Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2023-005624

First-tier Tribunal No: PA/51812/2021

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 10th of June 2025

Before

UPPER TRIBUNAL JUDGE KEBEDE

Between

MS
(Anonymity Order made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M Moriarty, instructed by Birnberg Peirce Solicitors
For the Respondent: Ms A Nolan, Senior Home Office Presenting Officer

Heard at Field House on 30 May 2025

DECISION AND REASONS
1. This is the re-making of the decision in the appellant’s appeal, following the setting aside, in two decisions promulgated on 9 January 2025 and 9 April 2025, of the First-tier Tribunal’s decision which allowed the appeal on protection and Article 8 human rights grounds.
2. The appellant is a national of Sri Lanka of Tamil ethnicity born on 2 November 1988. She entered the UK by plane on 17 August 2018 together with her son K (born in 2008), having left Sri Lanka illegally on 1 August 2018 and travelled by boat to India and from there to an unknown country. She claimed asylum on arrival at the airport on 17 August 2018 and attended a screening interview that day. She was interviewed in full about her claim on 28 January 2021. The appellant’s husband was in the UK without settled status and was an asylum seeker. A daughter was born in 2019. The appellant and her husband have since separated.
3. The appellant claimed to be at risk on return to Sri Lanka from the Sri Lankan authorities. She claimed that her husband was forced to join the LTTE in 2007 and that he worked as a driver for the supply division. He managed to escape the LTTE in early 2009 and joined her but they all surrendered to the army in April 2009 and were taken to an IDP camp. They returned to their home in 2010 but in February 2013 her husband was taken away and tortured by the Criminal Investigation Department (CID). He was released after about a week and went into hiding and then left the country in August 2013. He claimed asylum in the UK. The appellant claimed that the authorities came looking for her husband once or twice a week between July 2013 and July 2018 and that in July 2018 she was arrested because she kept saying that she did not have any information about him. She claimed that she was imprisoned and tortured for four days and was released after paying a bribe and signing a document confirming that her husband had buried weapons. She left Sri Lanka a day after being released with her son when her uncle made arrangements for her departure. She feared being killed or tortured by the CID as they were looking for her husband.
4. The appellant’s claim was refused by the respondent on 19 March 2021. The respondent accepted that the appellant was of Tamil ethnicity and that she supported the LTTE but did not accept her account of problems with the Sri Lankan authorities due to her husband. The respondent considered that the account of the authorities continuing to look for her husband five years after he left the country was inconsistent with the country guidance in GJ (post-civil war: returnees) Sri Lanka CG [2013] UKUT 319, and it was therefore not accepted that she was detained by the Sri Lankan authorities. The respondent considered the appellant’s claim to have attended demonstrations in the UK. It was noted that she had not claimed to have had a significant role in relation to post-conflict Tamil separatism. The respondent considered that the activity she had described related to her husband and did not place either of them in a significant role. The respondent concluded that the appellant would not be included on any “stop” list in Sri Lanka and, given that her only involvement was attending peaceful demonstrations, considered it unlikely that she would appear on a “watch” list, but that even if she was, it would be clear after monitoring that she was not working to destabilise the unitary Sri Lankan state and therefore was not reasonably likely to be detained by the security forces. The respondent concluded that the appellant would not be at any risk on return to Sri Lanka and that her removal would not breach her human rights.
Appeal in the First-tier Tribunal
5. The appellant’s appeal against the respondent’s decision was heard in the First-tier Tribunal on 1 February 2023. For her appeal the appellant relied upon a bundle of documents which included an appeal statement from herself, a psychiatric report from a Dr Dhumad, a GP prescription, a letter and identification card from the Transnational Government of Tamil Eelam (TGTE), photographs of her attending rallies and demonstrations in the UK and internet articles which included photographs of herself.
