Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/10770/2019

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On the 28 April 2022
On the 14 July 2022

Before

UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between

s s
(anonymity directioN MADE)
Appellant

and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the appellant or members of his family. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.

Representation:
For the appellant: Ms A Patyna, Counsel, instructed by Reeves and Co
For the respondent: Mr T Melvin, Senior Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. This is the re-making of the decision in the appellant’s appeal following the previous decision of the Upper Tribunal (a panel comprising Upper Tribunal Judge Norton-Taylor and Deputy Upper Tribunal Judge Froom), promulgated on 2 December 2021. By that decision, the decision of the First-tier Tribunal to dismiss the appellant’s appeal against the respondent’s refusal of his protection and human rights claims was set aside, with a number of relevant findings of fact preserved. The error of law decision is annexed to this re-making decision and the two should be read together.
2. In summary, the appellant had claimed that he had been of adverse interest to the Sri Lankan authorities whilst still in that country and that this had led to detention and, ultimately, an arrest warrant been issued against him. In addition, the appellant claimed that political activities undertaken in the United Kingdom would also have placed him at risk on return.
3. The First-tier Tribunal rejected these assertions, finding the appellant to have been untruthful in material respects and that any sur place activities undertaken in this country would not have led to a risk on return.
4. The error of law committed by the First-tier Tribunal which led to its decision be set aside was narrow in scope. There had been a failure to address the question of whether the appellant genuinely held political beliefs on Tamil separatism and, if returned to Sri Lanka, whether he would wish to express such beliefs. This was described as the HJ (Iran) issue: HJ (Iran) [2010] UKSC 31; [2010] Imm AR 729. The application of the principles set out in HJ (Iran) to Sri Lankan cases was confirmed by the Upper Tribunal in KK and RS (Sur place activities, risk) Sri Lanka CG [2021] UKUT 130 (IAC).
5. Thus, the scope of the re-making exercise in this case is in turn narrow. The appellant does not have an adverse history in relation to his time in Sri Lanka, nor would he be at risk on return in respect of any sur place activities. However, as KK and RS makes clear, an individual who would not otherwise be at risk on return, might still succeed in his/her appeal on an application HJ (Iran) principles: see paragraph 555.
6. The specific questions to be addressed are:
(a) does the appellant holds a genuine belief in Tamil separatism?
(b) if the appellant openly expressed genuinely held Tamil separatist views within Sri Lanka, what would the consequences of this be?
(c) if the appellant does in fact hold a genuine belief in Tamil separatism, would he wish to openly express such beliefs on return to Sri Lanka?
(d) if the appellant desisted from expressing such beliefs, what would be the reason for this?
7. Both representatives agreed at the outset of the resumed hearing that the live issues in the case were as described above.

The evidence
8. The documentary evidence relied on by the appellant now consists of a consolidated bundle, indexed and paginated A1-E5. Amongst other items, the bundle includes three witness statements for the appellant, the most recent of which deal specifically with the HJ (Iran) issue.
9. From the respondent, I have her original appeal bundle, which includes the usual materials, including the reasons for refusal letter, dated 23 October 2019.
10. The appellant attended the hearing and gave oral evidence with the assistance of a Tamil interpreter. That evidence as a matter of record and I do not propose to set out in any detail here. In summary, the appellant adopted his three witness statements and was questioned at some length on his political beliefs.
11. The thrust of the oral evidence was that the appellant was committed to the Tamil separatist cause, that his sur place activities had been undertaken for genuine reasons and that people could not express their views in Sri Lanka because of fear of consequences.
12. One particular aspect of the oral evidence is worthy of mention at this stage. The appellant made reference to his wife and children, all of whom are apparently in the United Kingdom. He suggested that they were dependent on his claim, but subsequently appeared to state that his wife had her own case. There was no documentary evidence on this point.

