Case No: C5/2009/2056
Neutral Citation Number: [2010] EWCA Civ 770
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No: AA/09153/2008]

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 15th June 2010

Before:

LORD JUSTICE SEDLEY
LADY JUSTICE ARDEN
and
LORD JUSTICE KEENE
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Between:

	XY	
Appellant	
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SECRETARY OF STATE FOR THE HOME DEPARTMENT	

Respondent	

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Ms Charlotte Bayati (instructed by K Ravi Solicitors) appeared on behalf of the Appellant.
Ms Carys Owen (instructed by the Treasury Solicitors) appeared on behalf of the Respondent.

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Judgment
Lord Justice Sedley:   

1.	This appeal comes before the court on two issues singled out by Sir Richard Buxton on his grant of permission.  The skeleton argument was very much wider ranging than the two issues of the Commissioners being granted, but Ms Charlotte Bayati for the appellant has not renewed her application – wisely, if I might say so ‑‑ on the larger issues and has confined herself to the two issues for which permission was granted.
 
2.	Before I get to these it is necessary to say this.  Sir Richard Buxton was sufficiently concerned at the perfunctory explanation for the lateness of the application for permission to appeal, for which he nevertheless enlarged time, to direct that the appellant's solicitors should explain in writing what steps they had taken to train their staff so as to prevent similar errors in future.  Mr Ravindran, the principal of Ravi Solicitors, has now sent a courteous letter with a full statement by the case worker explaining what went wrong, apologising and indicating what is being done to ensure that it does not happen again.  The court is much obliged for this.
 
3.	The applicant, who is now aged 33, claimed asylum when he reached this country in May 2008.  Perhaps the saddest aspect of the case, although it is one that has no bearing on the decision that we have to take, is that his parents had apparently sold their paddy fields and their house to pay an agent to bring him here, and that he left lawfully on his own passport, which the agent then had destroyed or more probably appropriated, leaving the appellant on arrival to serve a sentence for coming here without a valid travel document.  Bona fide or not, people like the appellant are repeatedly the victims of racketeers who appear to pass and repass through immigration here unhindered.  

4.	At all events, the account he gave of events affecting him in Sri Lanka (of which he is a national of Tamil ethnicity) was broadly consistent and on appeal from the Home Office's refusal of asylum and humanitarian protection was accepted as credible by Immigration Judge Craig.  She dismissed his appeal, however, because she considered that the history disclosed no real risk that he would attract on return the hostile attention of either the government or the LTTE (the Tamil Tigers).  She also found, though without any articulated reasons, that there was "no real reason why he should not relocate for the time being to Colombo" given that, as she accepted, the then current heavy fighting in the north would make it difficult for him to reach his home area of Jaffna.  It is to be borne in mind in this connection that this appeal was initially heard in December 2008 when the civil war was reaching a climax.

5.	Reconsideration of this decision was ordered by Senior Immigration Judge Goldstein on the ground that Immigration Judge Craig had arguably failed “to give adequate reasons for [her] findings on material matters" and had paid insufficient attention to the recent country guidance in Strasbourg jurisprudence.  The reconsideration, however, failed at the first stage.  Senior Immigration Judge Warr who conducted it found no material error of law in Immigration Judge Craig's determination.

6.	The grounds initially advanced included a critique of Immigration Judge Craig for not expressedly referring to the European Court of Human Rights decision in NA v United Kingdom decided by the Court on 19 July 2008.  But Immigration Judge Warr dealt with that on the proper ground that what mattered was not whether the case was cited but whether the Immigration Judge had in substance dealt with the questions which it posed.  He found that she had, and the issue has not been resurrected.

7.	 The first of the two issues on which permission to appeal has been granted is the ostensible omission of both Immigration Judge Craig and Senior Immigration Judge Warr to consider risks of official persecution or reprisal arising from the appellant's brother's membership of the LTTE, this being an acknowledged risk factor if it is known to the authorities.  As to this, the Immigration Judge wrote in paragraph 20:

"The appellant said that he has an elder brother who is a member of the LTTE.  It is well documented ... that the LTTE has a ‘one family, one fighter’ policy."

She went on to accept (something which events have now entirely overtaken) that the LTTE had suffered heavy losses and might be looking for recruits, but (and this relates to the second permitted ground of appeal) the appellant was going to be returned to Colombo not to Jaffna.

8.	Since the Immigration Judge had found the appellant to be on balance credible, it is to be inferred that she accepted what he told her about his brother.  It is also right to say that she had initially confined the question of risk arising from the brother's allegiance to the risk that the LTTE would come after the appellant to recruit him or, if he was unwilling, would persecute or even kill him.  

