Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2024-003151

First-tier Tribunal No: PA/54424/2023 IA/00871/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 20 August 2025

Before

UPPER TRIBUNAL JUDGE O’CALLAGHAN
DEPUTY UPPER TRIBUNAL JUDGE WALSH

Between

KY
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr. A. Otchie, Counsel, instructed by AASK Solicitors
For the Respondent: Mrs. N. Kerr, Senior Home Office Presenting Officer

Heard at Field House on 6 August 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant and his family members are granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant and his family members likely to lead members of the public to identify the appellant without the individual’s express consent. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
Introduction
1. On 11 October 2024 Upper Tribunal Judge O’Callaghan set aside, with preserved findings, a decision of the First-tier Tribunal dated 2 June 2024 dismissing the appellant’s appeal.
2. We now re-make the decision. The resumed hearing had been adjourned on two occasions, 31 January 2025 and 14 April 2025, as Judge O’Callaghan found it necessary to adjourn for further evidence to be filed by the appellant, particularly in relation to the appellant’s brother who had been granted refugee status on the basis of his previous involvement with the Tamil Tigers.
Anonymity Order
3. The appellant has had the benefit of an anonymity order issued by the First-tier Tribunal and maintained by this Tribunal in previous hearings before it. Neither representative requested us to set aside the order.
4. In accordance with Upper Tribunal’s Guidance Note 2022 No 2: Anonymity Orders and Hearings in Private we confirm the continuation of that order as the appellant seeks international protection, asserting that he has a well-founded fear of persecution by the Sri Lankan authorities. Therefore, at this time, the appellant’s right to private life protected by article 8 ECHR outweighs the right enjoyed by members of the public to know his identity as a party to these proceedings as protected by article 10 ECHR.
5. We extend the anonymity order to the identity of the appellant’s family to prevent “jigsaw” identification of the appellant.
Background Facts
6. The appellant is a Sri Lankan national of Tamil ethnicity and is now 30 years old. He arrived in the UK on 20 August 2022 and claimed asylum the same day. The respondent refused his application by a decision dated 7 July 2023.
7. The essence of the appellant’s protection claim is that he has a well-founded fear of persecution on account of his race and political activities in Sri Lanka and the UK and that the risk of persecution/serious harm is heightened as his brother is a former Tamil Tiger.
8. Upper Tribunal Judge O’Callaghan preserved the following findings of the First-tier Tribunal:
• The appellant lived with his family in Sri Lanka until 2009 when the family travelled by boat to India as the war between Sri Lanka and the Tamil Tigers intensified.
• The appellant returned to Sri Lanka in 2020. His return was not due to adverse attention by the Indian authorities as a result of interest in his brother.
• The appellant was not arrested in Sri Lanka in 2020.
• The appellant had been a supporter of the Tamil National Alliance in Sri Lanka.
• In the UK the appellant became involved with the Transnational Government of Tamil Eelam in the UK (TGTE) and has attended events and demonstrations.
• The appellant is affected by poor mental health, having been diagnosed with mixed anxiety and depressive disorder and post-traumatic stress disorder. This will be taken into account as part of the holistic assessment of the appellant’s claim, Mibanga v Sectretary of State of the Home Department [2005] EWCA Civ 367.
9. The appellant claims he was arrested in July 2022 following his participation in protests in Colombo in June and July 2022. He states he was detained upon the authorities becoming aware of his connection to his brother. Whilst in detention, he states he was tortured in the course of which his nose was broken.
10. The appellant claims to have been released on 15 August 2022 upon his uncle paying a bribe to a CID officer. He says his uncle made arrangements for his travel out of the country to the UK via an agent.
11. The appellant states that a warrant was issued for his arrest and that CID officers attended his family home a month after his arrival in the UK. He states that further visits to the family home have taken place.
12. The appellant states that his father was arrested in 2020 due to appellant’s brother having been a Tamil Tiger and remained in custody at the time of the First-tier decision.