The parties’ submissions
13. The submissions are a matter of record and I need not set them out in detail here.
14. By way of summary only, Mr Melvin relied on his skeleton argument and the reasons for refusal letter and submitted that the appellant’s evidence on the HJ (Iran) issue was disingenuous. He urged me to either discount or place little weight on evidence relating to the appellant’s wife and children. There had been no evidence of contact between the appellant and any pro-Tamil organisations in Sri Lanka.
15. Ms Patyna relied on her skeleton argument, together with the three witness statements and relevant evidence contained within the appellant’s bundle. The appellant’s evidence should be accepted. He had credibly explained how his political beliefs had evolved from his child in Jaffna through to the present day. He had been able to express his beliefs in the United Kingdom and it was credible that he would wish to do so if returned to Sri Lanka. It was notable, submitted Ms Patyna, that the appellant had only sought legal advice after having attended particular events. In respect of the appellant’s children, although they were young, his explanation to them of his beliefs on Tamil separatism was credible in all the circumstances. As regards pro-Tamil organisations in Sri Lanka, none with any separatist views were permitted to operate there. There was supporting evidence from the TGTE in the United Kingdom.
16. The essential factors urged upon me by Ms Patyna were: (a) the length of time over which the appellant had been engaged in activities in United Kingdom; (b) the preserved finding that the appellant had been active, albeit at a low level; (c ) the involvement of his family in events; (d) his links with the TGTE; (e ) the development of his political beliefs over time.
17. It was submitted that the appellant held genuine beliefs, would wish to express these on return to Sri Lanka, but would not do so because of the fear of the consequences. In light of paragraphs 550 and 555 of KK and RS, the appeal should succeed.

