Tribunal decisions

The decision

Upper Tribunal

(Immigration and Asylum Chamber)
Appeal Number: PA/07751/2019

THE IMMIGRATION ACTS

Heard at Field House
On the 1 April 2022
Decision & Reasons Promulgated
On the 10 May 2022

Before

UPPER TRIBUNAL JUDGE GLEESON

Between

B N (Sri Lanka)
[NO ANONYMITY ORDER]
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the appellant: Ms Charlotte Bayati of Counsel, instructed by S Satha & Co, solicitors
For the respondent: Mr Tony Melvin, a Senior Home Office Presenting Officer
DECISION AND REASONS

Anonymity order
Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) The Tribunal has ORDERED that no one shall publish or reveal the name or address of B N who is the subject of these proceedings or publish or reveal any information which would be likely to lead to the identification of him or of any member of his family in connection with these proceedings.
Any failure to comply with this direction could give rise to contempt of court proceedings.

Decision and reasons
1. The appellant appeals with permission from the decision of the First-tier Tribunal dismissing his appeal against the respondent’s decision on 2 August 2019 to refuse him refuse to grant her international protection under the Refugee Convention, humanitarian protection, or leave to remain in the United Kingdom on human rights grounds.
2. The appellant is a citizen of Sri Lanka and is of Tamil ethnicity, born in 1990 and is now 32 years old. His protection claim is based on sur place pro-separatist activity but also a claimed history of family and personal links to the LTTE both during and after the Sri Lankan civil war, which ended in May 2009.
3. Basis of claim. When in Sri Lanka, the appellant was a member of the Tamil National Alliance (TNA), a political group which combines four Tamil groups which have accepted the post-war status quo and the political route to Tamil representation in Sri Lanka.
4. The TNA has 10 Members in the Sri Lankan Parliament. Its member organisations are the Eelam People's Revolutionary Liberation Front (EPRLF), Illankai Tamil Arasu Kachchi (ITAK), People's Liberation Organisation of Tamil Eelam (PLOTE) and the Tamil Eelam Liberation Organization (TELO).
5. The appellant supported and helped the Liberation Tigers of Tamil Eelam (LTTE) when in Sri Lanka, and has engaged with the Transnational Government of Tamil Eelam (TGTE) since coming to the UK, attending demonstrations against the Sri Lankan government. He relies in this appeal on ill-treatment during detentions in Sri Lanka in 2016 and 2017 and on his sur place activities in the UK.
6. Vulnerable appellant. The appellant is a vulnerable person and is entitled to be treated appropriately, in accordance with the Joint Presidential Guidance No 2 of 2010: Child, Vulnerable Adult and Sensitive Appellant Guidance. His mental health difficulties are such that he is not considered to be fit to give oral evidence, so the hearing proceeded on submissions alone.
7. Mode of hearing. The hearing today took place face to face.
Background
8. The appellant’s account, which it has not been possible to test in cross-examination, is as follows. He comes from a middle class, educated, LTTE supporting family. An uncle of his was killed in the Sri Lankan civil war and is an LTTE ‘martyr’. The appellant and his late mother were strong LTTE supporters. The appellant undertook a number of activities for the LTTE, both during and after the end of the civil war.
9. Despite the assistance given to him by the EPDP, the appellant was not willing to join or train with them. Following his refusals, the EPDP threatened to arrange his arrest if he did not join them.
10. In January 2007, when he would have been 17 years old, the appellant was arrested at his home, and detained on suspicion of providing goods to the LTTE. He was beaten, both during the arrest and later when he was interrogated. His mother was beaten during the arrest.
11. The appellant was released with the intervention of the Eelam People’s Democratic Party (EPDP), a pro-Government political organisation in Sri Lanka, following payment of a bribe by his family. He signed a document and was warned not to continue helping the LTTE.
12. After his release, and despite the warning to desist, the appellant returned to helping the LTTE, smuggling weapons past a check point on four or five occasions in 2008, without being detected.
13. In September 2010, 16 months after the end of the civil war, the appellant left Sri Lanka. He was 20 years old then. He flew to Malaysia using a passport to which he was not entitled, in a different name. Home Office records indicate that he remained in Malaysia for two years.
14. Two applications for UK student visas were made from Chennai, India, one on 11 February 2011 and one on 9 May 2011, both in the name the appellant uses in these proceedings.
15. In April 2012, age 22, the appellant travelled on from Malaysia to Italy, having been issued with a marriage visa (presumably actually a fiancé visa) after an Italian woman attended the Italian Embassy in Sri Lanka and told the staff there that she had agreed to marry him. The appellant did not remain in Italy: on 20 April 2012, he continued his journey by car to France, where he made two unsuccessful asylum applications. He was fingerprinted in France on 4 June 2012.
16. The appellant has produced a death certificate dated 1 October 2013, with English language translation, which records his mother’s death in Sri Lanka on 26 September 2013, from breast cancer. She was 45 years old.
17. On 20 April 2014, aged 24, the appellant entered the UK clandestinely by car, claiming asylum the same day. His claim was rejected on third country grounds as France had accepted responsibility for him under the Dublin III Regulations. The appellant travelled back to France on 2 April 2016 from the UK, before he could be removed under the Dublin III Regulations. He spent a week in France, another two weeks in an unidentified country, and reached Serbia in late April 2016 or early May. In Serbia, he was arrested and deported to Sri Lanka, via Dubai.
18. The appellant’s account is that he was arrested and detained on three occasions after his return to Sri Lanka: 8 March 2016, 11 December 2016 and 21 January 2017. On each occasion, he had been participating in LTTE Heroes Day celebrations. There is a difficulty with the March 2016 date, as he seems to have been in the UK then.
19. On 1 January 2018, now aged 27, the appellant left Sri Lanka again via Malaysia, using a false passport provided by his agent. He then travelled on, via an unknown country, arriving in the UK from France on 12 February 2018. Third country proceedings under the Dublin III Regulations no longer apply because of the long delay in removing him to France from the UK.