9.	In paragraph 17 (which I will come back to) where she was dealing with the risk to the appellant from the government forces of Sri Lanka, it is right to say that she did not speak about the brother at all.  On the face of it that was an omission.  It is submitted on behalf of the Home Secretary, however, that it was not a material omission since the remaining findings were such that this was an issue that could only be resolved against the appellant.  Certainly Senior Immigration Judge Warr has not expressly repaired the omission, but this court is as well placed as he was to consider it and its materiality.
 
10.	What is said on behalf of the Home Secretary is that the appellant's own account (paragraph 4 of the Immigration Judge's determination) of an incident in which security forces in pursuit of an LTTE member seized the appellant at his family home but did not detain him either then or subsequently is consistent only with the conclusion that he was, and therefore will still be on return of no serious interest to the state authorities.  

11.	That appears to me to be a sound submission.  The passage in paragraph 17 dealing with the treatment of the appellant at the hands of the security forces made it very plain that he faced no real risk of persecution from them even at the height of the civil war.  In particular it seems to me nothing that happened then or has happened since gives any indication that the security forces have known, assuming it to be the case, that the appellant has a brother or had a brother in the LTTE.
 
12.	In paragraph 20, dealing with risk from that organisation, the Immigration Judge went on moreover to explain why this was unlikely to affect the appellant himself.  At the end of paragraph 20 she wrote:
 
"The appellant said that he has an elder brother who is a member of the LTTE.  It is well documented ... that the LTTE has a ‘one family, one fighter’ policy.  I accept that the LTTE has suffered heavy losses recently and may be looking to increase its recruitment.  However if returned the appellant will go back to the Colombo area where it is unlikely that he would be the subject of forced recruitment."

13.	That seems to me a satisfactory reason eliminating any substantial complaint of material error on the first ground, and it leads one to the second ground on which permission has been granted to appeal.  This concerns return to Colombo.  Assuming (as is consistently found in decided cases to be the case with independent young Tamil males) that the appellant can be safe in Colombo, there, is it is said, no examination in either the Immigration Judge's or the Senior Immigration Judge's determination of the question whether it is unduly harsh to expect him to relocate to Colombo.  Here, however, the Home Secretary relies on the general conclusion in the case of AN & SS Sri Lanka CG  [2008] UKAIT 00063 that young male Tamils can not only be safe in Colombo but can be expected to relocate there without undue hardship.  The appellant, as the Home Office's decision letter pointed out, had relocated within Sri Lanka before.
 
14.	It is worth recalling, however, that there is always a prior question to the question of relocation, namely: can the appellant be safe in his own home area and, if so, can he safely get there?  If the answer to those two questions is yes, then no problem of relocation to a different place arises.
 
15.	The Immigration Judge, as I have indicated, found that the answer to the second of those questions – namely, can he safely get to his home area -- was no, but that was when the civil war was still being fought.  It is now over.  That does not mean that young Tamils are now free from suspicion or reprisal, far from it ‑‑ and there is authority in the Upper Tribunal which recognises this ‑‑ but it does mean that if is this issue were to be remitted the entire question of relocation to Colombo would fade away because the appellant would be regarded as able to return to Jaffna.  

16.	That may or may not be legally relevant in this court rather than, as Ms Bayati submits, in its proper place before the AIT if she succeeds on other grounds on getting a remission.  But the decision letter raised very squarely the issue of undue hardship in relocating to Colombo, and Ms Bayati has been able to show us no factual material which addresses it and certainly none which addresses it so as to show that there would be undue hardship if the appellant were required to relocate to Colombo.  The fact is that the case quite correctly at all instances below focused on risk to the appellant either from the LTTE or from the authorities, in both cases because of the brother's involvement with the LTTE.

17.	The appellant, although now without his passport, will be returning with his own identity card.  There is, as there was, nothing in the evidence to raise a real fear that he will be picked up either at the airport or subsequently as a security risk or as a source of information about security risks.
 
18.	To make this doubly sure, this court will anonymise the present appeal completely by the use of XY as the identification of the appellant, so that, as far as can be achieved, there is no risk that he will be identified as the subject of this judgment or therefore the source of the information about his brother.
 
19.	For these reasons I will dismiss this appeal.
 
Lady Justice Arden:   

20.	I agree with my Lord, Sedley LJ, on both issues.  In my judgment the Immigration Judge has given anxious consideration to the risk of persecution by the authorities in paragraphs 17-22 of the decision.  The last paragraph refers to perceived political opinion, which can only be read as the reference to the risk by reason of the brother's membership of the LTTE.
 
21.	I agree with my Lord's dismissal of the appeal on the second issue for the reasons he gives, and I agree with the directions which he proposes.

Lord Justice Keene: 

22.	I agree with both judgments.

Order: Appeal dismissed