Findings and conclusions
18. In reaching my findings and conclusions, I have taken into account all relevant evidence before me, whether specifically mentioned in this decision or not. I have of course applied the lower standard of proof and borne in mind that an individual may be untruthful about certain aspects of a claim, but tell the truth in respect of others.
19. The First-tier Tribunal treated the appellant as a vulnerable witness. Although I was not expressly asked to do the same, on a precautionary basis I have adopted that approach to the oral evidence. It was abundantly clear that the appellant was fully able to understand and participate in the hearing without any detectable problems. I was satisfied that he understood the interpreter and vice versa and that there were no issues with interpretation during the course of oral evidence. The appellant showed no signs of distress during questioning. Overall, I am entirely satisfied that any vulnerability on the appellant’s part had no material impact on his ability to present his evidence and in respect of the assessment of the reliability of that evidence.
20. I turn next to the preserved findings from the First-tier Tribunal:
(a) the appellant had not been detained by the authorities in Sri Lanka and had no pre-existing adverse history in respect of any actual or perceived inaction to the LTTE (as found by a previous judge in 2015);
(b) the appellant was not suffering from PTSD as a consequence of any claimed ill-treatment received in Sri Lanka;
(c) whilst in the United Kingdom, the appellant had attended some events and had obtained a membership card for the TGTE. However, his profile was not such as would bring him to the adverse attention of the Sri Lankan authorities. In particular, material aspects of his evidence on the nature and extent of the claimed sur place activities were rejected;
(d) the appellant’s family in Sri Lanka had not been harassed by the authorities.
21. Having regard to the preserved findings and the agreed position of the parties, the core factual issue in this appeal is whether the appellant genuinely holds Tamil separatist beliefs and whether, if returned to Sri Lanka, he would wish to openly express those genuinely held beliefs. In addressing that issue I now set out my analysis of relevant aspects of the evidence.
22. It is a fact that material aspects of the appellant’s evidence have been found to be untruthful by two judges in two sets of proceedings. Whilst this is in no way decisive of my assessment of the evidence, it is a relevant factor. I place some weight on this.
23. In his evidence before me, the appellant sought, in part, to link his claimed Tamil separatist views and the wish to express these if in Sri Lanka once again to work done for the LTTE and accusations of him being a terrorist. This of course runs entirely contrary to the adverse findings made by the two previous judges, those of the latest having been expressly preserved. This apparent reliance on matters which have been disbelieved does the appellant’s case no favours and is, in my view, detrimental to my assessment of his overall truthfulness, albeit to a limited extent.
24. The oral evidence relating to the appellant’s wife raises concerns. First, there was distinct confusion in what he said as to whether his wife in fact has a separate protection claim, or whether she and the children are dependents on the appellant (I appreciate Ms Patyna’s position here - her understanding was that the wife is a dependent, although this was not confirmed by the evidence). Ordinarily, this issue would not have any real bearing on the assessment of the appellant’s own evidence. However, the difficulty for the appellant here is that he raised his wife’s position as a means of seeking to explain why she had not provided any evidence in support of his appeal. His evidence was confused and, in my view, evasive. In short, there has been no credible explanation as to why his wife had not provided at least a witness statement. Such evidence could potentially have addressed the issue of whether the appellant genuinely held separatist beliefs and/or whether he had spoken to their children about the Tamil cause. A consequence of this is that a seemingly obvious source of possible corroboration is absent without a satisfactory explanation.
25. The appellant told me in oral evidence that he had spoken to his children about the Tamil cause. As he put it, he had talked about the country situation that led to the “problem” (presumably the civil war and the concept of a Tamil homeland), the meaning of the LTTE flag, and the status of Prabakharan as being “like their grandad”. The ages of his two children only emerged in cross-examination: the eldest was three years old and the youngest only one. I find there to be merit in Mr Melvin’s point (fairly put to the appellant) that these were very young ages at which to be able to apparently comprehend the information provided by the appellant. Whilst Ms Patyna submitted that age-appropriate language would have been used, I find that this aspect of the appellant’s evidence is in fact an embellishment and serves to undermine the reliability of his evidence as a whole. My view on this is only fortified by the absence of evidence from his wife.
26. I accept that the appellant took his wife and perhaps one of his children to an event (or more than one). On any view, this occurrence would be unlikely to add or detract from this case to any great extent. Placing this consideration together with my assessment of the evidence as a whole, I do not accept Ms Patyna’s submission that it demonstrates a genuineness of belief in Tamil separatism. It was, I find, either opportunistic or at best simply convenient.
27. Mr Melvin relied of the absence of any contact made by the appellant with pro-Tamil organisation Sri Lanka as a reason for undermining the genuineness of the appellant’s beliefs. I do not accept that. The core of the appellant’s claim is that he holds genuine Tamil separatist views. It is clear from what was said in KK and RS that there are no political parties or organisations operating within Sri Lanka which profess such views. In that sense, there is no one with whom the appellant could have established contact, given the context of his case. It is the case that the appellant does not appear to have any links with other pro-Tamil (but not separatist) organisations in that country, but that does not undermine his evidence.
28. I turn to the activities undertaken by the appellant in the United Kingdom in the context of how this aspect of the evidence informs my assessment of the claimed genuineness of his political beliefs.
29. The first aspect of this is that of timing. The appellant arrived in United Kingdom in January 2008, but did not make an asylum claim until 2013 after an attempt to obtain further leave as a student had failed. This is not a significant factor, but it does form part of a picture of delay by the appellant over the course of time, including his belated approach to the TGTE.
30. The second aspect concerns the extent of the activities. The appellant had claimed to have attended certain events shortly thereafter, the first being a Martyr’s Day celebration in late 2008. As noted by the First-tier Tribunal, there has been a distinct absence of supporting evidence in respect of this claim. The last judge did not specifically find that the appellant had not attended any of the events during the earlier part of his residence in this country, although I note that the previous judge had made such a finding. I am prepared to accept that the appellant has attended some events over the course of the period 2008 to 2021. However, I find that the extent of his activities is, given the timescale involved, relatively limited. Attendance at demonstrations and other commemorative events has been, I find, relatively intermittent (the First-tier Tribunal described this as “a limited number of events over a number of years.”). That being said, the fact that attendance has taken place over the course of a not insignificant period counts in the appellant’s favour in terms of the genuineness issue. The extent of this is in turn tempered by other relevant findings.
31. The third aspect of the evidence relates to the nature of the activities undertaken. Part of the preserved findings from the First-tier Tribunal is that the appellant had engaged in “low level activism” and that he had never played an organisational or other similar role at protests and/or events. Whilst such involvement is not a prerequisite for a finding that an individual’s beliefs are genuinely held, it might constitute an indicative consideration. It is absent in this case.
32. The fourth aspect of the evidence relates to the TGTE. It has been accepted that the appellant obtained a membership card from that organisation in 2020. The failure to approach the organisation sooner was a matter held against him by the First-tier Tribunal. Similarly, I regarded it as an adverse consideration: the TGTE is a well-known representative organisation which seeks to give a voice to the call for Tamil Eelam and, as the last judge found, there was no credible explanation as to why the appellant had not sought to engage with it earlier than 2020. The obtaining of the membership card counts for very little, given what is said in KK and RS. As to the supporting evidence from the TGTE, the last judge found that the appellant had not been involved to the extent claimed in the organisation’s letter. That is a preserved finding.
33. Overall, the sur place activities do not represent a supportive evidential platform in my assessment of the genuineness of the appellant’s beliefs. Indeed, whilst not all elements of the evidence are adverse to him, as a whole they do undermine the core of his claim of his claim, as it now stands.
34. I take account of the appellant’s ethnicity and his upbringing in Jaffna during the currency of the civil war in Sri Lanka. It is undoubtedly the case that such circumstances are capable of informing an individual’s beliefs as they grow older and enter adulthood. The appellant’s background is, therefore, potentially supportive of his claim to hold a genuine separatist beliefs and to wish to express these (if he were able) if returned to Sri Lanka.
35. Notwithstanding the above, I would not accept the contention (and in fairness Ms Patyna did not put it in such terms) that this background would, in and of itself, mean that the appellant held genuine beliefs. This factor must always be part of a highly fact-sensitive assessment of the evidence as a whole. A sense of injustice experienced during childhood and/or through what has been said by, for example, parents may strongly influence one individual, whereas another grew up in the same region may simply not have developed the same level of, or indeed any, commitment to a particular cause.
36. I accept that he was raised in an area in which the Sri Lankan authorities will have conducted round-ups and arrests of Tamil people. I also accept that the general lived experience is likely to have resulted in a level of resentment and anger on his part. Yet the evidence set out in the first and latest witness statements is to be assessed in the context of the adverse preserved findings relating to the claimed involvement with the LTTE and detention by the authorities (that claimed involvement was said, in part, to have flowed from the experiences of life in Jaffna), together with other aspects of the evidence which I have addressed, above. On the evidence before me as a whole, and in the context of the entirety of my findings of fact, I find that the appellant falls within the second category described in the preceding paragraph.
37. Having assessed the evidence and then weighed up my various findings of fact based thereon, I conclude that the appellant does not hold a genuine belief in, or commitment to, the Tamil separatist cause. His activities in United Kingdom may be described as “opportunistic”, or in some other way. What they did not demonstrate is that he is an individual who would in fact wish to openly express any genuinely held beliefs on return to Sri Lanka.
38. It follows from the above that the appellant cannot get past the first step of the HJ (Iran) analysis and so therefore cannot succeed in his appeal, given its narrow scope.

