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Cite as: [2005] EWCA Civ 1655

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Neutral Citation Number: [2005] EWCA Civ 1655


Royal Courts of Justice
London, WC2A 2LL
23 November 2005

B e f o r e :

(Vice President of the Court of Appeal, Civil Division)




(Computer-Aided Transcript of the Stenograph Notes of
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MR C E MOLL (instructed by Hackman, Middlesex) appeared on behalf of the Applicant
MR S KOVATS (instructed by Treasury Solicitor, London) appeared on behalf of the Defendant



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  1. LORD JUSTICE BUXTON: This is a rather exceptional case in which the court is going to be minded to take a somewhat exceptional course. The appellant (originally the applicant) is Ms Priya Kuganandhavel. She is a citizen of the Republic of Sri Lanka. She left that country in June 2002 and eventually arrived in this country and claimed asylum in January 2003.
  2. The basis of her asylum claim was that her family had been involved with the LTTE and that as a result her father had been arrested by the army, and that she had been on two occasions herself arrested or assaulted by members of the Sri Lankan Army and raped in humiliating circumstances, which I do not need to set out further. She was also on another occasion arrested and threatened by the LTTE. She was accepted by the adjudicator as being a witness of truth. The adjudicator in a careful analysis of the evidence the appellant had given in respect of those events accepted in effect the whole of what she had said. Her asylum claim was based upon fear of persecution for a Convention reason from two potential sources: (1) the Government of Sri Lanka; and (2) the LTTE. The adjudicator rejected both of those claims, not on the basis that she disbelieved what had happened, but on the basis of evidence about developments in Sri Lanka since the applicant had left that country. The adjudicator concluded that there was no significant danger of persecution from either source should she return. That determination was not appealed and is not the subject of the proceedings before this court. It is, however, relevant because the predominant role that the asylum claim played in the proceedings before the adjudicator strongly affected the way in which the evidence was developed and therefore affected the consideration of claims under the Human Rights Convention that the appellant also wished to adduce.
  3. As is so often the case in cases of this sort, the human rights applications were essentially an addition to the Refugee Convention claims, and were dealt with only at the end of the determination. The adjudicator found that Article 3 rights could not be asserted because in her view, rightly or wrongly, that they stood or fell with the Refugee Convention claims. There is no appeal against that determination either. The adjudicator then turned to Article 8, and it is necessary to set out the four paragraphs in which she dealt with that because they have been subject of close attention in the proceedings before us. She said this, at paragraph 30:
  4. "The Appellant also claimed that her Article 8 rights would be infringed if she were to be returned. In reaching my decision as to the Appellant's Article 8 claim I have sought to follow the approach taken by the Immigration Appeals Tribunal in case [2003] UK IAT 00026S which was placed before me at the hearing. The Appellant in this case lives in the United Kingdom with her mother and her sister, who has been granted indefinite leave to remain in the United Kingdom. Both Arden LJ and Kugathas [2003] INLR 170 and Sedley LJ in F v United Kingdom have observed that the protection of Article 8 does not normally extend to established family life between an adult child and a parent or other sibling unless something exists more than normal emotional ties."

    In paragraph 31 the adjudicator dealt with the applicant's medical history, and concluded, to put it shortly, that there was no distinctive psychiatric illness or other such reason to engage Article 8. She then continued in paragraph 32:

    "Following the approach of the Tribunal at paragraph 31 of case 26S, I assume in the Appellant's favour that she enjoys family life with her mother and sister in the United Kingdom. I find that the Appellant has no possibility of enjoying family life in Sri Lanka since she does not know the whereabouts of either her brother or her father. I do not have any information as to the appellant's mother's status in the United Kingdom. However, the fact that her sister has indefinite leave to remain has not been challenged and I therefore find that it would be unreasonable for her sister to return to Sri Lanka.
    33. I consider that the totality of the Appellant's circumstances is exceptional. Her suffering in Sri Lanka, at the hands of both the army and the LTTE, was considerably more intense than that of the appellant in case 26S. She has nowhere to go in Sri Lanka. Unlike the Appellant in case 26S, she would have to deal with the shame of being a rape victim. There will be, in [her counsel's] words, a 'support bond' between the Appellant and her sister who, I assume from the fact that she has been granted indefinite leave to remain, has also suffered traumatic circumstances in Sri Lanka."

