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

Country guidance must be the starting point for assessing risk on return and should be followed unless very strong grounds, supported by cogent and reliable evidence, justify departure. A tribunal considering later country information need not summarise every passage or list positive and negative material separately. It must explain its reasoning so the parties can understand how the conclusion follows from the evidence as a whole. Selecting extracts that are particularly relevant to established facts does not, without more, show that the remainder was disregarded or that the assessment was unbalanced. On a legal-error appeal, the appellate court should address the identified error rather than re-try the underlying risk assessment. Relevant factors may have a cumulative effect.

The appellant, a Sri Lankan Tamil, appealed against the Upper Tribunal’s decision setting aside a First-tier Tribunal determination. The First-tier Tribunal had found that deportation was justified on serious public-policy or public-security grounds under regulations 19 and 21 of the Immigration (European Economic Area) Regulations 2006, dismissed the Article 8 claim, but allowed the appeal on asylum and Article 3 ECHR grounds.

The Upper Tribunal held that the First-tier Tribunal had unlawfully relied on selected passages from a 2016 country-information report without presenting a balanced account, set aside that determination and remade the decision against the appellant. Permission to appeal to the Court of Appeal was confined to the setting-aside decision. The central issue was whether the First-tier Tribunal had erred in law in its treatment of post-dated country information when considering departure from existing country guidance.

Appeal allowed. Sir Stephen Richards gave the judgment, with Lord Justice Floyd agreeing. The Upper Tribunal’s first determination was set aside and the First-tier Tribunal’s determination was reinstated.

1. The First-tier Tribunal had made relevant findings of fact and had properly taken the country guidance in GJ & Others (post-civil war: returnees) Sri Lanka [2013] UKUT 319 as its starting point. Its direction that departure required cogent and reliable evidence was consistent with KS (Burma) v Secretary of State for the Home Department [2013] EWCA Civ 67 and the observations in R (SG (Iraq)) v Secretary of State for the Home Department [2012] EWCA Civ 940, [2013] 1 WLR 41.
2. The Upper Tribunal erred in inferring from the First-tier Tribunal’s limited quotations that it had disregarded the remainder of the Home Office country-information and guidance report. The judge expressly stated that she had considered all the evidence, including the report, and the passages selected were spread across much of its main body. There was no requirement to work through every paragraph, or to set out a separate list of positive and negative factors. The essential requirement was to explain the reasoning sufficiently for the parties to understand how the conclusion had been reached.
3. The alleged omissions did not establish a significant lack of balance. Evidence that returnees were questioned was not contradicted by evidence that no returnee had been arrested for association with a proscribed organisation. It would have been preferable to record qualifications concerning so-called white-van abductions, but that omission did not make the approach unlawful.
4. The appeal was concerned only with the identified legal error. The Court was not required to decide whether the First-tier Tribunal’s risk conclusion was correct or reasonably open, and the Upper Tribunal’s different assessment on remaking the decision did not establish an error of law. The Court also observed that the cumulative effect of individual risk factors could not be dismissed merely because no factor was sufficient on its own; the merits of that assessment were not before the Court.

• Court of Appeal (Civil Division). The appeal was allowed. The Upper Tribunal’s setting-aside determination was set aside and the First-tier Tribunal’s determination was reinstated.
• Upper Tribunal (Immigration and Asylum Chamber). Upper Tribunal Judge Kekic set aside the First-tier Tribunal’s determination for error of law on 20 February 2017 and, after remaking the decision, dismissed the appeal on 13 April 2017.
• First-tier Tribunal. The appeal was allowed on asylum and Article 3 ECHR grounds, but dismissed on deportation, public-policy or public-security, and Article 8 grounds. The determination was promulgated on 15 November 2016.