Anonymity
39. It remains the practice of the Upper Tribunal to make an anonymity direction in cases concerning protection claims. There is no reason why such a direction should not be made in the present case. I maintain the direction made at the error of law stage.

Notice of Decision
40. The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law and that decision has been set aside.
41. I re-make the decision by dismissing the appeal on all grounds.

Signed: H Norton-Taylor Date: 17 May 2022

Upper Tribunal Judge Norton-Taylor

TO THE RESPONDENT
FEE AWARD
No fee is paid or payable and therefore there can be no fee award.

Signed: H Norton-Taylor Date: 17 May 2022

Upper Tribunal Judge Norton-Taylor

ANNEX: THE ERROR OF LAW DECISION

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/10770/2019

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 11 November 2021

…………………………………

Before

UPPER TRIBUNAL JUDGE NORTON-TAYLOR
DEPUTY UPPER TRIBUNAL JUDGE FROOM

Between

S S
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Ms A Patyna, Counsel, instructed by Reeves and Co Solicitors
For the Respondent: Ms S Cunha, Senior Home Office Presenting Officer

DECISION AND REASONS ON ERROR OF LAW

1. The appellant appeals with the permission of the Upper Tribunal against a decision of Judge of the First-tier Tribunal Mace, promulgated on 30 March 2021, dismissing his appeal against a decision of the respondent, made on 23 October 2019, refusing his protection and human rights application.