6. The appellant’s evidence in her statement was that her younger brother and sister lived in the UK and that she lived with her parents and her sister. Her father had fled Sri Lanka in 2001. The appellant described being arrested and tortured in July 2018 and being unofficially released when her uncle paid a bribe. She stated that she fled the country in August 2018 with her son, leaving behind her mother and sister who were then sponsored by her father to come to the UK in 2019 after CID officers came to their house and told her mother that she (the appellant) had to surrender to them. The appellant said that she managed to locate her husband and he came to live with them, and she found out how mentally ill he was. After three or four months he left them and she did not know where he had gone. He called her two weeks later and refused to return but he continued to call every now and then. Her daughter was born in November 2019. The appellant stated that she had attended annual events organised by the TGTE and the Tamil Coordinating Committee (TCC). She also attended protests outside the Sri Lankan High Commission in London and TGTE organised rallies. In June 2019 her maternal uncle contacted her family and told them that the army had been visiting their home looking for them all. She continued to attend protests and rallies, and was told by her uncle in Sri Lanka that CID officers had been visiting their home and had shown him pictures of her attending rallies in the UK. In September 2021 her uncle called her mother and told her that he had been arrested and questioned about the whole family but then released the same day and was put on monthly reporting conditions. The appellant gave details of all the rallies and protests she had attended and confirmed her support for the TGTE. She responded to the respondent’s reasons for refusing her claim.
7. The appellant’s appeal was allowed in a decision promulgated on 3 February 2023. The judge noted that it was accepted that the appellant was a supporter of the LTTE. On the basis of a medical report from Dr Dhumad which was before the Tribunal, the judge considered the appellant to be a vulnerable witness and accepted that she had some mental health difficulties but otherwise considered that the report was not sufficient to support her claim to have been arrested, detained and tortured. The judge did not accept that the appellant’s husband was an LTTE member, that he had information and weapons and was arrested and detained, and did not accept that he had mental health issues as claimed by the appellant. The judge did not accept the appellant’s claim about her uncle having been harassed and did not accept that he was of adverse interest to the Sri Lankan authorities. With regard to the appellant’s sur place activities, the judge accepted that she was a supporter of the TGTE whose role involved attending demonstrations and holding placards and that there was likely to be information about her activities which may come to light at an interview at the SL High Commission when seeking a travel document(TTD), resulting in her being questioned on return. She found, however, that the appellant would not be on any Stop or Watch list because her activities were low level as a supporter and considered there to be no reliable evidence to show that she had any significant role in Tamil Separatism. Nevertheless, pursuant to HJ (Iran) v Secretary of State for the Home Department) [2010] UKSC 31, the judge considered that the appellant would have to conceal her beliefs as an LTTE supporter and could not be expected to lie, such that she faced a real risk of ill treatment in detention. The judge also found that the appellant would face very significant obstacles on return given that she would return as a sole female household member whose close family were living in the UK and that she had some level of mental ill health, and that on return there would be an inability to give voice to her political views.
8. The SSHD sought permission to appeal the judge’s decision on two grounds: firstly, that the Tribunal had made a material misdirection when applying the factual findings to the assessment of risk outlined in KK and RS (Sur place activities: risk) Sri Lanka CG [2021] UKUT 00130 (IAC); and secondly, that the Tribunal had erred in its decision on Article 8. Permission was granted in the First-tier Tribunal on both grounds.
9. The matter then came before the Upper Tribunal on 23 September 2024 to determine whether the First-tier Tribunal Judge had erred in law. In a decision promulgated on 9 January 2025, the Upper Tribunal found as follows:
“11. We start our analysis with the guidance given in KK and RS. Starting from the premise that the Sri Lankan government will know much about an appellant’s activities in the United Kingdom, the Upper Tribunal stated in the headnote (12) that a judge should set out clearly what activities are likely to be known to the Sri Lankan authorities.
12. In this case, the judge found [23] that the respondent is not a reliable witness as to the account of her arrest and torture in Sri Lanka and [24] that she had embellished her account of what had happened to her there. She did accept that she is a supporter of the LTTE and had been involved in sur place activities in the United Kingdom [25] although not as an organiser or in fundraising.