    The adjudicator therefore found that removal of the appellant to Sri Lanka would be a breach of Article 8 rights; and, given the appellant's circumstances, it would be disproportionate.

  5. The Secretary of State appealed against that determination. The grounds of appeal were drafted before the implications of the case of CA had truly been brought to the attention of those practising in this field, and certainly before this court considered the status and necessary contents of grounds of appeal to an adjudicator in the case of Miftari [2005] EWCA Civ 481.
  6. The principal basis upon which Mr Moll has advanced this appeal for the appellant is that the grounds as drafted indicated no point of law and therefore the IAT in accordance with the jurisprudence of Miftari had no jurisdiction to consider the appeal.
  7. The grounds are lengthy and certainly not in the form that one would expect to see grounds if they were drafted today with the benefit of the guidance of this court. However, although they include a significant number of matters that could not be said to ventilate a point of law, they include the following paragraphs, which are of importance. Paragraph 2: "The adjudicator has failed to indicate why she accepts family lives exists within the terms of article 8. At paragraph 32 of the determination the adjudicator states: "I assume in the [respondent's] favour that she enjoys family life with her mother and sister in the United Kingdom." The Secretary of State would argue that there was little evidence before the adjudicator on which to base this assertion. Paragraph 5:
  8. "The Secretary of State would argue that the adjudicator had little evidence in front of her regarding the grant of [indefinite leave to remain] to the respondent's sister or the status of her mother. This in itself is not a determinative factor when looking at the Article 8 issues. The adjudicator has failed to indicate why the respondent and her sister have a 'support bond' that goes beyond normal emotional ties and the respondent would be unable to care for her own needs in returned to Sri Lanka. The respondent's sister was present at the appeal hearing and failed to submit any evidence that support the adjudicator's finding of fact. Furthermore, the adjudicator found at paragraph 31 of the determination that:- There is no conclusive evidence before me as to the Respondent's emotional state.
    6. The Secretary of State would argue that the adjudicator has failed to give an adequate explanation as to why removal of the respondent would be disproportionate or in breach of Article 8, or what tests have been applied in reaching her conclusion. The adjudicator has failed to indicate whether she has taken a 'step by step' approach following principles laid down in the IAT decision in Khundur and Chiwera. Neither has the adjudicator made reference to the principles set out in the case of ... Mahmood ..."

    At the same time as indicating the importance that the grounds should disclose a point of law, in Miftari; and Lord Phillips of Worth Matravers in D; and also, as our attention was drawn this morning, in Rodriguez-Torres [2005] EWCA Civ 1328 at 17; the court has emphasised that grounds must not be read too pedantically and that, in particular, an appeal otherwise valid should not fail simply on a point of language.