2. The appellant’s application was based in part on a claim to have been detained and tortured previously in Sri Lanka on account of his perceived association with the LTTE and in part on his post-arrival political activities.

3. After a hearing conducted over a video link, at which she heard oral evidence from the appellant, Judge Mace dismissed the appeal. In relation to the first limb of the case, she noted the findings made previously by Judge of the First-tier Tribunal Devittie, who heard the appeal in 2015 and whose decision was upheld on appeal. The judge had found that the appellant’s account of his experiences in Sri Lanka was not credible and that he would not be at risk on return to Sri Lanka. He noted the appellant had claimed to have taken part in protests in the United Kingdom but he was a “low-level activist” and he would not be regarded as a threat by the Government of Sri Lanka.

4. Judge Mace recognised that these findings were her starting-point but she was not bound by them and she considered the evidence said to warrant a departure from them. Having done so, she concluded that the evidence did not warrant a departure from the earlier findings. In particular, she rejected the claim made by the appellant that his family continued to be harassed by the authorities and that an arrest warrant had been issued for him. Her reasons for this conclusion were that it was “inconsistent” that the authorities would harass the family but that it took the intervention of an attorney to find out the reason. She noted the absence of evidence, such as statements from the appellant’s father or his friend, to confirm the account. She noted background evidence on the prevalence of unreliable court documents and attorney letters. She did not consider the appellant’s post-arrival activities were sufficient to have founded suspicion in him. She distinguished the facts of the case from those in PJ (Sri Lanka) v SSHD [2014] EWCA Civ 1011, noting the attorney’s letter stood in isolation and was not accompanied by any other documentation from the police or courts.

5. Judge Mace also considered the medical report prepared by Dr Balasubramaniam but was unable to give weight to his opinion that the appellant suffered from PTSD as a consequence of ill-treatment he had received in Sri Lanka because this took no account of the adverse findings made by the earlier tribunal. The doctor appeared to have based his opinion on what the appellant had said and little else. He had not addressed how the appellant might have functioned for 14 or 15 years without seeking treatment. The judge rejected the explanation offered by the appellant that he had felt unable to disclose what had happened to him because the medical notes showed he had seen his GP regularly and he had disclosed other embarrassing conditions. She noted the appellant had not followed up on Dr Balasubramaniam’s recommendation that he seek treatment.

6. Finally, the judge considered the appellant's explanation for the lateness of his claim and rejected it. She found the lateness of the claim undermined his credibility.

7. In relation to the evidence of recent sur place activities, Judge Mace did not find the appellant’s account of his activities “plausible”. She did not accept his account of waiting ten years to join the TGTE and found his own description of his activities was not consistent with the letter which the appellant had provided from the TGTE. At paragraph 26, she concluded as follows:

“The appellant may have attended some protests and events in the UK in the past. The limited number of photographs detail the level of his involvement and I have referred to those above. He has very recently obtained a membership card for the LGTE (sic). I do not accept that he is involved to the degree claimed in the letter. His belated membership is without any plausible explanation. I do not find that the appellant has a profile in terms of his activities in the UK that would bring him to the adverse attention of the Sri Lankan authorities.”

8. Ms Patyna, who represented the appellant at the hearing in the First-tier Tribunal, challenged the decision of Judge Mace on three grounds.

9. Firstly, the judge failed to take a holistic approach to the risk factors arising from his sur place activities. She “took no issue” with the appellant’s account of his membership of the TGTE, which is a proscribed organisation in Sri Lanka. She also seemed to accept that the appellant had appeared in media reports of Tamil protests when finding that his profile would not result in adverse interest. The grounds note that the country guidance decision KK and RS (Sur place activities: risk) Sri Lanka CG [2021] UKUT 00130 (IAC) had not been promulgated when Judge Mace made her decision. However, that case described the analysis which the judge ought to have undertaken.

10. Secondly, the judge erred by failing to have regard to background evidence, which had been referred to in Ms Patyna’s skeleton argument, that the passage of time between LTTE activity and adverse interest on the part of the authorities was not a reason to discount it.