13. The judge then went on to state:
26. I follow the guidance in KK & RS as set out in the ASA from paragraph 21. I accept that there will be a higher interest in sur place activities on behalf of a proscribed organisation such as the TGTE. I accept that there is likely to be information about the appellant’s extensive activities, her attendance at demonstrations, displaying banners and attendance at commemorative events. Such information may come to light at an interview at the SL High Commission when seeking a travel document (TTD). This will result in the appellant being questioned on return. The appellant will not be on any Stop or Watch list because her activities are low level as a supporter and there is no reliable evidence to show that she has any significant role in Tamil Separatism. [our emphasis] I have found no familial connection with the LTTE, no relevant history in SL, no detention or ill treatment. In considering HJ (Iran) given that it has been accepted that the appellant is an LTTE supporter, I accept that the appellant would conceal her beliefs as an LTTE supporter and cannot be expected to lie. Her activities albeit low level are with the TGTE and as found in GJ questions are likely to be focused on diaspora organisations known or perceived to expose a separatist agenda (ASA parag 26). For that reason I allow the appeal on asylum grounds as the appellant faces a real risk of ill treatment in detention.
27. In the alternative I find that she would face very significant obstacles on return given that she would return as a sole female household member whose close family are living in the UK and she has some level of mental ill health, on return there would be her inability to give voice to her political views. She would be able to access medical treatment including medication for depression/ sleep difficulties. I also take into account that the appellant has two young children, one of whom has lived only in the UK since her birth in 2019. I have no independent evidence about the children nor any from other family members. On the limited evidence before me I find that their best interests lie in their remaining with the appellant. In turn I would allow the appeal on human rights grounds under Article 8 outside the rules in light of the fact that the appellant would face unjustifiably harsh consequences.
14. It flows from this that the judge concluded that the respondent would be questioned at the Sri Lankan High Commission prior to a travel document being issued; that her activities would have become known; that she would be questioned on return; and, that she is at risk of being detained, and thus at risk of ill-treatment. It is implicit in the findings that the respondent is at risk due to what she would reveal when questioned.
15. The judge did not follow the guidance set out in KK & RS in that she did not make express findings as to what would be known to the Sri Lankan authorities (see headnote at (12)), nor has she considered what would be on the general database (see headnote at (13)) from which the Stop and Watch lists are derived. At (15) the Upper Tribunal concluded that additional questioning over and above identity is likely only to occur is someone is on such a list.
16. The Upper Tribunal further stated at (17) to (20):
(17) Returnees who have no entry on the general database, or whose entry is not such as to have placed them on either the stop list or the watch list, will in general be able to pass through the airport unhindered and return to the home area without being subject to any further action by the authorities (subject to an application of the HJ (Iran) principle).
(18) Only those against whom there is an extant arrest warrant and/or a court order will appear on the stop list. Returnees falling within this category will be detained at the airport.
(19) Returnees who appear on the watch list will fall into one of two sub-categories: (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.
(20) In respect of those falling within sub-category (i), the question of whether an individual has, or is perceived to have, undertaken a “significant role” in Tamil separatism remains the appropriate touchstone. In making this evaluative judgment, GoSL will seek to identify those whom it perceives as constituting a threat to the integrity of the Sri Lankan state by reason of their committed activism in furtherance of the establishment of Tamil Eelam.
17. Here, the judge clearly concluded that the respondent would not be on a Stop list or a Watch list, and thus, on the basis of the risk factors set out in KK & RS, would not in general be at risk of being stopped at the airport or later being monitored. Yet it is implicit in her findings that the respondent would be stopped at the airport and questioned, presumably on matters which would give rise to her being seen as a separatist and thus would risk ill-treatment.
18. The findings, such as they are, are contradictory; the judge found that the respondent would not be in a Stop or Watch List yet would be detained on account of her activities. This is not adequately reasoned in the light of the extant Country Guidance.
19. When considering the risk on return in detail at [500] ff in KK & RS, the Upper Tribunal held at [507]:
507. It is uncontroversial that those being returned on a TTD will be questioned on arrival at BIA. We find that that is the case. In respect of those who do not appear on either the stop list or the watch list, the respondent submits that any questioning on return will be limited to establishing identity and whether there are in fact any outstanding arrest warrants or criminal proceedings. We agree. [Our emphasis] Additional questioning at the airport over and above the confirmation of identity is only reasonably likely to occur where the individual is already on either the stop list or the watch list. This is because all relevant information on sur place activities and matters arising within Sri Lanka itself (for example, legal proceedings, past detentions, or other issues passed on by the authorities in the home area) will have already been entered onto the general electronic database and will have been assessed by relevant agencies in order to determine whether the individual should be placed on either of the lists. If they are on neither, it follows that they are not of sufficient interest to warrant further questioning about any possible diaspora activities.
