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

Once permission for a second appeal has been granted, the appeal proceeds in the same manner as a first appeal. A material error in the logic used to evaluate evidence is an error of law. A fact-finder must identify the most relevant evidence and give sufficient, though potentially concise, reasons for accepting or rejecting it.

In asylum cases, the inquiry concerns a real risk, not whether the feared event is established as an actuality. Country guidance is an authoritative and weighty starting point. It must be applied sensitively to the individual facts because it cannot cover every conceivable circumstance, including a risk arising from the authorities’ perception of an individual.

The appellant, a Sri Lankan citizen, claimed asylum on the basis that the Sri Lankan authorities had become interested in him after the arrest of an army officer with whom he said he had participated in gold smuggling and assisted two alleged LTTE operatives to travel to Singapore. The Secretary of State refused the claim. The First-tier Tribunal rejected the appellant’s evidence in its entirety as incredible, and the Upper Tribunal dismissed his appeal.

Permission was granted for a second appeal because apparent inconsistencies in the First-tier Tribunal’s logic and fact-finding warranted examination. The central issue was whether the Upper Tribunal had been correct to find no material error of law in the First-tier Tribunal’s assessment of credibility and risk, including its application of country guidance.

1. Appeal allowed. The Upper Tribunal’s decision and the First-tier Tribunal’s determination were set aside. The claim was remitted to the First-tier Tribunal for redetermination by a different judge.

2. Once the second-appeal threshold in rule 52.7(2) of the Civil Procedure Rules 1998 had been satisfied and permission granted, the appeal proceeded as a first appeal. The Court nevertheless had to decide whether the Upper Tribunal had correctly found no material error of law in the First-tier Tribunal’s determination.

3. Appropriate deference is owed to specialist fact-finders, particularly on credibility and the evaluation of primary facts. That deference does not protect a material error in logic. An inference which cannot properly be drawn from the facts is an error of law. A fact-finder must also identify the most relevant evidence and give sufficient reasons for accepting or rejecting it. The required detail is contextual, but a basic minimum is essential.

4. The First-tier Tribunal materially misunderstood the appellant’s employment evidence. Working as a shop manager in the United Kingdom was not inconsistent with earlier work as a minister’s personal assistant. Nor had the appellant denied working for a minister. The tribunal also failed to address unchallenged corroborative evidence concerning that employment.

5. The tribunal’s reliance on unhindered airport travel was materially flawed. It perpetuated a transcription error suggesting travel in 2014, when the evidence showed that the appellant had last left Sri Lanka in 2010. Travel before the event said to have generated official interest could not rationally indicate the absence of later risk. The tribunal also failed adequately to address evidence concerning the appellant’s political interest, lack of payment, mode of addressing the army officer, and continuing CID inquiries.

6. The relevant asylum inquiry was whether there was a real risk, rather than whether the feared perception or harm was proved as an actuality. The country guidance in GJ remained authoritative and was a very important starting point. It could not cover every possible factual scenario and had to be applied sensitively to the individual facts. The appellant’s case depended on whether the authorities perceived him as connected with post-conflict Tamil separatism. The identified errors directly undermined the tribunal’s wholesale rejection of that account and were material to the assessment of risk.

1. Court of Appeal (Civil Division): The appeal was allowed. The Upper Tribunal’s decision and the First-tier Tribunal’s determination were set aside, and the case was remitted for redetermination by a different First-tier Tribunal judge: [2019] EWCA Civ 160.
2. Upper Tribunal (Immigration and Asylum Chamber): On 19 May 2016 it dismissed the appeal, holding that the First-tier Tribunal had been entitled to reject the appellant’s evidence as lacking credibility.
3. First-tier Tribunal: By a determination dated 15 March 2016, described later in the judgment as promulgated on 15 August 2016, it dismissed the appeal against the Secretary of State’s refusal of asylum.
4. Secretary of State: On 9 June 2015 the asylum claim was refused.