11. Thirdly, the judge erred by failing to give weight to the uncontroverted medical evidence.

12. Permission to appeal was refused by the First-tier Tribunal but granted by Upper Tribunal Judge Rimington as follows:

“It is arguable that, bearing in mind the findings, for example of attendance at protests and membership of the TGTE that the First-tier Tribunal decision fails to analyse sufficiently the risk to the appellant on return to Sri Lanka. There is less merit in grounds 2 and 3 but I grant permission nonetheless.”

13. We heard oral submissions from the representatives as to whether the decision of Judge Mace contains material errors of law. However, before we did so, we raised a point which did not appear expressly in the grounds but which in our view was highly relevant to the case. In KK and RS it was explained that,

“It is essential, where appropriate, that a tribunal does not end its considerations with an application of the facts to the country guidance, but proceeds to engage with the principle established by HJ (Iran) [2010] UKSC 31; [2010] 1 AC 596, albeit that such an analysis will involve interaction with that guidance.

When applying the step-by step approach set out in paragraph 82 of HJ (Iran), careful findings of fact must be made on the genuineness of a belief in Tamil separatism; the future conduct of an individual on return in relation to the expression of genuinely held separatist beliefs; the consequences of such expression; and, if the beliefs would be concealed, why this is the case.”

14. We invited the representatives to address us on this point, having first established that neither of them required additional time to prepare their arguments. Both confirmed that they had already considered the point and were content to proceed.

15. We shall consider the three grounds as put forward in the application and then return to the HJ (Iran) point, albeit we recognise the overlap particularly with the first ground. For the avoidance of any possible doubt, we make clear that Judge Mace did not fall into any error by failing to apply the country guidance in KK and RS. The case was promulgated on 27 May 2021, almost two months after Judge Mace promulgated her decision. However, the principles set out in HJ (Iran) were the law at the date of this decision.

16. Ms Patyna elaborated on her first ground and argued the judge had not addressed the significance of the TGTE being a proscribed organisation in Sri Lanka. The existing country guidance of GJ and others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) described as a risk category people who are perceived to have a significant role in relation to post-conflict Tamil separatism within the diaspora. Ms Patyna also referred to the acceptance by Judge Mace that the appellant’s image had appeared in online media and she argued that the judge had failed to ask herself whether the authorities would have been aware of the appellant's presence at demonstrations. She argued that the findings in GJ and others showed that, given the extent of surveillance of such events, it was reasonably likely the authorities would have known of his presence. In effect, the decision lacked reasons to explain the conclusion that the appellant's profile would not place him at risk on return.

17. With regard to the second ground, Ms Patyna argued that the lapse of time relied on by the judge was material to her rejection of the claim that there was an arrest warrant and such an approach was erroneous in the light of the background evidence which had been cited in her skeleton argument.

18. Ms Patyna did not place great emphasis on the third ground but she argued that the judge failed in her duty to consider the report of Dr Balasubramaniam in the round.

19. With regards to the first ground, Ms Cunha simply argued that the judge had correctly regarded the findings of the previous tribunal as her starting-point. She had addressed the later evidence and her conclusions were open to her on the evidence.

20. On the second ground she said that the fact the decision did not contain any reference to the country background evidence relied on did not necessarily show it contained an error of law. The judge had considered the core evidence. The appellant had previously been found to be not credible. The ground was mere disagreement with the decision.

21. In relation to the third ground, Ms Cunha said the fact there was a finding of PTSD did not mean the judge was obliged to accept the doctor’s opinion as to the reasons for it. The doctor had based his opinion on facts which were previously rejected.

22. Having heard argument on the three grounds on which permission was granted, we find that none of them discloses a material error of law. Our reasons are as follows.

23. It is clear from the decision as a whole that Judge Mace took account of all the evidence in the round, she understood it and she made findings based on the evidence. Moreover, those findings were open to her to make on the evidence. She correctly identified and applied the guidance in Devaseelan (Second Appeals - ECHR - Extra-Territorial Effect) Sri Lanka Starred [2002] UKIAT 00702. She was aware of the current country guidance given in GJ and others.