20. In September 2018, the appellant made a fresh claim application for asylum from within the UK and his asylum interview took place on 21 June 2019. The refusal letter was dated 2 August 2019.
21. The appellant appealed to the First-tier Tribunal.
First-tier Tribunal decision
22. The First-tier Tribunal dismissed the appeal.
23. The appellant appealed successfully to the Upper Tribunal and on 10 March 2020, I set aside the First-tier Tribunal decision for remaking in the Upper Tribunal.
24. On 2 May 2020, during the Covid 19 pandemic, I gave directions for the future conduct of this appeal. I considered that as allegations of torture in detention in Sri Lanka were to be considered, and the appellant was a vulnerable witness, the interests of justice required a face-to-face hearing. I gave directions for such a hearing to take place in June or July 2020.
25. Unfortunately, due to the pandemic, it was not possible to list the hearing until 1 April 2022, some two years later than originally planned. In the intervening period, the appellant’s mental health has deteriorated and in an addendum report, Dr Dhumad stated that (contrary to his opinion in September 2019) the appellant was now unfit to give oral evidence. The decision in this appeal is therefore to be remade on the documents and submissions alone, including skeleton arguments from both representatives.
26. That is the basis on which this appeal came before the Upper Tribunal for remaking.
Upper Tribunal proceedings
27. The appellant’s claimed fear is of the Sri Lankan authorities, by reason of his ill-treatment there in 2016 and 2017, and his more recent sur place activities in the UK in support of the TGTE. The appellant is not well enough to give evidence, so his claim must be assessed primarily on the other evidence before the Tribunal.
Cousin’s evidence
28. The only live evidence was that of the appellant’s male relative, who described himself as his ‘cousin’ but is in fact the husband of the appellant’s maternal first cousin. I have omitted his name as it would enable the appellant to be identified and will refer to him in this decision as ‘the husband’. The husband adopted his unsigned, undated proof of evidence as his primary evidence, and I treat it as his evidence-in-chief.
29. The husband is 50 years old and comes from Jaffna, as does the appellant. He is a British citizen. In his witness statement, the husband said he did not really have much idea of the problems the appellant faced in Sri Lanka: whenever he tried to probe that, however gently, the appellant would become tearful and close off completely. The appellant found talking to anyone incredibly difficult: at best, he would say a few words to his relative. The husband had decided not to ask questions.
30. The husband took the appellant to his GP, and for counselling. The appellant was ‘under heavy medication’:
“[The appellant] is often very withdrawn and distant. Most of the time, he sits and stares like he’s daydreaming. It’s strange, because he is so quiet, and whenever I ask him what he’s doing, he doesn’t bother to respond. Whenever we talk about his immigration case he will start crying, and then become even more distant. Recently he has started saying things like there’s no point to living if he’s going to go back to Sri Lanka. …He said that it would be better to die here, in my hands, than to die at the hands of the [Sri Lankan] authorities, because they will torture and humiliate him. I am also aware how authorities will torture. …”
The husband had been unable to help the appellant with his problems in Sri Lanka but now had a chance to do something for him here. He wanted to do ‘everything I can to nurse him back to his former self and he will at least have a chance to get better’.
31. In oral evidence, the husband explained that it was his wife, not he, who was the cousin. His wife’s mother and the appellant’s father were siblings. As far as he knew, the appellant was only being prescribed sleeping pills now. He was quiet, and did not talk to the husband or his wife, so they just gave him the medication, the wife doing it if the husband was not present.
32. In cross-examination, the husband said that he and his wife came to the UK in 1999.
33. The husband met the appellant first when he was brought to their home in 2016 or 2017, and he had lived with the couple since then. The husband was not exactly sure which year it was: he was unaware of the appellant being in the UK before 2016. The husband was aware that the appellant had lost his mother, but that was before he came to live with them.
34. The husband was asked about the screening interview, in which the appellant mentioned two different cousins as his UK relatives, but not the husband or his wife, the appellant’s maternal cousin. He said that the other cousins were relatives on the paternal side.
35. The husband had not mentioned the demonstrations attended by the appellant in his statement. He described what would happen: the appellant would say he was going to a demonstration. The husband or his wife would ask with whom, and the appellant would say, with a friend. Sometimes, the husband would check the arrangements with whichever friend the appellant mentioned. The husband and his wife did not have time to focus on this: the appellant would go out, with whoever, and come back in the evening.
36. The husband took the appellant to the doctor whenever his medications ran out. The appellant took two medications. The husband thought they were for sleeping but was not sure. He could not remember what the tablets were. Sometimes, the appellant refused to take his medication. At other times, he would be banging and breaking things, saying ‘I’m going to die here’, and hitting his head, and so on. It was his wife who took care of the appellant.
37. Since he had moved in with them, these outbursts had gradually diminished, due to his wife’s care. The wife would calm the appellant down, giving him food and speaking to him.
38. In answer to questions from me, the husband said that his wife, the appellant’s maternal cousin, knew the paternal cousins he had mentioned in his screening interview. They were not in the UK, but they did speak to the appellant from time to time. There was a brother and a daughter on that side in Sri Lanka, and perhaps his wife spoke to them, but the husband had no contact.
39. In re-examination, the husband confirmed that as at the date of hearing on 1 April 2022, the appellant had been living with him and his wife for 5-6 years.