Issues for Determination
13. Upper Tribunal Judge O’Callaghan identified the following issues to be determined at the resumed hearing:
• Whether the appellant’s brother was a member of the LTTE
• Whether the appellant was arrested in 2022 and if so the circumstances of his arrest and release
• Whether there is an existing arrest warrant in respect of the appellant
• The nature of the appellant’s sur place activities
• Whether the appellant would be at risk on return
14. There was no appeal against the First-Tier judge’s dismissal of the appellant’s article 8 claim. There was no application to revive that claim.
The Hearing
15. We heard evidence from the appellant and his brother. They both had the assistance of a Tamil interpreter. Prior to the hearing they had the opportunity to establish that they were able to understand one another.
16. We considered with care the documents placed before us including the supplementary evidence and skeleton argument filed by the appellant.
17. Very regrettably, Ms. Kerr did not receive the proper composite bundle until the morning of the hearing. It was explained to us by Mr. Otchie that the bundle had been sent to the wrong email address, namely the email address for the West London Presenting Officer’s Unit. This was a concerning error particularly in the context of the history of the solicitor’s dealing with the case. We gave Ms. Kerr time to consider the new bundle and skeleton argument. We were very grateful to Ms. Kerr for confirming that she was able to proceed to deal with the case on the day.
18. In conducting the hearing, we took account of Joint Presidential Guidance Note No. 2 of 2010: Child, vulnerable adult and sensitive appellant guidance in light of the psychiatric assessment of the appellant by Dr. Galappathie. We accept that the appellant is a vulnerable witness and adopt the adjustments recommended by Dr. Galappathie in his report, namely:
• there were no other parties present in the court room apart from those relating to the hearing
• the appellant was reassured that after his brother had given his evidence he would be able to be in court with the appellant to support him
• the panel intervened as necessary to break questions down or rephrase questions to ensure the appellant was able to understand and respond to the question being put
• the appellant was given adequate time to answer each question
• the appellant was advised that we were minded to have a break after 30 minutes and that he could requests breaks at any time
19. In examination-in-chief the appellant adopted his witness statements. He stated that he cannot return to Sri Lanka because his life would be in danger.
20. In cross-examination, Ms. Kerr asked the appellant whether it was correct that he left Sri Lanka because he had been arrested, detained and escaped from custody. The appellant agreed that was correct. He was asked about the arrest warrant issued in respect of him in 2022. The appellant stated that the arrest warrant was in relation to him having taken part in demonstrations in Sri Lanka. He stated that he became aware of the warrant from his mother after he had fled the country. He said she told him that CID had come to the family home with a warrant. Ms. Kerr challenged the appellant as to the absence of evidence of the warrant. The appellant stated that the CID did not give his mother the warrant because it is not their practice to do so. In answer to a question from Ms. Kerr about steps his mother had taken to challenge the warrant, the appellant said that his mother did not instruct lawyers on his behalf to deal with the warrant as he had already left the country. The appellant said that CID had gone to his mother’s address again three or four months ago to investigate his whereabouts. His mother told them he had gone abroad.
21. The appellant was asked by Ms. Kerr about the demonstrations he attended in the UK and took the appellant through the photographs and screenshots contained within the bundle which show the appellant at various demonstrations holding pro-Tamil separatist/anti-Sri Lankan banners. It was not put or suggested to the appellant that the person circled in each the photographs was anyone other than the appellant. Ms. Kerr took the appellant to the article from the Eelandaadu Newspaper [CB 191]. The appellant confirmed that Eelandaadu is a newspaper in Sri Lanka with nationwide distribution and it was after the publication of that article in September 2024 that the authorities attended the family home enquiring about his whereabouts. Ms. Kerr challenged the credibility of this part of the appellant’s account on the basis it would not make sense for the authorities to attend the family home enquiring where the appellant was in response to seeing a photograph of him protesting in London.
22. The appellant’s brother adopted his statement. Ms. Kerr confirmed that the Home Office accept that the witness was in fact the appellant’s brother and had been granted asylum in 2012 on the basis that he feared persecution from the Sri Lankan authorities due to his having been in the Tamil Tigers. In answer to Ms. Kerr he stated that he had not previously given evidence to support the appellant as he lives far away and had a young family. He stated it is still not safe for him to return to Sri Lanka but said he is not politically engaged as he is focusing on his family.
