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

On a second appeal, permission requires a compelling reason for the appeal to be heard and a strongly arguable error of law. A tribunal may evaluate the strengths and weaknesses of evidence without putting every evidential inference to the party, although failure to give notice of an issue may sometimes be unfair. A failure to apply relevant country guidance, including the significance of release from custody following payment of a bribe, may amount to an arguable error in an asylum risk assessment. A possible error concerning an expert’s qualifications will not necessarily justify permission where the tribunal considered the report and evidence as a whole and reached a conclusion open to it.

This was a renewed application by a Sri Lankan citizen for permission to appeal against the Upper Tribunal, Immigration and Asylum Chamber’s decision of 21 August 2014 dismissing his appeal. The appeal concerned an earlier First-tier Tribunal decision dismissing his challenge to the refusal of his asylum claim. An earlier First-tier Tribunal determination had been set aside for legal error and the matter remitted for rehearing. The renewed application raised issues of procedural fairness, photographic and expert evidence, a late ground, and risk on return under Sri Lankan country guidance. The central issue was whether the risk-assessment ground disclosed a strongly arguable error of law and a compelling reason for a second appeal.

The renewed application was granted in part. Permission to appeal was granted on Ground 4 only and refused on Grounds 1–3.

1. Procedural fairness. Failure to give notice of an issue may in some circumstances be unfair: the court referred to Secretary of State for the Home Department v Maheshwaran [2002] EWCA Civ 173. However, a tribunal evaluating the evidence before it is entitled to weigh its strengths and weaknesses. It need not put every evidential concern or inference to the applicant. The First-tier Tribunal’s treatment of the evidence did not establish unfairness, notwithstanding the Upper Tribunal’s failure to deal with that complaint specifically.
2. Photographic evidence. The First-tier Tribunal was entitled to refer in its determination to the original photograph after it had been found. The related ground disclosed no arguable error.
3. Expert evidence. The First-tier Tribunal might have erred in its assessment of Professor Gunaratna’s expertise. Nevertheless, it considered the contents of his report, analysed the evidence concerning the Ocean Lady and the applicant’s brother, and reached a conclusion open to it. Ground 3 was therefore not arguable.
4. Late ground. The proposed challenge to the rejection of evidence concerning five alleged arrests had not previously been advanced. It could not properly be raised at that late stage.
5. Risk on return and second appeal. By reference to MM (Sri Lanka) v Secretary of State for the Home Department [2014] EWCA Civ 36, the court considered it strongly arguable that the First-tier Tribunal had failed to apply the criteria in GJ (post-civil war: returnees) Sri Lanka [2013] UKUT 319 (IAC). Particular significance attached to the guidance concerning release from custody following payment of a bribe, and to the First-tier Tribunal’s finding that the applicant had paid a bribe to avoid arrest in August 2012. The consequences for the applicant and the strongly arguable error supplied a compelling reason for hearing the second appeal.

1. Court of Appeal (Civil Division): On 28 October 2015, granted permission to appeal on Ground 4 only and refused permission on the remaining grounds.
2. Upper Tribunal, Immigration and Asylum Chamber: On 21 August 2014, dismissed the applicant’s appeal against the First-tier Tribunal’s decision.
3. First-tier Tribunal: Following remittal after an earlier determination was set aside for legal error, Judge Molloy dismissed the appeal.
4. Secretary of State: Refused the applicant’s asylum claim, with the refusal decision dated 18 October 2012.