Asylum seeker – Appeal – Fresh claim – Claimant being refused asylum from Sri Lanka
R (on the application of Sathasivam) v Secretary of State for the Home Department: Queen's Bench Division, Administrative Court (London) (Judge Mackie QC (judgment delivered extempore)): 23 October 2012
The claimant was from Sri Lanka. She had come to the UK in 2007/2008. In January 2009, the claimant came to the UK again.
Subsequently, the claimant claimed asylum claiming, inter alia, that there was a risk of persecution if she was returned to Sri Lanka because she was Tamil. The claimant claimed, inter alia that whilst in Sri Lanka: (i) she and her son had worked for the Liberation Tigers of Tamil Eelam (LTTE); (ii) after her visit to the UK in 2008, she was stopped at the airport in Sri Lanka and questioned by the army as to whether her and her son were involved with the LTTE; (iii) subsequently, in late 2008, she and her son were arrested and detained on suspicion of being members of the LTTE; (iv) the claimant was separated from her son and faced torture, including rape, whilst in detention; and (v) she escaped detention after a bribe was paid for her escape and her brother arranged her departure from Sri Lanka to the UK.
The claimant's claim for asylum was refused. She appealed against that decision. In November, an immigration judge refused her appeal, stating, inter alia, that: (i) he was not satisfied that the claimant had previously been detained by Sri Lankan authorities; (ii) he did not believe her claim that she would face detention and torture if returned to Sri Lanka; and (iii) in general, she had been inconsistent and not provided credible evidence in support of her asylum claim. The claimant's appeal rights were subsequently exhausted.
In September 2010, the claimant's son arrived in the UK and claimed asylum. His claim was initially refused but was successful, on appeal. In December 2010, the immigration judge granting the claimant's son asylum held, inter alia, that: (i) he had been held and detained on suspicion of being an LTTE member; (ii) during his detention he had been tortured; (iii) his asylum claim benefited from a medical report and extensive evidence of scarring; (iv) he had lived in an LTTE-controlled area; and (v) it had been plausible on the basis of the country material that he had secured his release on payment of a bribe.
There had been no indication that the immigration judge in the claimant's son's appeal had rejected any truth of what he had to say. Subsequently, the claimant's solicitors wrote a number of letters to the defendant secretary of state requesting, inter alia, a fresh reconsideration of her asylum claim. The secretary of state replied, refusing the claimant's submissions, and stated, inter alia, that her son's appeal decision did not advance her own asylum application, and there would not be a real prospect of success in her claim. The claimant sought judicial review of that decision.
She contended, inter alia, that there was compelling new material in support of her fresh asylum claim in that her son had been recognised as a refugee in the UK after his successful asylum claim. The application would be allowed.
In the instant case, the fact that the claimant's son had been successful in his asylum claim did not, of itself, have any relevance to the claimant's claim. It had also been the case that the evidence that had swayed the immigration judge in the son's appeal had been his medical evidence and his scarring, which had not been related to the claimant. However, there were other matters where the two claims did overlap. The courts had considered the claimant's case and her son's case upon the same factual basis.
The claimant would not have been able to get evidence from her son at the time of her appeal because he had been detained at the time. Ultimately, the question would be whether if this new material was put before an immigration judge, taken together with previously considered material, would result in the claimant having a realistic prospect of success in her asylum claim. It could not be said that her prospect of success would be fanciful. She would have a realistic prospect of success in those circumstances.
Claire Physsas (instructed by MNS Law LLP) for the claimant; Matthew Donmall (instructed by the Treasury Solicitor) for the secretary of state.