20. In addition, another alternative would be that the respondent would fall into the category in HJ (Iran) such that she is only not expressing her pro-independence views such as support for the LTTE out of a fear of the consequences. The difficulty with the submission that the appeal could have been allowed on that basis is that there is simply no evidence that the judge properly considered that route. Accordingly, for these reasons, we are not satisfied that there is adequate reasoning on the facts of this case given the limited facts of that case to justify the finding of risk and accordingly we set the decision aside to be remade.
22. In remaking the decision it will be necessary to consider again whether the respondent’s activities, in particular her sur place activities, are such that, she would be in a stop or watch list.”
10. The matter was listed for a resumed hearing and came before myself on 31 March 2025. At that hearing, the appellant’s representative raised the point that the Upper Tribunal, in the decision of 9 January 2025, had not gone on to consider the second ground of appeal which challenged the judge’s findings on Article 8 and had not made clear which, if any, of the findings of the First-tier Tribunal had been preserved. It was argued that it could not simply be assumed that that part of the First-tier Tribunal Judge’s decision had been set aside as part of the overall decision, since it was not the case that the First-tier Tribunal Judge had allowed the Article 8 claim solely as a consequence of the protection claim having been allowed. Both parties agreed, therefore, that the matter had not been determined and that the appropriate way to address this was for me to consider that ground and make a decision, followed by directions as to the onward disposal of the case. The hearing therefore proceeded as a second part to the hearing before the Upper Tribunal on 23 September 2024 and to the decision of 9 January 2025.
11. In a decision of 9 April 2025 I decided as follows:
“7. I am in agreement with the SSHD that the judge’s decision on Article 8 is not a sustainable one. The judge’s findings are brief, no doubt because she had already allowed the appeal on protection grounds. Her Article 8 decision could perhaps have withstood the overall challenge if her decision on the protection grounds had been upheld, but as a freestanding decision there is simply insufficient to justify the conclusions reached. As Mr Tufan submitted, there was no proper analysis of the guidance in PP and as to how MS would face very significant obstacles to integration as the single head of household when there were, by her own evidence, extended family members remaining in Sri Lanka, and where there had been no other consideration of her circumstances in that regard. The judge relied upon MS’s mental health issues but did not provide any further details and did not explain how that would give rise to very significant obstacles, particularly when she also found that MS would be able to access medical treatment in Sri Lanka. The judge commented that she had no independent evidence about the children and she was therefore unable to make any findings in that regard, other than that their best interests were to remain with their mother. Furthermore, as Mr Tufan submitted, the judge did not consider any of the guiding principles in the caselaw relating to the ‘very significant obstacles’ test. In the circumstances the findings made by the judge at [27] were simply not sufficient to justify a conclusion that there would be very significant obstacles to MS’s integration in Sri Lanka. Neither can it be said that there were sufficient reasons given, nor findings made, to justify a conclusion that MS’s removal would lead to unjustifiably harsh consequences and be disproportionate, on a consideration of Article 8 outside the immigration rules. I therefore find that the judge made material errors of law in her decision on Article 8 and that her decision has to be set aside in that respect.
Preserved Findings and Disposal
8. As to the question of findings which have been preserved, I do not agree with Mr Nathan that the Upper Tribunal intended, in the decision of 9 January 2025, when setting aside the First-tier Tribunal’s decision, to overturn all of the findings made in the First-tier Tribunal. I accept, as I mentioned myself at the hearing, that the wording ‘in particular’ in [22] suggests that the reconsideration was not solely based upon MS’s sur place activities. However, it was clearly based upon the activities which the judge accepted, namely MS’s support for the LTTE, as stated at [20] and the first four lines of [25]. As for the matters which the judge did not accept, which are set out in her findings at [21] to [24] and the latter part of [25], her findings in that regard were never challenged by MS by way of a rule 24 response or in the arguments made before the Upper Tribunal on 23 September 2024. There is no reason for those findings of fact to be overturned. It is clearly stated in the SSHD’s grounds at paragraph 1(a) that the SSHD’s challenge to the judge’s decision was to her application of her findings of fact to the assessment of risk outlined in KK and RS (Sur place activities, risk) Sri Lanka (CG) [2021] UKUT 130. That was the challenge addressed in Ms Benfield’s skeleton argument. Accordingly the only challenge was to the judge’s decision on the issue of risk of return, in light of the risk factors set out in the country guidance.