40. With leave, Mr Melvin asked some clarificatory questions. The husband knew nothing about the appellant having told the Home Office that he arrived in 2018: he was quite clear that the appellant had been living with him and his wife since 2016 or 2017.
41. In re-examination, the husband said that the appellant came to them directly from Sri Lanka. He had not known the appellant when he lived in the UK previously.
Appellant’s evidence
42. There are two witness statements from the appellant, neither of which has been tested in cross-examination.
43. His first witness statement is dated 10 September 2019. The witness statement is signed, and states that it was read back to the appellant in Tamil. There is no certificate from the interpreter.
44. The appellant adopted the contents of his asylum screening interview on 14 November 2017 and his asylum interview on 15 April 2018. The appellant acknowledged that he had overlooked mentioning some of his arrests in Sri Lanka in his screening and asylum interviews: he said this happened because he was overwhelmed by being detained, and unable to focus on the questions being asked of him. He had told the doctor at the screening interview that he was suffering memory loss.
45. The appellant comes from a middle-class Tamil family from Jaffna in the North of Sri Lanka, and is an Eelam Tamil. He had secondary education up to A level and studied for a time at university. He worked as a mason with his father.
46. The appellant’s maternal uncle was an LTTE martyr, who died during the civil war. The appellant and his mother supported the LTTE. He helped the LTTE with its Heroes’ Day, which falls on November 27 each year.
47. On 8 or 9 January 2007, the appellant was arrested at home by the Sri Lankan army, for transporting weapons and clothes for the LTTE. He was arrested at home, and they beat the appellant and his mother there during the arrest. The appellant was then interrogated about his martyr uncle, about why he was smuggling goods for the LTTE, his LTTE connections and so on. He was beaten with sticks, and iron rods. He was kicked, slapped and punched.
48. The appellant told them nothing. After 10 days, with the help of the EPDP, and on payment of a bribe, the appellant’s grandfather obtained his release, with reporting conditions. The appellant signed a form when being released. He was told that he could not leave Sri Lanka without a pass from the authorities. The appellant did not try to leave Sri Lanka: he waited, hoping things would improve after the end of the war.
49. During 2008, the LTTE asked the appellant to transport weapons for them, on about four or five occasions in a 3-4 month period. He collected them in a box, covered them in soil and sand, and passed through the checkpoints undetected. The appellant also helped to hide LTTE members in the turrets of the local Hindu temples until the army roundups in Jaffna District were over. The Sri Lankan army never found out about the appellant hiding LTTE members and transporting weapons. His reporting conditions continued into 2009, when the civil war ended.
50. In May 2009, the LTTE was defeated by the Sri Lankan Government. After the fall of the LTTE, the EPDP regarded themselves as the sole spokesmen of the Tamil people, and gave the appellant ‘stress and pressure’ to join them. The EPDP required the appellant to work for them, making sandbags and setting up camps.
51. On 25 November 2011, the appellant was arrested again, during his University studies. He had been putting up LTTE Heroes Day posters at the University for 5 days, although his family lived in an army-controlled area. He was arrested at home: the soldiers beat the appellant, and beat and kicked his mother.
52. The appellant was taken to Nunavil Army Camp and kept there until 2 December 2011. He was beaten with wooden sticks, ropes and pipes, kicked and punched, and told that he had not learned his lesson. A bribe was paid again for his release, via the EPDP. As before, the appellant signed a form and was warned not to continue with such activities and to get on with his studies.
53. The EPDP then said that the appellant must attend a training camp in Jaffna. He refused. They said that they would find an excuse to have him re-arrested. His uncle arranged the appellant’s departure from Sri Lanka, with the help of an agent. He travelled through Katunayake Airport on a false passport.
54. The appellant went to France in 2012, where he spent two years. He applied twice for asylum but was not successful. During this time, his mother died of cancer on 26 September 2013, in Sri Lanka.
55. On 20 April 2014, the appellant came to the UK. He claimed asylum and was placed on reporting conditions. The appellant was not optimistic about being granted international protection here, so with the help of an uncle who had contacts in Sri Lanka, he set out again, thinking he was going to Canada, where he might have a better chance of a successful asylum claim. In Serbia, he was arrested at the airport while trying to transit to a plane for Canada. He was removed from Serbia to Sri Lanka.
56. The appellant arrived back in Sri Lanka on 8 March 2016, where he was arrested before passing immigration control and detained for a month, on charges of illegal departure and return from Sri Lanka. That implies that he was on either a stop or a watch list, given that he was picked up at the airport. His interrogators wanted to know why he had left the country, where he went, and what he did there. The appellant was detained, beaten, kicked, punched and slapped, then released on payment of a bribe.
57. The agent kept the appellant in a hotel with him for three months: there was no more talk of travelling to Canada. The appellant decided that the best thing he could do was to return to his village, resume work as a mason, and work for the LTTE cause. In his village, the appellant went from house to house, speaking about the work of the TNA and helping with local Council elections. He also helped members of the Tamil community, helped clean the LTTE Heroes Cemetery, erected flags and made arrangements for people to come and pay their respects.
58. On 11 December 2016, the appellant was arrested in Chavakachcheri and detained until 20 December 2016. This time he was slapped, kicked, punched and beaten with sticks and iron rods, and burned with cigarette butts. He was released, with a warning to cease working with the TNA or for LTTE Heroes Day.
59. On 31 January 2017, the appellant attended a demonstration about the Koppapilawai land grab. He was vocal at the demonstration, chanting slogans. He was arrested again and questioned about why he attended the demonstration and why he supported the TNA. He was released.