24. When assessing the appellant’s claimed sur place activities, it is important to recognise that Judge Devittie also made an adverse finding that the appellant had, at the very least, exaggerated these. It is clear the appellant ran similar arguments at the earlier appeal and the judge concluded at paragraph 12 that,

“I do not therefore accept that he took part in any of the protests in the UK to which he has referred. In any event, even if he did, I am not satisfied that the Sri Lankan authorities would regard him as a threat to the unitary state, having regard to his relatively low profile as an LTTE sympathiser in the past.”

25. The hearing of the previous appeal was in October 2015. The appellant told Judge Mace that he began attending more protests after viewing footage of Brigadier Priyanka Fernando making throat-slitting gestures towards Tamil protesters outside the Sri Lankan High Commission in London on 4 February 2018. He showed the judge some photographs of himself these protests. There was a video clip showing the appellant and many others shown on IBC Tamil TV and an article in the Urimai e-newspaper showing the appellant protesting outside Westminster Magistrates’ Court in 2019. The judge carefully recorded all the evidence of such events in paragraphs 19 to 22 of her decision. She also considered this area of the evidence in conjunction with the appellant’s membership if the TGTE, which she noted only began in October 2020, a little over three months before the hearing, although the appellant claimed to have been active in their events since 2010.

26. We consider the judge’s findings on this evidence to be sound and sustainable. She noted there were no photographs supporting his claim to have been involved by, for example, ensuring crowd control measures were adhered to or leading slogans. There were no letters from organisations confirming the appellant’s enhanced role. The evidence pointed to “low level activism at a limited number of events over a number of years”.

27. As such, the judge was perfectly entitled to find this did not amount to showing “a significant role in relation to post-conflict Tamil separatism within the diaspora” so as to bring him within GJ and others.

28. We do not agree with Ms Patyna that the judge failed to analyse sufficiently the risks emanating from his activities. She concluded her decision with a reference to the risk categories in GJ and others and it must be considered that she was aware of the passages in that case concerning the fact that the Sri Lankan authorities’ approach is based on sophisticated intelligence, both as to activities within Sri Lanka and in the diaspora. They know that many Sri Lankan Tamils travelled abroad as economic migrants and also that everyone in the Northern Province had some level of involvement with the LTTE during the civil war. In other words, mere presence at a few protests would not necessarily be sufficient to create a real risk on return.

29. As for the appellant’s involvement with the TGTE, the judge noted this was very recent indeed. She was entitled to place significance on the inconsistency between the letter from the TGTE and the appellant's own evidence and to conclude that there had been exaggeration. She was entitled to reject the appellant's claim that he had delayed joining the TGTE for ten years in order to know more about its motives because, to an interested party, the TGTE’s aims would have been well-known.

30. The judge was aware the TGTE was a proscribed organisation because she recorded this at paragraph 24. It was not erroneous for the judge to conclude that bare membership for three months, even combined with the publication of his image, would have created a real risk on return because the appellant's profile was too low.

31. Turning to the challenge to the judge’s treatment of the claim that there was an arrest warrant for the appellant issued in 2018, we again find no error in the approach taken. At paragraphs 28 to 32, Judge Mace gave a series of reasons for rejecting this evidence and the challenge mounted by Ms Patyna only addresses the additional point made in her conclusion at paragraph 48 that it was not credible that the authorities would have maintained any interest in the appellant or would resurrect it “after such a lapse of time”.

32. Ms Patyna highlights the background evidence which was before the judge that the UN Special Rapporteur had reported in 2017 that, in a particular case, it was plausible that the authorities’ interest in the individual would be continuing. However, it is important to note that Judge Mace’s primary finding was that there was no reason to deport from the previous tribunal’s finding that the appellant’s claimed past persecution did not take place. In other words, her comment in paragraph 48 was made in the alternative and, as such, any error would be immaterial unless it were shown that the primary finding was erroneous.

33. Furthermore, we consider that any link between the renewed interest in the appellant and his post-arrival activities was rightly rejected by the judge given the timing. He only became active after seeing footage of Brigadier Fernando in February 2018, whereas he said his family instructed the Sri Lankan attorney in January 2017 after the constant harassment and the arrest of the appellant's brother.

34. We consider Judge Mace gave adequate reasons for rejecting the letter from the attorney. There is no merit in the second ground.