  9. The grounds effectively complained, and complained by way of point of law, on three scores. First, that the adjudicator's conclusion that family ties existed within the terms of Article 8 was, as the adjudicator herself said, an assumption, and an assumption that was not based on sufficiently cogent grounds to off-set the authorities that the adjudicator herself quoted in respect of adult siblings. Secondly (in paragraph 5), linked to that point, there was no evidence upon which the adjudicator could conclude that the respondent would be unable to care for her own needs if returned to Sri Lanka: on the basis that the adjudicator had no evidence before her of a crucial issue in that consideration, whether her sister would return with her to that country. Thirdly, paragraph 6 of the grounds complains that the adjudicator did not make clear what test she was applying in respect of the Article 8 claim and did not properly apply the jurisprudence of Article 8 in reaching her conclusion.
  10. When the matter came before the Immigration Appeal Tribunal it concluded, first, that it had been open to the adjudicator to find on the evidence before her that the claimant's private and family life with her sister was indeed within the scope of protection offered by Article 8 of the Convention. That was, if I may say so, a somewhat generous finding in favour of this applicant, not least because, first of all, no evidence had been put forward as to the sister's ability or otherwise to return to Sri Lanka; and secondly and more particularly, because the evidence as to the nature of the family life within the United Kingdom was largely a matter of assumption. None of it is referred to in the adjudicator's own determination and only very scant evidence was given by the applicant herself. However, that point of law was determined in the appellant's favour and understandably there is no cross-appeal in respect of it.
  11. The Immigration Appeal Tribunal then turned to the question of whether the conclusion of the adjudicator had been, in overall terms, justified under Article 8. It said this:
  12. "10. We cannot agree that the adjudicator was entitled to conclude that removing the claimant was disproportionate to the proper purpose of enforcing immigration control.
    11. In reaching this conclusion we note that there was no evidence put before the Adjudicator to show that the claimant's mother or sister could not return with her. The fact that the claimant's sister was given refugee status after the ceasefire does give us cause to reflect on the consequences of return for her but, once the Secretary of State had raised the concern about immigration control, it was for the claimant to produce evidence to show that removal was disproportionate. If she wanted to say that her sister could not go back with her the sister should have been called to explain why that was still the case. The fact that she has refugee status is not enough on its own. This conclusion is supported by the decision of the Tribunal, chaired by the President, Ouseley J, in SS (ILR, Article 8 return) Sri Lanka [2004] UKIAT 00126. It follows that we find there are no insurmountable obstacles to the claimant continuing her family life in Sri Lanka.
    12. In any event removal is not disproportionate. Notwithstanding that the claimant gains special benefit from the moral support of her sister there is no evidence that depriving her of that will lead to real harm. Neither do we accept that the claimant could not be expected to live on her own in Sri Lanka. Doubtless she does not want to do that but there was nothing to support the conclusion that removal would be so disruptive that the ordinary rules of immigration control should not apply.
    13. We were reminded that the Immigration Rules show respect for private and family life by providing a means for people dependant on relatives in the United Kingdom to join them. The fact that the claimant would not appear to satisfy the requirements of the rules supports that conclusion that removal is not disproportionate to the proper purpose of enforcing immigration control. In the absence of very special circumstances the claimant is not entitled to circumvent the ordinary processes of immigration control.
    14. Unlike the Adjudicator we, of course, have the benefit of the reasoning in the case M (Croatia)* [2004] UKIAT 00024 which was promulgated after the adjudicator reached her decision. 15. We are satisfied that the Adjudicator's conclusion was not open to her and we allow the Secretary of States' appeal."
  13. There are a number of potential problems about that determination and about the history of the case generally. I will attempt to set them out in some sort of logical sequence. First of all, the law that obtained at the time when the adjudicator gave her determination was in some respects different from that which obtains now. At the time when the adjudicator gave her decision the ruling jurisprudence, so far as the application of Article 8 was concerned, was the decision of this court in Ullah. The view that, in effect, Article 8 could not be asserted in respect of removal to another country was subsequently displaced by the determination of the House of Lords in that case. Secondly, so far as interference with family life in this country is concerned, the test was to some extent unclear with regard to the standard that had to be reached before interference with Article 8 could be said to take place. The very high standard that is required before Article 8 is engaged was only made fully clear by the decision of the House of Lords in Razgar, which equally took place well after these determinations.
  14. Mr Kovats argues that that jurisprudence, being a matter of common law, obtained at the time when these various decisions were made. That I would accept. But the difficulty in this case is that the uncertainty about the state of the law may have affected the way in which the case was addressed, and may have affected the approach of the adjudicator. We have seen that she said that she thought the totality of the appellant's circumstances was exceptional. That was by no means necessarily an incorrect statement of the test that she had to apply in September 2003; and the evidence, such as it was, would have been adduced on that similar basis.
