Home Office has ‘the clearest obligation’ to serve relevant policy guidance
In the recent case of UB (Sri Lanka) v Secretary of State for the Home Department [2017] EWCA Civ 85, the Court of Appeal has found that the Secretary of State has ‘the clearest obligation’ to serve relevant past policy documents and ensure that they are before the Tribunal.
Background
The Appellant was a Sri Lankan national who came to the UK in 2007 as a student. He made further applications for leave to remain in 2010 and 2011, which were granted. In 2014, he made an application for asylum, which was rejected by the Home Office. He then appealed to the First Tier Tribunal (“FTT”) on the basis that he was a refugee and a return to Sri Lanka would constitute a breach of his rights under the Geneva Convention. He claimed that because of his involvement in with the Liberation Tigers of Tamil Eelam (“the Tamil Tigers”), which had included involvement whilst he lived in Sri Lanka, as well participating in several protests in London, he would be persecuted if he returned.
The First Tier Tribunal
At the First Tier Tribunal, it was found that the Appellant’s activities did not reach the level whereby it would be appropriate to grant him asylum in the UK. The judge closely referred to the case of GJ and Others (post-civil war: returnees) Sri Lanka 2013 CG [2013] UKUT 00319 (IAC), which set out detailed guidance as to the categories of individuals “at real risk of persecution or serious harm” on return to Sri Lanka. These were:
“i) Individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they are, or are perceived to have, a significant role in relation to post conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka.
ii) Journalists or human rights activists who have criticised the Sri Lankan government, in particular its human rights record …
iii) Individuals who have given evidence to the Lessons Learned in Reconciliation Commission implicating the Sri Lankan security services, armed forces or the authorities in alleged war crimes.
iv) A person whose name appears on a computerised “stop” list accessible at the airport, comprising a list of those against whom there is an extant court order or arrest warrant. Individuals whose names appear on a “stop” list will be stopped at the airport and handed over to the appropriate Sri Lankan authorities, in pursuance of such order or warrant.”
Judge Wyman stated that although there was evidence that the Appellant had attended protests, his activity was fairly low, involving “simply attending demonstrations and giving out leaflets”. Judge Wyman further noted that the Appellant had “not claimed that he is involved in public speaking, funding the LTTE or any other role…[he] only claimed that he attends demonstrations, distributes leaflets and stands as a volunteer during rallies”.
In addition, Judge Wyman found that although the Appellant had been involved in the Tamal Tiger military whilst in Sri Lanka, his years of service had coincided with that of a ceasefire. Both findings made it unlikely he fell within the categories in GJ.
The Court of Appeal
An appeal to the Upper Tribunal was also unsuccessful, as it was found that the First Tier Tribunal had not erred in law. However, neither the First Tier Tribunal nor the Upper Tribunal had take into account or even referred to Home Office policy guidance, entitled “Tamil Separatism”, described as:
“Guidance to Home Office decision makers on handling claims made by nationals/residents of … Sri Lanka. This includes whether claims are likely to justify the granting of asylum, humanitarian protection, or discretionary leave … Decision makers must consider claims on an individual basis, taking into account the case specific facts and all relevant evidence, including: the guidance contained within this document; the available COI, any applicable case law; and the Home Office casework guidance in relation to relevant policies.”
The decision was therefore appealed to the Court of Appeal. It was submitted that the Respondent should have brought this fresh guidance, which post-dated the decision in GJ and was also on the Home Office’s website, to the attention of either the First-tier or Upper Tribunal.
The Court of Appeal found that “there was the clearest obligation on the Secretary of State to serve relevant material and ensure it was before the Tribunals at both levels”. This particular guidance was clearly material and should have been submitted by the Respondent. They did, however, urge caution, stating that if in future cases guidance was not material, there was not a need for it to be served.
It was then necessary for the Court of Appeal to consider whether this evidence would have made a material difference to the outcome of the case. It was noted that the Appellant had exaggerated many of his claims in the Tribunals, and that he may have even lied in claiming that he was mistreated by the Sri Lankan authorities on a visit there in 2014. However, it was found that the Court of Appeal could not preclude the risk that the guidance may have affected the findings, and therefore, without much enthusiasm, the appeal was allowed.
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