9. The decision is therefore to be re-made on the issue of risk on return to Sri Lanka for MS, applying the factual findings made by the First-tier Tribunal which are preserved. Those findings are to be found at [20] to [25] of the judge’s decision.
10. Given the brevity of the findings made at [27] and the observations I have made above, the appellant’s Article 8 grounds of claim will be considered afresh, with no findings preserved.
11. In light of the limited extent of the re-making of the decision in the appellant’s appeal, and having regard to section 12(2)(b) of the Tribunals, Courts and Enforcement Act 2007 and the current Practice Statements of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal, at paragraph 7, as well as the guidance in AEB v Secretary of State for the Home Department [2022] EWCA Civ 1512, this matter will be retained in the Upper Tribunal.
12. The case will therefore be listed for a resumed hearing in the Upper Tribunal for the decision to be re-made, on a date to be notified to the parties. The re-making will be on the question of risk to the appellant on return to Sri Lanka, on the basis of the findings of fact made by the First-tier Tribunal, and Article 8.”
12. The matter then came before myself again on 30 May 2025, to re-make the decision in the appeal.
Hearing for the Re-making of the Decision
13. For the resumed hearing, the appellant produced an appeal bundle which included an additional witness statement, an addendum psychiatric report from Dr Dhumad, a statement from her sister, an affidavit from her uncle, her TGTE and MSDTE membership cards and letters from the TGTE and the MSDTE (Movement for Self-Determination of Tamil Eelam), as well as photographs of her attending rallies and demonstrations in the UK and internet articles including her photographs. That bundle was supplemented at the hearing before me by a further skeleton argument and additional statements from the appellant and her son.
14. In her first additional statement, the appellant referred to the severe deterioration in her mental health due to continued threats and fear of persecution and to her continued involvement in Tamil diaspora activities in the UK, particularly with the TGTE and the MSDTE, which had brought her into the public eye and led to her being targeted by the Sri Lankan authorities. She stated that her uncle in Sri Lanka had faced ongoing harassment and interrogations by the Sri Lankan security forces and had been repeatedly warned about her activism in the UK and forced to report to the local police station every week She stated that she had been diagnosed with PTSD and major depressive disorder (MDD) and she frequently experienced paranoia, persistent fear and suicidal thoughts. She considered that her name would have been added to a watch list in Sri Lanka.
15. In her second additional witness statement the appellant confirmed that she would want to carry on her activities in support of Tamil Eelam if she returned to Sri Lanka, but that she would be afraid to do so as she feared being arrested, detained and tortured by the Sri Lankan authorities.
16. The appellant did not give oral evidence at the hearing on this occasion. Mr Moriarty relied upon Dr Dhumad’s confirmation in his addendum report that she was not fit to do so. I heard evidence from the appellant’s sister, RP, and from Dr Yogalingam, the Director of the MSDTE and former Deputy Minister of the Prime Minister’s Office for Transnational Government of Tamil Eelam (TGTE).
17. The appellant’s sister, RP, gave her evidence through the interpreter in the Tamil language. I was satisfied that they understood one another. RP confirmed that her statement was true and she adopted it as her oral evidence. When cross-examined by Ms Nolan, RP said that her mother had a brother and sister in Sri Lanka and that her grandmother was living in the family home where they had all lived before coming to the UK. RP said that she did not know if the appellant was in contact with anyone in Sri Lanka, although she confirmed that they lived together. She was not in contact with anyone in Sri Lanka herself. When referred by Ms Nolan to her evidence in her statement about her uncle receiving threats in Sri Lanka, RP said that she was aware of that from her mother but she had no direct knowledge herself. She did not know any details and could not remember all the contents of her statement. RP said that she was aware of her sister’s activities in the UK such as her attendance at National Heroes Day events but she did not know the details of her other activities. When asked if her family in the UK would provide for the appellant if she went back to Sri Lanka, RP said that she was unable to provide any financial support herself but her older brother may possibly be able to. When re-examined, RP said that her mother spoke to her brother in Sri Lanka about once a month. She and her mother were sponsored by her father to come to the UK as he was British.