23. In submissions Ms. Kerr relied on the parts of the refusal letter remaining following preserved findings of fact from the First-Tier. On behalf of the respondent Ms. Kerr did not accept that there is an existing arrest warrant for the appellant. Ms. Kerr did accept that the appellant had participated in protest activities in the UK as a genuine supporter of Tamil separatism. Ms. Kerr submitted it was not credible that the authorities attended the family home after seeing the article with the photo of the appellant at a demonstration in London to ask where the appellant was as it would have known where he was. It was not accepted by the respondent therefore that the appellant was on a “watch list”. For those reasons the appellant did not meet the criteria in KK and RS (Sur place activities: risk) Sri Lanka CG [2021] UKUT 00130 (IAC).
24. On behalf of the appellant, Mr. Otchie submitted that the appellant was a credible witness having given his evidence without exaggeration and asked us to take account of his vulnerabilities. He submitted that the evidence from the MP S. Vino Noharathalingam and from the appellant’s mother is consistent with appellant’s account of the reasons for his flight to the UK. Mr. Otchie submitted that the appellant’s brother was also a credible witness who had been given good reasons for not initially providing evidence for the appellant and being candid about his current lack of political activism. In sum, Mr. Otchie averred that the evidence supports the appellant’s account of his arrest and detention in 2022 which his consistent with a diagnosis of post-traumatic stress disorder. He submitted that the appellant does fall within the criteria in KK and therefore would be at risk of persecution/serious harm if returned to Sri Lanka.
Findings
The appellant’s brother’s involvement with the LTTE
25. The Home Office accepts that the appellant and his brother are siblings and that the brother is a recognised refugee who continues to be at real risk of persecution because of his historical involvement with the LTTE. We note that the credibility of the appellant’s brother was not challenged in any respect. We found the appellant’s brother to be a credible witness and accept his oral and written evidence.
The appellant’s arrest in 2022 and arrest warrant
26. The appellant maintained in his evidence before us that he was arrested following his participation in protests in Colombo in July 2022, that he was detained, tortured and escaped from custody.
27. We note the letter of the Member of Parliament S. Vino Noharathalingam dated 5 December 2022 stating that he knows the appellant; confirming the appellant’s brother’s association with the LTTE and the consequential difficulties for the family; that the appellant had been a member of the Tamil National Alliance since 2020 and that he was arrested in July following his participation in the Kotta Go Home demonstration. He states he came to know that the appellant escaped from custody in August and left Sri Lanka. We take judicial notice of the fact that the MP is a Tamil MP. We have considered his evidence with care. Though he relies, in part, on information provided by the appellant’s mother, we accept that through his Parliamentarian role he will have wider knowledge of local security concerns. In the circumstances, we consider we can attach some weight to the MP’s letter in support of the appellant’s claim to have been arrested in July 2022.
28. In her letter included within the bundle, the appellant’s mother states that she last saw the appellant when he went to participate in demonstrations in Colombo in June or July 2022. She was then made aware that the appellant had been arrested and detained. She learned of the appellant’s escape from CID officers who attended the family home looking for him and warning that they intended to arrest and kill the appellant. This is consistent with the appellant’s evidence as to what he has been told by his mother in respect of the CID coming to look for him to arrest him.
29. We observe that the appellant’s account of being arrested following his attendance at an anti-government demonstration is consistent with objective evidence of continuing arbitrary arrest by the Sri Lankan authorities (see eg USSD report 2023, Human Rights Watch 2024 referring to he UN Human Rights Committee report describing severe restrictions on freedom of expression and the use of counter-terrorism legislation against protesters).
30. On the balance of probabilities, considering the objective evidence and the internal consistency of the appellant’s account, supported by evidence of his mother and the MP, we accept that the appellant was arrested following his participation in demonstrations in July 2022.
