylum to be granted; appropriate relief will ordinarily be remittal for a fair rehearing. A tribunal may assess relocation risk holistically and need not address every factor separately if it has properly considered the evidence and applicable country guidance.

The appellant appealed against the Upper Tribunal’s dismissal of his asylum appeal. The First-tier Tribunal had rejected his account of detention and escape and found that he would not be of interest to the Sri Lankan authorities. The Upper Tribunal accepted that the First-tier Tribunal had erred by failing to address internal relocation, but accepted the Secretary of State’s case that the appellant could relocate to Colombo.

Before the Court of Appeal, the appellant argued that internal relocation could not be raised because it had not appeared in the refusal letter and because the Secretary of State had not filed the required response or skeleton argument. The central issues were whether those matters deprived the Tribunal of jurisdiction and whether the resulting procedure was unfair.

1. Disposition. The Court of Appeal unanimously dismissed the appeal. The Upper Tribunal had jurisdiction to consider internal relocation and had not erred in law.
2. Late reliance on internal relocation. The absence of internal relocation from the refusal letter did not prevent the Secretary of State from relying on it at the appeal stage. The asylum policy instructions did not create a legitimate expectation and did not bind the Upper Tribunal. Article 8 of the Qualification Directive 2004/83/EC likewise did not create a bar. It directed attention to the general and personal circumstances prevailing in the proposed relocation area at the date of decision.
3. Procedural fairness. The authorities, including Daoud v SSHD [2005] EWCA Civ 755 and P and M v SSHD [2005] Imm. AR 84, required proper notice and a fair opportunity to meet the issue. They did not establish a jurisdictional rule excluding an issue first raised on appeal. The Upper Tribunal should be slow to permit late reliance without an explanation, and the appellant must be allowed to give evidence and make submissions. If surprise caused injustice, an adjournment or refusal to entertain the point could be appropriate. Relief on appeal would ordinarily be remittal for a fair rehearing, rather than an outright grant of asylum.
4. Procedure rules. Rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008 was an important safeguard of procedural fairness, but neither a breach of that rule nor failure to serve a skeleton argument could operate as a jurisdictional bar. The appellant had raised internal relocation in his own First-tier Tribunal skeleton and had fully addressed its merits before the Upper Tribunal. No substantial injustice was caused. This accorded with the fair-notice principle under Part 52.11(3)(b) of the Civil Procedure Rules 1998.
5. Merits. The Upper Tribunal had considered the country guidance in TK (Sri Lanka) [2009] UKAIT 00049, the appellant’s profile and the evidence as a whole. It was not required to address each risk factor separately. Its conclusion that relocation to Colombo would not expose the appellant to a real risk of persecution or treatment contrary to Article 3 of the European Convention on Human Rights disclosed no error of law.

• Court of Appeal (Civil Division) — Appeal dismissed on 16 May 2012: [2012] EWCA Civ 906.
• Upper Tribunal (Immigration and Asylum Chamber) — Decision promulgated on 3 June 2011. The Upper Tribunal set aside part of the First-tier Tribunal’s determination, remade the asylum decision and dismissed the appeal, accepting internal relocation to Colombo. No citation is stated in the judgment.
• First-tier Tribunal — On 31 December 2010, dismissed the appeal against refusal of asylum, finding the account of detention and escape not credible and concluding that the appellant was unlikely to be of interest to the Sri Lankan authorities.