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

In assessing protection on return, a tribunal must evaluate the inherent probabilities arising from a credible escape from detention. Where detention continued after the civil war and the detainee escaped rather than being released, it may be reasonably likely that an arrest warrant would have been issued and that the person would appear on an airport stop list. The applicable threshold is a reasonable degree of likelihood, well below the balance of probabilities. The claimant need not show that the authorities would necessarily remain interested. A tribunal errs in law if it overlooks the significance of the escape or treats the release of other detainees as weakening the claim when, on the facts, it may strengthen it.

The appellant, a Sri Lankan national and former low-level LTTE member, claimed asylum after describing post-civil-war detention, torture and escape from custody. The First-tier Tribunal accepted the account of torture and escape but dismissed the appeal, concluding that the escape did not make continuing official interest reasonably likely. The Upper Tribunal upheld that decision, stating that escape did not necessarily lead to further interest.

The appeal concerned whether those tribunals had materially erred in law by failing to assess the likely consequences of the escape, including the possible issue of an arrest warrant and inclusion on the airport stop list identified in GJ. The central issue was whether the evidence established a well-founded fear of serious harm on return.

1. Appeal allowed. The First-tier Tribunal had accepted that the appellant was detained for about 18 months after the civil war and had credibly escaped with assistance from a visiting contractor. It nevertheless looked for positive evidence that an arrest warrant had been issued and failed to assess the inherent probabilities.
2. The likely sequence was that an escaped detainee would be subject to recapture efforts, an arrest warrant and inclusion on the airport stop list. The country guidance in GJ and others (post-civil war returnees) Sri Lanka [2013] UKUT 319 (IAC) identified that list as comprising persons with an extant court order or arrest warrant. The country material and evidence considered in GJ supported the inference. The material should have been placed before the tribunal; the Secretary of State’s duty to do so applies whether or not it is publicly available, as explained in UB (Sri Lanka) v Secretary of State for the Home Department [2017] EWCA Civ 85.
3. The governing protection threshold requires a subjective fear which is objectively justified. The objective standard is a reasonable degree of likelihood, well below the balance of probabilities, as stated in R v Secretary of State for the Home Department, ex parte Sivakumaran [1988] AC 958.
4. The Upper Tribunal repeated the error by focusing on whether escape would necessarily lead to continuing interest. That was the wrong standard. The release of other LTTE detainees did not weaken the appellant’s case; in context, his non-release and subsequent escape strengthened the inference that the authorities remained interested in him.
5. Considering the evidence as a whole, including the inherent probabilities, the accepted account of detention, torture and escape, the relevant GJ guidance and the country information, only one outcome was possible: the appellant had a well-founded fear of serious harm if returned to Sri Lanka.

1. First-tier Tribunal (Immigration and Asylum Chamber): Judge Rose dismissed the asylum appeal on 22 August 2014.
2. Upper Tribunal (Immigration and Asylum Chamber): Deputy Upper Tribunal Judge Lindsley affirmed the First-tier Tribunal’s decision and dismissed the appeal.
3. Court of Appeal (Civil Division) [2019] EWCA Civ 1796: The appeal was allowed. The court held that both tribunals had materially erred in law and decided the protection issue in the appellant’s favour.