18. Dr Yogalingam then gave his evidence before me. He confirmed his reliance upon the two letters he had produced for the appeal and confirmed his position as Director of the MSDTE and former Deputy Minister of the TGTE. When cross-examined, Dr Yogalingam said that he moved from the TGTE to the MSDTE in May 2024. He said that the appellant started her involvement with the MSDTE in July 2024 but she was still with the TGTE. She last attended an event two weeks ago outside 10 Downing Street. Dr Yogalingam said that the appellant was reserved and did not come forward easily, but he encouraged her to help with the women’s activities. She had helped him in shouting out slogans and helping the women making sure events did not interfere with the public and martialling and carrying banners. There were usually five to ten people martialling at events. She had done that kind of work about five or six times over a six year period and attended four to five events out of every eight to ten.
19. Both parties then made submissions.
20. Ms Nolan asked me to give no weight to RP’s evidence as she did not appear to have any knowledge of the information in her statement and she gave inconsistent evidence about the family members in Sri Lanka. There was no recent documentary evidence of the appellant’s involvement in sur place activities and that undermined her claim to have an active involvement. At its highest the appellant was someone who a participated in demonstrations but with no specific role which would make her stand out. Ms Nolan relied on the preserved adverse findings made by the First-tier Tribunal. She submitted that the appellant did not fall within the risk categories in KK and RS. There was no reliable evidence that her family had come to the attention of the authorities. The appellant was not of sufficient interest to appear on a stop list or watch list and she was simply a low level supporter. Holding placards was not sufficient to appear on a stop list or watch list. The appellant would therefore be able to pass through the controls at the airport and return to her home without problems. Any questions asked of her would be limited to questions about her identity. The appellant had failed to show that she would be at risk on return to Sri Lanka. As for Article 8, there were very significant obstacles to the appellant integrating in Sri Lanka. She would not be returning as a sole female household member as she had family and a home to return to. She would be able to access medical treatment in Sri Lanka. Her removal to Sri Lanka would be proportionate.
21. Mr Moriarty submitted that it was reasonable to conclude that the appellant’s activities would bring her to the attention of the Sri Lankan authorities. He referred to the pages in the appeal bundle containing photographs of the appellant at demonstrations where she was highly visible and he submitted that the Sri Lankan authorities would be aware of her by the time she was interviewed by the Sri Lankan High Embassy and documented in the UK and then returned to Sri Lanka. The appellant fell within the risk factors in KK and RS. It was reasonably likely that she would be questioned at the airport in Sri Lanka and would appear on their database and would not be allowed through, but even if she was able to pass through the airport she would be viewed with hostility of she engaged in activities. She would not be able to involve herself in activities as it was too dangerous. She was clearly a genuine supporter and, in terms of HJ (Iran), was a refugee. Mr Moriarty submitted further that there would be very significant obstacles to the appellant integrating in Sri Lanka, given her mental state, the fact that she was a LTTE supporter and considering the best interests of her children. The appeal should be allowed.
Analysis
22. It is the case that there have been considerable credibility issues taken against the appellant. Although the First-tier Tribunal acknowledged and adopted the respondent’s acceptance that the appellant was an LTTE supporter, the judge did not accept her account of her husband’s membership of the LTTE and his arrest and detention and neither did she accept that her husband had disappeared and was last seen in November 2022. The judge did not accept that the appellant was arrested, detained and tortured herself and she gave limited weight to Dr Dhumad’s report. The judge did not accept the appellant’s account of other family members being harassed in Sri Lanka and of her uncle being of adverse interest to the authorities and subject to reporting conditions. The judge considered that the appellant had embellished her account of events in Sri Lanka and, whilst she accepted that she was involved in sur place activities in the UK and attended demonstrations and held placards, she did not accept that the appellant had any role in organising activities or in fundraising. All of those findings have been preserved.
