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

Release from detention without charge does not, by itself, resolve whether an asylum claimant remains at risk on return. The tribunal must assess the circumstances of release, including any bribe, continuing reporting obligations and subsequent official interest. Failure to address a significant circumstance relied on in the tribunal’s principal reasoning may disclose an important flaw and a reasonable prospect of success on appeal. This remains so where the application concerns a second appeal and a higher permission threshold applies.

This was a renewed application for permission to appeal concerning an asylum claimant from Sri Lanka. The accepted account was that he had been detained, interrogated and seriously ill-treated, released after his mother paid a large bribe, made subject to weekly reporting, and then left Sri Lanka. The Upper Tribunal treated release without charge as cogent evidence that he was no longer of adverse interest. The central issue was whether the failure to address the bribe and other circumstances of release gave the proposed appeal a reasonable prospect of success.

Permission to appeal granted. The Court of Appeal did not determine the substantive asylum claim.

1. In assessing risk on return, a tribunal should not treat detention followed by release without charge as conclusive evidence that a claimant is no longer of adverse interest. The circumstances of release are material. They may include the payment of a bribe, continuing reporting obligations, departure in breach of those obligations and later questioning of relatives.
2. The Upper Tribunal’s principal reason for rejecting the claim was that release without charge, subject to a reporting condition, was cogent evidence that the claimant was no longer of interest to the authorities. Its summary of relevant risk factors omitted the large bribe which secured release and the later questioning of the claimant’s mother and brother. The decisive reasoning also failed to reflect adequately the reporting condition and the claimant’s subsequent departure.
3. The bribe was a significant factor which should have been evaluated in the light of the country guidance in TK (Tamils-LP) [2009] UK AIT 0049. The guidance required attention to the circumstances in which detention ended and to the continuing risk of re-detention.
4. Those omissions constituted an important flaw in the reasoning and established a reasonable prospect of success, notwithstanding the higher hurdle applicable to a second appeal. The Court therefore granted permission. Order: application granted.

1. Court of Appeal (Civil Division) A renewed application for permission to appeal was heard on notice. Permission was granted on 28 April 2015: [2015] EWCA Civ 635.
2. Upper Tribunal (Immigration and Asylum Chamber) Upper Tribunal Judge Waumsley dismissed the asylum claim in a determination dated 19 June 2012.
3. Earlier proceedings An Immigration Judge had accepted the factual account in 2010. Davis LJ refused permission to appeal on paper on 26 February 2013; the renewed application was subsequently granted.