MP (Sri Lanka) v Secretary of State for the Home Department [2011] EWCA Civ 362 (06 April 2011): This was an appeal by a Tamil national of Sri Lanka against a determination that he should not be granted asylum.  The appellant argued that the Immigration Judge (IJ) who had dismissed his appeal at a previous hearing had failed to consult the latest country guidance. 

The IJ’s decision was an error of law.  Either he had overlooked vital points of TK (Tamils-LP updated) Sri Lanka CG [2009] UKAIT 00049, or the references to TK in his judgement were so inadequate that the appellant could not tell why his asylum application was rejected. 

The appellant had been active in Sri Lanka in the LTTE (Liberation Tigers of Tamil Eelam).  His asylum application was however rejected on the basis that although he had been detained and tortured by the authorities in Sri Lanka, he was eventually released.  The appellant had thereafter been able to work freely in Sri Lanka and had obtained a passport to leave Sri Lanka.  Furthermore, the appellant had made a late application for asylum in the UK (only some months after his student visa had expired).  As such the IJ concluded that the appellant could not have a well-founded fear of persecution if he returned to Sri Lanka.

The IJ had not attached appropriate weight to the risk factors identified in TK.  Certain significant paragraphs of the judgement were not referred to at all.  For example, paragraph 134 in TK states that any returnee to Sri Lanka who was at any time detained for being in the LTTE would be eligible for detention, and that ill-treatment would be likely.  The judge may have considered this, but failing to cite the passage was an error of law in any event.  The appellant could not know if this applicable and important point had been taken into account in determining that he would no longer be at risk of ill-treatment because it had been 8 years since the authorities last detained him.

Notwithstanding AH (Sudan) v SSHD [2007] UKHL 49, which states that the Court of Appeal should be cautious of overturning the findings of an expert tribunal, the situation in Sri Lanka at the time the appellant was given a passport meant that it could not be construed as a sign that all had been ‘forgiven and forgotten’.  The government was attempting to develop support for a cease fire with the LTTE.  That ceasefire broke down after the appellant had moved to the UK on a student visa. 

It was still open to the Upper Tribunal to conclude that the appellant did not have a well-founded fear of persecution.  However, all relevant factors had to be weighed.  Reasons had to be given why certain factors were dismissed as inapplicable.  These exercises had to be done in light of TK, which states that ‘great caution’ is needed where an asylum seeker who is to be returned to Sri Lanka has a record of detention.  The omissions in the IJ’s considerations failed to demonstrate great caution.  His decision needed to be re-made by the Upper Tribunal.