23. As for the further evidence at the hearing before me, I do not consider that that materially assists the appellant in relation to her account of her past experiences in Sri Lanka. On the contrary, the unsatisfactory nature of RP’s evidence raised further concerns about the lack of reliability of the overall account of past events and the risks arising out of that. As Mr Moriarty accepted, it was clear from RP’s evidence that she had little knowledge of what was written in her own statement, even though she adopted it as her evidence which was particularly concerning, given the level of detail provided in the statement. I therefore give no weight to RP’s evidence and to the contents of her statement. I did not find her to be a reliable witness. The appellant’s uncle’s affidavit is equally of little or no weight as he was not available to be examined on his evidence, the significance of which was all the more apparent by RP’s performance during cross-examination in relation to her written statement. As for the new medical evidence, I accept that Dr Dhumad’s supplementary report referred to him having sight of the appellant’s medical records from her GP and was accompanied by those records, which therefore went some way to addressing the concerns expressed by the First-tier Tribunal Judge in relation to his previous report. However I do not consider that it went so far as to undermine the conclusion reached by the judge in the last four lines of [22] in relation to his evidence, nor her overall adverse conclusions based upon inconsistencies and omissions in the appellant’s evidence as a whole. There is accordingly nothing in the new evidence which leads to any other conclusions than those reached by the judge at [24] in regard to the appellant’s past experiences in Sri Lanka and the risk on return on the basis of those experiences.
24. Nevertheless I accept, as did the First-tier Tribunal Judge, that the appellant has had continued political involvement in the UK. I do not agree with Ms Nolan that there is an absence of recent evidence of her activities, when there were many photographs of her attending demonstrations and protests over the last few years. Those photographs begin from February 2019 (in the appellant’s bundle before the First-tier Tribunal), which was shortly after the appellant’s arrival in the UK and prior to the refusal of her asylum claim, and continue on an annual basis up until the current year (in the current bundle). There is evidence of some of the photographs and videos, in which the appellant can clearly be seen, appearing on the internet and in Tamil media including TV. In many of the photographs the appellant appears in the forefront, holding posters and banners, and I note several photographs of her participating in a hunger strike campaign where she appears as one of only a few people dressed in white (pages 146 to 150 in the appellant’s most recent bundle). The appellant’s attendance at these demonstrations and protests does not have the appearance of being contrived, but rather reflects activities motivated by genuinely held beliefs.
25. It is a preserved finding of the judge that the appellant is not accepted as having held any role in organising events or in fundraising and that remains the case. However the evidence is that she was more than just a participant in the protests and demonstrations. Mr Yogalingam’s evidence before me was that the appellant would help by shouting out slogans and by helping with martialling and carrying banners back to the office, and that she attended about four to five out of eight to ten events a year. There was no challenge to Mr Yogalingam’s evidence and I found no reason not to take it a reliable account of the appellant’s involvement with both the TGTE and the MSDTE.
26. I therefore turn to the guidance in KK & RS and, in that context, consider the risks to the appellant on return to Sri Lanka arising from her involvement in those activities in the UK. At [26] of her decision, the First-tier Tribunal Judge accepted that there was likely to be information about the appellant’s extensive activities, her attendance at demonstrations, displaying banners and attendance at commemorative events, and that such information may come to light at an interview at the Sri Lankan High Commission when seeking a travel document, resulting in her being questioned on return to Sri Lanka. I would agree with that conclusion which, in any event, has not been challenged. However the judge did not accept that the appellant would be on a stop list or a watch list because of the low level of her activities. It was on the basis that the judge’s findings in that respect were contradictory with her previous findings that her decision was set aside by the Upper Tribunal on 9 January 2025. I therefore re-visit those findings.