60. The appellant tried to hang himself with a rope in Sri Lanka, but fortunately failed. A friend stopped him.
61. In December 2017, the Vavuniya CID arrested the appellant again and took him to Joseph Camp. He was asked about his body scarring. They were aware of his involvement in the Koppapilawai demonstration and that he had been repeatedly warned to stop his involvement with the Tamil Heroes Day activities and so on. He was beaten, slapped and kicked. The appellant’s father paid a bribe, and the appellant was released. He went straight to Colombo and travelled to the UK, via Malaysia, an unknown country, and France. He arrived here on 12 February 2018.
62. In the UK, the appellant lived with a cousin. He could not sleep and was given sleeping tablets. He was supported by his cousin, but he felt that he was a burden to her.
63. He had tried to hang himself in a park near his home here in 2018. GP records confirm that this occurred on 7 May 2018, the appellant using bed sheets tied around a tree to make a noose, and that a friend prevented the attempt succeeding. The appellant was taken to hospital in an ambulance.
64. His uncle’s friend, and the friend’s family, were also trying to look after the appellant but he could not cope with his life. He often felt suicidal, had nightmares and flashbacks. He had memory loss and poor concentration, making it difficult to focus and remember things which had occurred in the past. The loss of his mother haunted the appellant: he had not been able to be with her or attend her funeral.
65. The appellant was receiving moral support from Tamil groups in the UK, in particular the Transnational Government of Tamil Eelam (TGTE), which is a banned organisation in Sri Lanka. Attending TGTE meetings was really the only time he left the house. He found it therapeutic to attend demonstrations and have solidarity against Sinhala oppression of Tamils in Sri Lanka, and also with Muslim Sri Lankans who were being targeted as well. Otherwise, he was too scared and worried to go anywhere alone.
66. The appellant’s fear on return was of the Sri Lankan authorities. He knew that he was wanted, due to his family’s link with the LTTE, and also on more than one occasion he had signed documents which he worried about. He believed that he would be on the stop and detain list if returned. The appellant had rebuilt his life in the UK and could not return now to Sri Lanka.
67. The appellant’s second witness statement is signed by him but not dated. He records his difficulty in remembering dates, and seeks to correct various chronological errors in his earlier statement and his asylum interview, in particular in relation to where he was in March 2016. It is said to have been read over to him in Tamil, but there is no certification by the interpreter. Absent the ability for this second statement to be tested in cross-examination, I have been unable to place any weight on the corrections made therein.
68. I have also considered the record in the First-tier Tribunal decision of the evidence the appellant then gave. Although the decision itself has been set aside, the evidence then given is the only live evidence that this appellant has given and is relevant to my decision for that reason. Its accuracy has not been challenged.
69. The appellant’s primary evidence in the First-tier Tribunal in October 2019 was as set out above. In cross-examination, the appellant said that his last detention in Sri Lanka was the one from 29 November 2017 to 2 December 2017, and that he had not been rearrested in 2018. He was still in contact with his father but had not asked his father to obtain confirmation from the lawyer who had helped to achieve his release. The authorities had come looking for him in 2018 on several occasions, the last time before Heroes Day in November 2018. He had not asked his father to provide a statement about that.
70. The last UK demonstration the appellant had attended was in March 2018, shortly after his arrival: he did not know the purpose of that demonstration, or who was on trial, but he demonstrated with others outside a court here when told to do so. The appellant said he had been arrested five times, not four as stated in his interview. He was being treated by his GP and receiving counselling for his mental health issues ‘whenever they sent him a letter’. He did not know when the next appointment would be.
Medical evidence
Detention centre Rule 35 Report
71. On 17 September 2014, while in detention at Tinsley House, the appellant was examined by a Dr Jasna Gvozdenovic there who expressed concern that he might have been tortured. The account then given was of torture in November 2011 in police detention, and scars over the appellant’s body, as well as a sleep problem. The appellant was anxious at times, worried about his future, and would hit his head on the wall, wanting to kill himself.
72. His mother collected the funds to send the appellant abroad. She had been harassed and intimidated by the police in Sri Lanka and the appellant strongly believed that this had contributed to her untimely death in 2013. The appellant had a large supportive family in the UK and had not needed to ask for mental health help here. If released, Dr Gvozdenovic considered that the appellant would benefit from family support and more appropriate psychiatric support.
73. There is a body map with this report: it shows a 10 cm L shaped scar on the appellant’s left back, and a number of round old scars, all from being hit. There were then no cigarette burn scars.
Dr Izquierdo Martin’s report
74. Dr Andres Izquierdo-Martin FRCS FRCEM was Clinical Director of Emergency Medicine Services at North Middlesex University Hospital. He is an experienced Consultant, who has 32 years’ experience in surgery (including reconstructive and plastic surgery) and emergency medicine. He has prepared over 800 medico-legal reports on victims of torture and has a Level 3 Forensic Science certification.
75. Dr Izquierdo-Martin examined the appellant on 2 September 2019 and prepared his report four days later, applying the Istanbul Protocol classification and analysis system. He took photographs of the appellant’s scarring, which the appellant attributed to being beaten with a rope or cable, burned with lighted cigarettes, and other beatings. The L shaped scar was still there, as were the round scars described in 2014.
