Asylum Appeal allowed outright by Court of Appeal in RS(Sri Lanka)

Monday 28 October 2019

Patrick Lewis of Garden Court Chambers represented the Appellant, and was instructed by Arun Gananathan of Birnberg Peirce.

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RS (Sri Lanka) is an important judgment which clarifies that former Liberation Tigers of Tamil Eelam (LTTE) members who escaped from detention after the end of the Sri Lankan civil war may be at risk of re-detention and ill-treatment on return.

RS was a Sri Lankan Tamil who had been an LTTE member. He had been detained by the Sri Lankan authorities in June 2009 in the immediate aftermath of the civil war and had been tortured. As was accepted by the First-tier Tribunal, he had then escaped from detention in December 2010. The First-tier Tribunal held, despite this, that RS was not at continuing risk of being detained on return, and the Upper Tribunal dismissed RS’ appeal.

The Court of Appeal unanimously allowed RS’ appeal. Floyd LJ (with whom King and Henderson LJJ agreed) accepted that it was inherently likely that, since RS had escaped from detention, an arrest warrant would have been issued for him. The First-tier Tribunal judge had completely overlooked the inherent probabilities of the case. The view that an arrest warrant would have been issued was supported by the evidence given by Mr Anton Punethanayagam and Dr Chris Smith to the Upper Tribunal in the GJ country guidance, as well as by a passage in the Home Office’s own Country of Origin Information (COI) report which had been current at the time of RS’ appeal to the First-tier Tribunal in 2014 and which should have been put before that Tribunal. If an arrest warrant was issued, it would follow that RS would be on the Sri Lankan authorities’ “stop” list and would be at risk of arrest, detention and ill-treatment on return to the airport. Accordingly – applying the low standard of proof which applies in asylum appeals – the appeal fell to be allowed. 

The Court of Appeal considered that remittal of the appeal to the Tribunal was unnecessary and accepted Mr Lewis’s submission that as the evidence admitted of only one outcome, namely that RS was at risk on return the Appeal would be allowed outright.

This case will be important for former LTTE members who escaped custody after the end of the civil war. It recognises the inherent likelihood that an arrest warrant would have been issued for a person who had escaped from custody and that, therefore, such a person would be at continuing risk today.  

Read the full judgment.

Patrick Lewis is a member of the Garden Court Chambers Immigration Team.

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