35. We have read the report of Dr Balasubramaniam. Among the documents he said he had read was the decision of Judge Devittie. However, in the section headed 5.1 Diagnosis in the report, he states that the causation of the appellant's PTSD “is the torture he suffered in 2006 and 2007 in Sri Lanka”. He does not consider any alternative causation and he does not show that he recognised that the appellant's claim had been found to be not credible by the previous judge.

36. Under these circumstances, Judge Mace was perfectly entitled to attach little weight to the report for the reasons she gave in paragraphs 33 to 35. She goes on to give additional cogent reasons in the following paragraphs. We consider the judge was justified in finding there was no reason based on this evidence to depart from the previous decision. There is no merit in the third ground either.

37. We now turn to the HJ (Iran) point which we flagged at the hearing. We have set out above the passage from KK and RS which reminded tribunals of the importance of making a forward-looking assessment as well as an assessment of past events.

38. We are just persuaded that the point is within scope of the challenge made to the judge’s assessment of the risk on return as a result of his perceived political opinion. That is because, at paragraph 20 of his addendum witness statement, the appellant stated:

“If I am returned to Sri Lanka, I would not be able to lie about my beliefs about the cause of Tamil Eelam”.

39. Ms Cunha accepted there was an error in the judge’s decision in failing to consider how the appellant would behave on return to Sri Lanka and when questioned in order to obtain a travel document, on arrival or afterwards. The judge found the appellant’s activities were low-level but she did not make an adverse finding that he did not take part in any or that he only took part in bad faith in order to embellish his asylum claim. She made no findings about his actual beliefs or opinions.

40. In KK and RS the applicable principles are set out at paragraphs 537 to 555. For our purposes we note that, in RT (Zimbabwe) and others v SSHD [2012] UKSC 38, Lord Dyson stated as follows:

“26. The HJ (Iran) principle applies to any person who has political beliefs and is obliged to conceal them in order to avoid the persecution that he would suffer if he were to reveal them. Mr Swift accepted that such a person would have a "strong" case for Convention protection, but he stopped short of an unqualified acceptance of the point. In my view, there is no basis for such reticence. The joint judgment of Gummow and Hayne JJ in Appellant S395/2002 contains a passage under the heading "'Discretion' and 'being discreet'" which includes the following at para 80:

"If an applicant holds political or religious beliefs that are not favoured in the country of nationality, the chance of adverse consequences befalling that applicant on return to that country would ordinarily increase if, on return, the applicant were to draw attention to the holding of the relevant belief. But it is no answer to a claim for protection as a refugee to say to an applicant that those adverse consequences could be avoided if the applicant were to hide the fact that he or she holds the beliefs in question. And to say to an applicant that he or she should be 'discreet' about such matters is simply to use gentler terms to convey the same meaning. The question to be considered in assessing whether the applicant's fear of persecution is well founded is what may happen if the applicant returns to the country of nationality; it is not, could the applicant live in that country without attracting adverse consequences."”

41. We find a material error of law in Judge Mace’s decision because she did not address what the appellant believed about Tamil independence or how he would behave if questioned and why. We suspect that, had she had the benefit of reading KK and RS before hearing this appeal, the judge would have done so but the fact is she did not.

42. The decision of Judge Mace to dismiss the appeal on protection grounds is set aside but her findings in relation to the appellant's account are preserved in their entirety because they do not contain any error and they will form the evidential context in which the HJ (Iran) step-by-step assessment will be made.

43. The parties were in agreement that it was not possible for us to proceed immediately to undertake that assessment. The appellant may wish to give oral evidence about his beliefs and intentions and his evidence may well need to be tested in cross-examination before any conclusions can be drawn about it. For that reason we direct that a continuance hearing be held in the Upper Tribunal limited to the single issue we have identified.

NOTICE OF DECISION

The Judge of the First-tier Tribunal made a material error of law and her decision dismissing the appeal is set aside.

The findings of fact made by the First-tier Tribunal are preserved in their entirety.

A continuance hearing will be held in the Upper Tribunal to make findings on the risk to the appellant on return based on HJ (Iran) principles.
Direction Regarding Anonymity
Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date 22 November 2021

Deputy Upper Tribunal Judge Froom