76. In addition, there were two transverse rectangular scars 6 cm long and 1 cm wide on both sides of his lower back, which the appellant attributed to being beaten. There were now a number of scars on the appellant’s back which he attributed to being burned with a hot cigarette butt during his 2016 detention, and which were ‘consistent with unwillingly and intentionally caused injuries with a hot round object such as a lighted cigarette’.
77. Most of the scars were quiescent, fully matured, and without any doubt older than six months. They were consistent with injuries older than a year, and some of them, given their maturity, likely to be longer ago than that. The appellant had made a good functional recovery from his main physical injuries, but significant residual scarring remained. The scars were slightly unsightly but should not require plastic surgery revision.
78. Dr Izquierdo-Martin did not consider the scars to be self-inflicted, either directly or by proxy. Assessing all the injuries, he considered the appellant’s scarring to be highly consistent with his account of having been tortured.
Dr Saleh Dhumad’s reports
79. Dr Saleh Dhumad MBChB MSc MRCPsych CBT is a consultant psychiatrist with expertise in adult psychiatry, substance misuse, and cognitive behavioural psychotherapy (CBT). He is a member of the Royal College of Psychiatrists, the British Association for Behavioural and Cognitive Psychotherapies, and the Medical Protection Society, with a special interest in post-traumatic stress disorder, in particular in the context of war trauma and victims of torture.
80. Dr Dhumad saw the appellant first on 30 August 2019 and prepared his report on 7 September 2019. His diagnosis, with reference to the International Classification of Disease (ICD-10) criteria, was that the appellant has a Moderate Depressive Episode with psychotic symptoms (ICD-10 Schedule II at F 32.1) and symptoms of PTSD (ICD-10 Schedule III at F 43.1).
81. In his January 2021 Addendum report, Dr Dhumad stated that he had meant to say in September 2019 that the appellant had a Moderate Depressive Episode without psychotic symptoms. No psychotic symptoms had been observed or reported.
82. Dr Dhumad considered that there was a moderate risk of suicide. The appellant had suicidal ideation linked to his fear of deportation to Sri Lanka, where he was frightened that he might be killed. His main protective factor was his family. If threatened with removal, Dr Dhumad considered that the suicide risk would become high and the appellant would suffer a significant deterioration in his mental suffering. Dr Dhumad did not recommend removal to Sri Lanka for this reason.
83. The appellant had received the recommended treatment of trauma focused CBT combined with medication. He remained unwell and was unlikely to make progress until he had a ‘safe resolution of his fear’.
84. Dr Dhumad considered the appellant was fit to attend a hearing and give evidence, with adjustments for his vulnerability. He recommended extra time, and breaks. The appellant was not assessed to be fit to fly.
85. On 4 January 2021, Dr Dhumad saw the appellant again, by video link, for an hour, and provided an Addendum report the same day. He relied on his September 2019 report and had seen Dr Izquierdo-Martin’s report from September 2019 also.
86. Dr Dhumad noted that the appellant’s mental health fluctuated and had worsened over the sixteen months since he last saw him. He was having vivid flashbacks and nightmares, much worse due to his fear of deportation. His counselling sessions had been cancelled in March 2020 due to the pandemic lockdown: he had a telephone conversation with his general medical practitioner in September 2020 and was re-referred for counselling, but no appointment had come through yet.
87. Dr Dhumad found the appellant’s mental state broadly unchanged, although he felt more hopeless and had feelings of worthlessness. Dr Dhumad corrected his September 2019 diagnosis, confirming that the appellant had no psychotic symptoms on either occasion. He did still have nightmares, flashbacks, hypervigilance and avoidance behaviour.
88. At [4.11]-[4.12], Dr Dhumad said this:
“4.11 There is some evidence of significant cognitive impairment; he has poor concentration, memory difficulties and poverty of speech. He has been feeling hopeless, distressed and crying, he reported that he lacked a point in living, he has considerable difficulty in recollection of events and in particular, remembering dates. It is my opinion that this is due to his PTSD, depression and cognitive impairment.
4.12 He has difficulties recalling dates of past and recent events, such as demonstrations, where there is clear evidence that he did attend (photographs). This is common presentation in PTSD patients, they have poor registration of events, particularly related to traumatic incidents, and therefore they fail to recall, or the mind creates completely different details. This in turn can impact directly on their ability to recall the most basic of information.”
89. The appellant’s risk of suicide remained moderate, unless deportation came closer. Hopelessness has a significant and serious association with suicide risk. He was receiving Citalopram 20 mg, an antidepressant medication, prescribed by his general medical practitioner, but not the CBT which his condition also needed, and Dr Dhumad recommended urgent referral for psychological therapies.
90. The appellant was now neither fit to give evidence nor to fly. In relation to his inability to testify, Dr Dhumad said this:
“6.6 In my opinion, he is unfit to give oral evidence in court. He is depressed, hopeless and very anxious, and his concentration is poor, and he is suffering from PTSD with clear cognitive impairment, and memory difficulties. Therefore, in my opinion, he would not be able to follow the proceedings meaningfully; it is also likely that his mental health will deteriorate further without support. As I have mentioned above, he has memory difficulties and those memory difficulties, while clearly present when I last met him, have increased since then. … Therefore, in my opinion some of his evidence is unlikely to be reliable and/or he will struggle to recall dates dues to his memory difficulties which are associated with his PTSD.”
91. There is no expert medical evidence more recent than January 2021.
Other medical information
92. The appellant has produced a photograph of a number of medication packets on a bedspread. There are 8 packets of Citalopram (10 mg and 20 mg), two of Betamethasone Valerate 0.1%, and one course of Amoxicillin.
93. A copy letter from Havering Psychological Services dated 27 February 2020 indicates that a referral was made but that the first available appointment was Friday 6 March 2020. A letter from the same source on 1 October 2021 advised that the appellant had not attended an appointment set for 16 September 2021, and that he had not responded to multiple telephone calls and voicemail messages. He had been discharged from the service.