27. As already established and accepted, the appellant has been actively involved in activities for the TGTE and the MSDTE in the UK, and publicly so. Some of those activities fall within those listed in [10] of the headnote in KK & RS, particularly at (i) to (v), and I consider it to be reasonably likely that those activities would be known to the Sri Lankan authorities prior to the appellant’s interview at the Sri Lankan High Commission or, if not, would come to light when she was interviewed for the purposes of obtaining a travel document. It is reasonably likely that her name would, therefore, appear on the general electronic database operated by the Sri Lankan authorities, as referred to at [13] of the headnote to KK & RS. According to [15] the appellant will be questioned at the airport on her return to Sri Lanka and the relevant consideration, therefore, is whether she would be allowed to pass through with no further interest or whether she would be questioned further. Although the appellant has not held any prominent role in the TGTE or MSDTE, it seems to me that, to the lower standard of proof, there would be sufficient interest in her arising from her involvement in a proscribed organisation to have led to her being on a watch list and, as such, there may well be some further questioning beyond questions about her identity. In accordance with the guidance in HJ (Iran), the appellant cannot be expected to lie about her activities. Given the level of those activities there is no evidence to suggest that they would lead to the appellant being on a stop list and, as such, I do not accept that she would be at risk of being detained at the airport. She would therefore be able to pass through the airport and return to her home area.
28. However the next consideration is whether the appellant would experience further adverse interest in her home area and thus which sub-category of those on a watch list the appellant falls into, as per [19] of the headnote to KK & RS. On the preserved findings made by the First-tier Tribunal, the appellant has no relevant history in Sri Lanka and no familial connections, although she is accepted to have been a supporter of the LTTE. [21] of KK & RS makes it clear that being considered as having, or perceived to have, undertaken a significant role does not require having held any formal position or high profile in a separatist organisation. The appellant has been a regular attendee at protests and demonstrations against the Sri Lankan government and, as already established, would be associated with the TGTE. It seems to me that that is sufficient to conclude that, to the lower standard of proof, she would fall within sub-category (i) at [19], such that she would be at risk of detention on return to her home area.
29. However if I am wrong about that, given her lack of any significant profile and relatively low level of activity, and in the event that she therefore should be considered as falling within the second sub-category, I still find that the appellant has done enough to demonstrate that she would be at risk. I consider it reasonably likely that she would be monitored by the authorities in her home area. Whilst KK & RS, at [22], found that “the monitoring undertaken by the authorities in respect of returnees in sub-category (ii) in (19), above, will not, in general, amount to persecution or ill-treatment contrary to Article 3 ECHR”, it seems to me that the appellant would nevertheless be at risk in terms of HJ (Iran) given her stated intention to carry on her activities in support of Tamil Eelam in Sri Lanka, but for her fear of being arrested detained and tortured. In light of her continued political involvement in the UK, which I have accepted has been motivated by genuinely held political beliefs, it is entirely plausible that the appellant would wish to continue such activities in support of a Tamil Eelam state in Sri Lanka if she were able to, and that she would risk being arrested, detained and ill-treated if she did so. Her only reason for not undertaking such a public expression of her beliefs would be owing to her fear of arrest and detention. I therefore accept that the appellant would be at risk of persecution if she were to return to Sri Lanka and I allow her appeal on that basis.
30. The appellant has accordingly made out her claim under the Refugee Convention. In the circumstances she is not entitled to humanitarian protection but, for the reasons given in relation to the Refugee Convention, her removal from the UK would amount to a breach of Article 3.
31. Although the First-tier Tribunal Judge’s decision on Article 8 was set aside, that was on the basis that there were insufficient findings to justify allowing the appeal independently of any risk of persecution. On the basis that I have allowed the appeal on protection grounds by reason of the appellant having demonstrated that she would be at risk on return to Sri Lanka, it follows that there would be very significant obstacles to her integration in Sri Lanka for the purposes of Article 8 and that her removal to Sri Lanka would therefore be disproportionate. However, absent such risk, I do not consider that the appellant has shown that her removal would be disproportionate, as she has family members remaining in Sri Lanka to provide her with support and medical treatment available to her if required. The best interests of her children would be to remain with her wherever she was and there is no evidence of sufficient ties to the UK to demonstrate that their removal would be disproportionate. The evidence is that the children have no contact with their father. In the circumstances there is no freestanding basis for allowing the appeal on such grounds but, given the accepted risk to the appellant on return to Sri Lanka, she nevertheless succeeds under Article 8.
DECISION
32. The decision of the First-tier Tribunal having been set aside, the decision is re-made by allowing the appellant’s asylum and human rights appeal.

Signed: S Kebede
Upper Tribunal Judge Kebede

Judge of the Upper Tribunal
Immigration and Asylum Chamber
3 June 2025