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

In an asylum or humanitarian-protection claim, the issue is whether there are substantial grounds for believing that the claimant faces a real risk, not whether that risk is proved on the balance of probabilities. A fact-finder must apply that test directly in its assessment of the evidence.

Where a claimant was previously detained and tortured for alleged political offences, and the evidence indicates continuing official interest, a heightened degree of scrutiny is required. It is insufficient to rely on the claimant’s willingness to provide further information without addressing whether the authorities may disbelieve him and detain or ill-treat him again. Country guidance that remains authoritative must be applied.

The appellant, a Sri Lankan Tamil, sought asylum and humanitarian protection. The First-tier Tribunal rejected his claim despite accepting that Sri Lankan authorities had detained and badly beaten him in December 2014. It concluded that he was no longer of interest to the authorities.

The Upper Tribunal dismissed his appeal in a decision cited as [2016] UKAITUR AA123872015. With permission limited to two grounds, he appealed to the Court of Appeal. He contended that the First-tier Tribunal had applied too high a standard of proof and that its reasoning contained material inconsistency or ambiguity.

The central issue was whether the First-tier Tribunal’s findings adequately addressed the real risk of renewed detention and ill-treatment on return, in light of the accepted past torture and later visits and searches at his home.

1. Appeal allowed. The First-tier Tribunal correctly directed itself that the relevant standard was whether there were substantial grounds for believing that the appellant faced a real risk. That standard accorded with Sivakumaran. The error lay in the subsequent evaluation of the evidence, not in the formal self-direction.

2. The First-tier Tribunal was entitled, and required, to apply the country guidance in GJ, which remained authoritative. The appellant’s arrest long after the end of the conflict meant that he had then been perceived as being of significant interest to the Sri Lankan authorities and had fallen within the relevant risk category. His release without charge or reporting conditions did not by itself demonstrate that the risk had ended, particularly because the authorities later visited and searched his home twice.

3. The tribunal identified a real possibility that the authorities would wish to question the appellant further. Its conclusion that he would provide any further information was not a complete answer. The material question was whether there was a real risk that the authorities would disbelieve him and use detention or ill-treatment to obtain further information. The tribunal failed to confront that question or to explain what had changed since the authorities had previously extracted information after beating him. In a case involving torture for alleged political crimes, [2003] UKHL 14 required heightened scrutiny.

4. A negative finding that the tribunal did not find the appellant to be perceived as a threat did not squarely answer the distinct question whether there was a real risk that he was so perceived. That formulation is particularly unsuitable where the issue is risk rather than proof of a binary fact on the balance of probabilities. The gap in the First-tier Tribunal’s reasoning was a material error of law.

Lewison LJ also gave procedural guidance, with which Flaux LJ agreed. The Court of Appeal has no free-standing Robinson duty to take unraised points. Arguments are confined to the grounds for which permission has been granted, and appellate documents must comply with the applicable Practice Directions.

• Court of Appeal (Civil Division): Allowed the appellant’s appeal: [2018] EWCA Civ 1486.
• Upper Tribunal (Immigration and Asylum Chamber): Dismissed the appeal from the First-tier Tribunal: [2016] UKAITUR AA123872015.
• First-tier Tribunal: Rejected the appellant’s claim for asylum and humanitarian protection in a decision promulgated on 15 January 2016.