Other evidence
94. The appellant produced an appointment letter dated 11 May 2017 addressed to Brigadier A P I Fernando, from Ms Amari Wijewardene the Sri Lankan High Commissioner in the UK, in connection with his appointment as Minister Counsellor Defence at the High Commission. He was required to ensure the security of the High Commission premises.
95. Ms Wijewardene attached a Job Description requiring the monitoring and reporting of any anti-Sri Lanka activities in the UK, including LTTE activities, and any anti-government protests. The High Commissioner was to be consulted and appropriate strategies planned and executed to counter any planned protests.
96. There is a letter dated 9 February 2022 from Mr Sockalingam Yogalingam, who describes himself as the Deputy Minister for Prime Minister Office, with the TGTE in London. Again, the witness did not appear, and his statements have not been tested in cross-examination. After setting out the aims and objectives of the TGTE, Mr Yogalingam says that the appellant is one of the victims of crimes by the Sri Lankan government who now works with the TGTE:
“He joined as volunteer and volunteered in organising several public events in the UK, in support of creating a free Tamil Eelam in Sri Lanka. He attends meetings, events and public demonstrations. Due to Covid 19, TGTE did not hold many activities, but he attended to those we carried out.
[The appellant] is very committed and dedicated to the Tamil Freedom Struggle and he has participated in the following activities of TGTE, for example: participated for ‘Heroes Day – Maaveraar Day’ in Excel, participated for fasting protest in front of 10 Downing Street for Mullivaikkal Remembrance Day, participated for ‘TGTE National Sports Meet 2021, protest in front of Westminster Magistrates’ Court for ‘Arrest Brigadier Priyanka Fernando for cut throat suggestion to peaceful Tamil protesters’, protest in front of Sri Lankan High Commission for ‘Sri Lanka’s 74th Independence Day’, protest against President Gotabaya Rajapaksa visit to ‘COP 26’ and many more.
He contributes to the best of his ability to campaign against the ongoing genocide in Sri Lanka and requiring independence investigation against the war crimes committed by the former Sri Lankan President Mahinda Rajapaksa and Sri Lankan government. He is an ardent supporter of our mission, and he desires the independence for the Tamils in Sri Lanka. He continues to express his political aspiration publicly.”
97. The appellant has produced photographs of his attending some of these events, mainly in 2019 but including a protest in Scotland in 2021, and one in 2022 for Sri Lankan Independence Day. He produced a copy of his TGTE membership card issued in September 2018, with an expiry date of September 2023.
98. There are also two press reports about war crimes and gross human rights violations in Sri Lanka in 2019, and the return to power of the Rajapaksa brothers that year.
Submissions
99. I heard submissions from Mr Melvin and Ms Bayati, against their respective skeleton arguments.
100. For the respondent, Mr Melvin contended that the Tribunal should dismiss the appellant’s ac as totally lacking in credibility and find that the risk to him on return from his sur place TGTE activities ‘relies on his membership being detected on arrival in Sri Lanka’.
101. In relation to the medical evidence, Mr Melvin submitted that Dr Dhumad’s evidence indicated that the appellant’s mental health problems were attributable principally to his mother’s death in 2013 rather than what happened to him in Sri Lanka. The appellant was not relying on his mental health problems ‘to bolster his asylum claim’.
102. Mr Melvin’s skeleton argument appears incomplete: at [33], there is a subheading to deal with Dr Izquierdo-Martin’s report on the appellant’s scars, but there was no submission under that subheading. At [35] under the heading ‘Conclusion’, Mr Melvin stated that ‘the respondent does not accept that’ but the final sentence ends there.
103. In his oral submissions, Mr Melvin relied on the refusal letter and his skeleton argument. The respondent accepted only the appellant’s nationality. The rest of his evidence, including the evidence concerning ill-treatment in detention in Sri Lanka was rejected.
104. The appellant had been discharged for non-attendance at his counselling appointments and was currently not receiving any counselling for his mental health issues. The evidence regarding suicide risk was confusing and should be discounted.
105. The husband’s evidence had been both unreliable and contradictory and should be given no weight. Indeed, on the husband’s evidence, the appellant had been in the UK, living with his cousin and the husband, when the alleged torture occurred in detention in Sri Lanka.
106. The appellant had instructed competent and experienced solicitors who would have produced more extensive evidence if it existed. In particular, the sur place activities were minor and all in 2019 and the appellant’s TGTE involvement, despite the letter confirming it, should be given very little weight. There was some attendance at demonstrations, the significance of which was a matter for the Tribunal.
107. Mr Melvin asked me to dismiss the appeal.
108. For the appellant, Ms Bayati relied on her skeleton argument. It is somewhat discursive and of less assistance to the Tribunal for that reason, being composed principally of quotations from case law and the evidence before the Tribunal. Ms Bayati asked that the appellant be treated as a vulnerable witness, which I have done. At [31], she noted that the appellant had provided a generally consistent account of his history, despite his difficulty with dates, which he had mentioned specifically in his screening interview.
109. The appellant had made suicide attempts in the past and was considered still to be a suicide risk. Dr Dhumad considered his mental health to be typical of a psychological response to a traumatic incident such as torture.
110. The evidence of the appellant’s sur place activity in the diaspora, for the TGTE, was clear and came within the ‘involvement at a significant level’ guidance in KK and RS. He had strong familial connections with the LTTE and was likely still to be on the ‘watch’ list at the airport. The appellant had been consistent in his involvement in separatist activities for many years.