  15. As to the evidence that was available in respect of the position in Sri Lanka, first of all an important point made in the appellant's evidence was the degree of shame and humiliation that was attracted to anybody in Sri Lanka who had had the misfortune of being raped, and the difficulty that that would cause were she to return to that country. No doubt because of the concentration on the asylum claim, which I referred to at the beginning of this judgment, that point was not explicitly articulated by the adjudicator, though it is almost certain that she had it well in mind when she spoke generally of the circumstances awaiting this lady in Sri Lanka. It was not referred to at all in the determination of the Immigration Appeal Tribunal. Secondly, so far as the benefit of support of the sister was concerned, the adjudicator considered that the fact that she had indefinite leave to remain would indicate that she could not be expected to go back to Sri Lanka with the applicant. The Immigration Appeal Tribunal, as we have seen, held that that was by no means necessarily to be assumed, citing the decision of the Tribunal in SS. But, as Brooke LJ pointed out in the course of argument, that case was decided after the adjudicator had given her determination, and therefore the Tribunal did not have the benefit of the adjudicator's view in that context; and that if it was sought to complain of that part of the adjudicator's determination on the basis of SS in accordance with the guidance given by this court in Miftari and extended in R (Iran), the grounds of appeal should have been amended to put that point on what is described in D as the agenda of the court. That did not happen. Therefore the implications of the sister's position and the implications of the fact that the sister did not give evidence were not properly explored, any more than was the position of the claimant's mother. Some of those shortcomings may have been attributable to the way in which the case was presented to the adjudicator, but some of them may be an understandable lacuna caused by the uncertainty of the position of the law and also the fact that only brief attention was paid to the Article 8 claim. That, therefore, presents this court with something of a difficulty.
  16. It would on one level be open to the court to dismiss the appeal on the basis that there was sufficient grounds for the Immigration Appeal Tribunal to reach the conclusion that it did on the second point about Article 8. We do not think in the overall circumstances of this case that that would be a fair conclusion. We think that this applicant, somebody who clearly attracted the sympathy of the adjudicator who was the person who heard and saw her give evidence, should have a further opportunity to adduce the whole of her Article 8 case in the light of the requirements of the law as it is now understood before another fact-finding tribunal.
  17. Mr Kovats for the Secretary of State, with his customary fairness, although not conceding that step, did not argue strongly against that being a proper course in the exceptional circumstances of this case and in the interests of justice. It was proper for the Secretary of State through Mr Kovats to take that position.
  18. I, for my part, therefore, having had the benefit of reviewing the matter, would order that the case be remitted. I would order that the appeal be allowed to the extent that the application be remitted to the Asylum and Immigration Tribunal for reconsideration in the light of the law as it now stands before that Tribunal. I use the expression "the law as it now stands" advisedly, because it will not have escaped attention that the legal test that the applicant has to satisfy is an extremely stringent one, now well-known as set out and emphasised in the judgments in the House of Lords in Razgar; and it is important that the applicant be advised that she faces a very difficult case in the Asylum and Immigration Tribunal when the matter is returned there. I do not, however, find it possible to say that such an application will necessarily fail in light of the jurisprudence of Razgar. In any event, in the light of the guidance given by this court in Huang I very much doubt whether it would be possible for this court to refuse to remit a case just because of this court's assumption of what the outcome must be.
  19. I would therefore allow the appeal and remit the case in those terms, repeating as I do that advice must be given to the applicant as to the likely outcome of that remission; but the justice of the case demands that that remission should take place.
  20. LORD JUSTICE BROOKE: I agree, and I agree in particular with the last words spoken by Buxton LJ. I would stress, as he does, that this is an exceptional case and the court is taking an exceptional course. The court is now again and again seeing distressing examples of man's inhumanity to man drawn from unhappy countries in different parts of the world. This case is all about the experience of a young woman aged between 18 and 21 between 1999 and 2002 in a small community in the north of Sri Lanka which was dominated by the Tamil Tigers. Her twin brother had disappeared when she was 16. Her mother and sister left home, no doubt for their safety, when she was 18. At the end of that year her home was visited by soldiers from the Sri Lankan army, and she was raped. Eighteen months later she was detained for three days, tortured and gang-raped by three soldiers in the Sri Lanka army and left unconscious and naked on the roadside. The following year the Tamil Tigers came to her house and arrested her. They tortured her by kicking her and hitting her with gumboots and threatened to shoot her.
  21. Her father took the view that it was no longer safe for her to stay in Sri Lanka. He referred to his son going missing. He did not know whether he was alive or dead. It was very disheartening for him as well as for her when people talked derisively about her, relating to the fact that she had been raped. At least she was still alive, and it was in those circumstances her father with the help of an uncle arranged for her to go to Colombo for five days. She then went to Malaysia, kept in hiding for six months and then came to this country where she was reunited with her mother and her sister.
  22. For the reasons Buxton LJ has given, the Human Rights Act aspects of this case were not properly explored before the adjudicator. The law the adjudicator was applying was different then. When the Immigration Appeal Tribunal was dealing with the matter they too were applying a law which had changed but was certainly not consistent with the law as it is now understood from the cases of Razgar and Huang. In these circumstances I agree that this is a case where justice demands that this court allows the appeal and remits it to a fact-finder to hear all the facts against the background of the law as it now stands.
  23. I therefore agree that this appeal should be allowed.
  24. SIR ANTHONY CLARKE: I agree with both judgments.
  25. (Appeal allowed; no order as to costs).

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