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

In an asylum appeal, country guidance governs only the country issues it actually decided. Where it does not address the risk faced by women in particular circumstances, the tribunal must assess that issue on the evidence and give sufficiently detailed reasons. Past persecution, including sexual violence in detention, remains relevant to future risk. A change in intelligence methods does not necessarily show that conditions on the ground, including militarisation, have changed. Failure to distinguish those matters and evaluate their implications is a material error of law. The Court of Appeal cannot direct the Upper Tribunal to create further country guidance, but may remit a decision that fails to assess a materially raised risk.

The appellant, a Tamil woman from a former conflict zone in Sri Lanka, claimed asylum after being detained and raped by Sri Lankan forces in 2011. The First-tier Tribunal accepted the rape and some arrests but found no real risk on return. The Upper Tribunal later found an error of law, ordered a further hearing, and then held that changed circumstances following the LTTE’s defeat meant that the appellant was not at risk. The central issue was whether the Upper Tribunal had lawfully assessed the risk to Tamil women when GJ v Secretary of State for the Home Department did not separately address women and evidence indicated continuing militarisation and sexual violence.

The appeal was allowed and the matter was remitted to the Upper Tribunal.

1. Scope of country guidance. Country Guidance cases are authoritative only on the country issues they decide. GJ v Secretary of State for the Home Department [2013] UKUT 00319 did not separately address women in certain circumstances because the evidence before it did not cover that category. The UNHCR material recorded in GJ identified factors increasing women’s vulnerability, including female-headed households, weak economic position and high militarisation. This did not establish automatically that Tamil women formed a separate risk category, but it required more in-depth reasoning and inquiry than the Upper Tribunal provided.
2. Changed circumstances and past persecution. The Upper Tribunal failed to evaluate adequately the continuing significance of the appellant’s accepted rape in detention. Although the defeat of the LTTE and subsequent political realignment were relevant changes, it did not follow that conditions on the ground in the northern and eastern Tamil areas had changed similarly. The intelligence-led identification of LTTE sympathisers described in GJ did not establish that continuing militarisation had materially reduced the risk to vulnerable individuals. Failure to perceive and evaluate this distinction was a material error of law.
3. Jurisdiction and remedy. It was not for the Court of Appeal to direct the Upper Tribunal to consider whether to issue further Country Guidance. That was a matter for the specialist tribunal. The Court could, however, remit the decision because the Upper Tribunal had materially erred in law. A fresh claim under paragraph 353 of the Immigration Rules would have been relevant only if no error of law had been established.

• Court of Appeal (Civil Division) — Allowed the appeal and remitted the risk-on-return issue to the Upper Tribunal: [2014] EWCA Civ 1828.
• Upper Tribunal (Immigration and Asylum Chamber) — Found an error of law in the earlier decision, directed a further hearing, and on rehearing concluded that the appellant was not at real risk on return.
• First-tier Tribunal — By a decision dated 22 December 2011, accepted that the appellant had been raped in detention and arrested on three occasions, but found that she would not be at real risk on return.