111. Overall, the appellant had discharged the burden on him of showing, to the lower standard of proof applicable in international protection claims, that if returned to Sri Lanka he would have a well-founded fear of persecution and/or substantial grounds for believing that there was an Article 3 ECHR risk on return.
112. In oral submissions, Ms Bayati observed that the respondent’s refusal letter had not challenged the appellant’s account of his return to Sri Lanka in 2016. The alleged applications for entry clearance from India were not determinative of the appeal against the appellant. India had been where such applications were made for Sri Lankan citizens for a number of years now.
113. Dr Izquierdo-Martin’s opinion in his report was that the scarring which the appellant had was highly consistent with the account he had given. Ms Bayati asked me to look at the body map which accompanied a rule 35 report from the doctor in the detention centre. The cigarette burn scars were not mentioned on that report and were, therefore, indicative of later mistreatment. Dr Izquierdo-Martin’s evidence was very clear and should be accepted by the Tribunal.
114. The appellant had produced evidence of regular attendance at TGTE events and Heroes Day celebrations. He fitted the KK and RS risk profile. It was the perception of the risk he posed and the activities he had undertaken which was the risk. The country evidence was clear that involvement with the TGTE and with Heroes Day celebrations was a risk factor for detention and torture in Sri Lanka now.
115. Even if the appellant were not detained on return, he could not be expected not to continue working for the LTTE and the separatist cause, which would put him at risk again: see HJ (Iran) v Secretary of State for the Home Department (Rev 1) [2010] UKSC 31 at [35(d)] in the judgment of Lord Hope JSC, with whom Lord Rodger JSC, Lord Walker JSC, Lord Collins JSC and Sir John Dyson SCJ agreed.
116. The appellant was entitled to be granted international protection and Ms Bayati asked me to allow the appeal.
Jurisprudence
117. I have considered the expert reports in the light of the Upper Tribunal’s latest guidance in HA (expert evidence: mental health) Sri Lanka [2022] UKUT 111 (IAC). I am satisfied that the reports meet the professional standard required of them and I treat their conclusions as reliable.
118. I have also had regard to the country guidance given by the Upper Tribunal in KK and RS (sur place activities: risk) Sri Lanka CG [2021] UKUT 130 (IAC) (upheld by the Court of Appeal in KK and RS (Sri Lanka) v Secretary of State for the Home Department [2022] EWCA Civ 119). The Upper Tribunal in KK and RS restated the country guidance given in GJ and others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 319 (IAC).
119. Regarding the approach of the Sri Lankan authorities (GoSL) to separatist organisations and activities, the Upper Tribunal in KK and RS held as follows:
(1) The current Government of Sri Lanka (“GoSL”) is an authoritarian regime whose core focus is to prevent any potential resurgence of a separatist movement within Sri Lanka which has as its ultimate goal the establishment of Tamil Eelam.
(2) GoSL draws no material distinction between, on the one hand, the avowedly violent means of the LTTE in furtherance of Tamil Eelam, and non-violent political advocacy for that result on the other. It is the underlying aim which is crucial to GoSL’s perception. To this extent, GoSL’s interpretation of separatism is not limited to the pursuance thereof by violent means alone; it encompasses the political sphere as well.
(3) Whilst there is limited space for pro-Tamil political organisations to operate within Sri Lanka, there is no tolerance of the expression of avowedly separatist or perceived separatist beliefs.
(4) GoSL views the Tamil diaspora with a generally adverse mindset but does not regard the entire cohort as either holding separatist views or being politically active in any meaningful way.
(5) Sur place activities on behalf of an organisation proscribed under the 2012 UN Regulations is a relatively significant risk factor in the assessment of an individual’s profile, although its existence or absence is not determinative of risk. Proscription will entail a higher degree of adverse interest in an organisation and, by extension, in individuals known or perceived to be associated with it. In respect of organisations which have never been proscribed and the organisation that remains de-proscribed, it is reasonably likely that there will, depending on whether the organisation in question has, or is perceived to have, a separatist agenda, be an adverse interest on the part of GoSL, albeit not at the level applicable to proscribed groups.
(6) The Transnational Government of Tamil Eelam (“TGTE”) is an avowedly separatist organisation which is currently proscribed. It is viewed by GoSL with a significant degree of hostility and is perceived as a “front” for the LTTE. Global Tamil Forum (“GTF”) and British Tamil Forum (“BTF”) are also currently proscribed and whilst only the former is perceived as a “front” for the LTTE, GoSL now views both with a significant degree of hostility.
(7) Other non-proscribed diaspora organisations which pursue a separatist agenda, such as Tamil Solidarity (“TS”), are viewed with hostility, although they are not regarded as “fronts” for the LTTE.
(8) GoSL continues to operate an extensive intelligence-gathering regime in the United Kingdom which utilises information acquired through the infiltration of diaspora organisations, the photographing and videoing of demonstrations, and the monitoring of the Internet and unencrypted social media. At the initial stage of monitoring and information gathering, it is reasonably likely that the Sri Lankan authorities will wish to gather more rather than less information on organisations in which there is an adverse interest and individuals connected thereto. Information gathering has, so far as possible, kept pace with developments in communication technology.
120. The Tribunal found that both ‘stop’ and ‘watch’ lists are still in force, and that returnees on the ‘watch’ list fall into two sub-categories:
19. …(i) those who, because of their existing profile, are deemed to be of sufficiently strong adverse interest to warrant detention once the individual has travelled back to their home area or some other place of resettlement; and (ii) those who are of interest, not at a level sufficient to justify detention at that point in time, but will be monitored by the authorities in their home area or wherever else they may be able to resettle.
121. Whether a person is perceived to have had a ‘significant role’ will be fact-specific, with the following factors being considered:

21. …
i. the nature of any diaspora organisation on behalf of which an individual has been active. That an organisation has been proscribed under the 2012 UN Regulations will be relatively significant in terms of the level of adverse interest reasonably likely to be attributed to an individual associated with it;
ii. the type of activities undertaken;
iii. the extent of any activities;
iv. the duration of any activities;
v. any relevant history in Sri Lanka;
vi. any relevant familial connections.
122. A risk of detention gives rise to a risk of persecutory treatment and/or serious harm in breach of Article 3 ECHR: see [25]. Internal relocation is not an option in post-conflict Sri Lanka: see [26].
Analysis
123. The evidence in this appeal is unsatisfactory. The appellant is not well enough to be cross-examined to support his account, and the evidence which one might have expected from his father in Sri Lanka, or his friends with whom he attends demonstrations in the UK, or from his cousin, who seems to be his primary carer here, has not been produced. It is right that the appellant’s dates are chaotic and contradictory.
124. This appellant is a Sri Lankan Tamil, and the medical evidence is that he has been tortured in the past, albeit with limited clarity as to when that occurred. The medical evidence is that he has been tortured and that he has quite a lot of scars, as well as mental health issues which are not confined to the loss of his mother. Dr Dhumad considered that they were the result of his experiences in detention in Sri Lanka.
125. The family history which the appellant has advanced throughout is one of strong LTTE connections, including an LTTE martyr in his family. His personal history of returning to helping the LTTE repeatedly after detention and being warned of the possible consequences if he did so and supporting the TGTE in the UK. It has not been possible to verify or to test the Sri Lankan element of the appellant’s history, but the appellant has advanced it consistently.
126. The most relevant events for the purpose of assessing his current risk are the alleged arrests in Sri Lanka on 11 December 2016, at the airport, and on 29 November 2017, following his attendance at a demonstration. I accept the appellant’s evidence that in 2016, when he returned, he was detained at the airport and questioned there. On each occasion, he was released on payment of a bribe, and warned not to continue his pro-separatist activities. The appellant has not complied with that warning.
127. Mr Melvin’s submission that the appellant should have obtained corroboration of his detentions in Sri Lanka in 2016/2017 is unsound: for the appellant to obtain that evidence, even if he could, would put him at risk by drawing attention to his presence in the UK and his asylum claim here.
128. The appellant is a vulnerable man: he cannot withstand being interviewed in the UK, either by the Home Office or the Tribunal. The husband’s evidence, while not generally very helpful, is clear that the appellant also cannot withstand discussing what happened to him in Sri Lanka, even in the presence of his cousin and the husband, and I do give weight to that part of his evidence. It follows that he would be unable to withstand questioning at the airport on return.
129. I have regard to the difference between the body map in 2014 at Tinsley House, and in 2019 when Dr Izquierdo-Martin examined the appellant. The cigarette burns and the lower back injuries are new in the later report, indicating that abuse occurred between those two dates. I remind myself that paragraph 339K of the Immigration Rules HC 395 (as amended) provides that:
“339K. The fact that a person has already been subject to persecution or serious harm, or to direct threats of such persecution or such harm, will be regarded as a serious indication of the person’s well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated.”
130. In this case, there are no such good reasons. The appellant has produced evidence of an ongoing connection with TGTE in the UK. The TGTE is a proscribed organisation in Sri Lanka which the Sri Lankan government regards as an LTTE front. Photographic evidence shows this appellant attending TGTE and other pro-separatist and anti-government demonstrations in the UK, up to and including this year. There is not much evidence of any attendance during the pandemic period but given the lockdown restrictions imposed on the UK during that period, that is unsurprising.
131. In conclusion, despite the evidential difficulties in this appeal, I am satisfied that the appellant has discharged the primary evidential burden upon him of showing past persecution and/or serious harm. The respondent has not satisfied me that there are good reasons to consider that such persecution and/or serious harm would not be repeated, if the appellant returned to Sri Lanka now.
132. The appellant’s appeal is therefore allowed.

DECISION

133. For the foregoing reasons, my decision is as follows:
The making of the previous decision involved the making of an error on a point of law.
I set aside the previous decision. I remake the decision by allowing the appeal.

Signed Judith AJC Gleeson Date: 4 May 2022
Upper Tribunal Judge Gleeson