31. With respect to the appellant’s evidence that he was detained and tortured upon being connected to his brother, we take into account the unchallenged evidence of the appellant in his asylum screening interview, the appellant’s brother and the appellant’s mother that the appellant’s father was detained for five years (the brother’s evidence being that he was released in January 2025) on account of the appellant’s brothers historic involvement with the LTTE. Given the treatment of the appellant’s father, we find it probable that the appellant’s brother’s previous connection to the LTTE was known to the authorities at the time of the appellant’s arrest and that the appellant would have been detained and tortured upon the authorities making the connection between the appellant and his brother.
32. We agree with Mr. Otchie that the absence of any attempt by the appellant to exaggerate or embellish his account (the only physical injury he claims to have sustained is a broken nose) strengthens the credibility of his evidence. We note the psychiatric assessment of the appellant by Dr. Galappathie and the diagnosis of PTSD which is consistent with the appellant’s account of his treatment by Sri Lankan authorities.
33. In his witness statement the appellant stated that his release was secured by his uncle paying a bribe to a high-level CID officer. We note that similarly, in his asylum screening interview, the appellant had stated he was released via bribe and later said he escaped. When asked about the apparent inconsistency, the appellant explained that “officially the Sri Lankan authorities will know that I escaped but only the CID officer knows that we paid a bribe”. This is consistent with the accepted evidence in GJ and others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) [146], that is, where a bribe was paid to affect release it would be recorded as an escape to protect the person accepting the bribe.
34. With respect to the absence of physical evidence of an arrest warrant, we observe that the appellant’s explanation has been consistent since his SEF interview, namely that CID do not hand over warrants. Judge O’Callaghan concluded at [29] of his decision that given the high level of risk to any family member who tried to obtain a copy it was not reasonable for the appellant to be expected to produce the warrant TK (Burundi) v Secretary of State for the Home Department [2009] EWCA Civ 40 at [20] to [21]. The appellant provided what we find to be a reasonable and plausible explanation for his mother not instructing lawyers to seek or challenge the warrant, that is, the appellant had already left the country. There has been no objective evidence to confirm that family members could safely secure a warrant from CID and therefore we remain of the view that the appellant could not have been expected to produce a warrant and the absence thereof does not undermine the credibility of his account.
35. We find the appellant’s account of his release consistent with what is known about the practice of bribery in Sri Lanka and therefore accept that the appellant was released by way of a bribe paid by his uncle and this would have been recorded as an escape.
36. We also find his account of CID advising his mother there was an arrest warrant for him to be internally consistent and plausible, consistent with what his mother says was told to her and not undermined by the absence of physical thereof.
37. It follows that we find to the required standard that there is an outstanding arrest warrant in respect of the appellant.
Nature of the appellant’s sur place activities
38. It was accepted that the appellant is a member of the TGTE, a pro-Tamil separatist diaspora organisation proscribed by the Sri Lankan government. It was further accepted that the appellant has participated in a number of demonstrations and that his participation was genuinely motivated. Photographic evidence of his attendance at demonstrations was provided in the bundle for this hearing about which the appellant was asked in cross-examination by Ms. Kerr.
39. In his supplementary witness statement, the appellant confirmed his continuing activism saying that he held a banner and raised his voice against the Sri Lankan Government outside the Sri Lankan High Commission in London in February 2025. We note that the appellant has not sought to exaggerate or embellish his role within the TGTE. He states in his supplementary statement that he will continue to speak out against the Sri Lankan government as an activist even if he is removed to Sri Lanka.
40. Whilst a total of 10 exhibits were submitted to evidence the appellant’s activities in the UK, it is the exhibit at [CB 191], the news article was published in Eelandaadu Newspaper, that we find to be the most significant. Eelandaadu Newspaper is a newspaper published in Sri Lanka. The appellant is seen holding an anti-(Sri Lankan) government banner. In the appellant’s mother’s statement she says that on 1st September 2024 a news article was published in Eelandaadu Newspaper about the appellant’s participation in a demonstration. After this article appeared, the appellant’s mother states that Sri Lankan CID officers came to the family home asking her about the appellant and threating that he would be killed if he returned to Sri Lanka [CB 72].
41. Ms. Kerr contended in cross-examination that it would be non-sensical for the authorities to attend the home asking where the appellant on the basis of information showing very clearly where he was.
42. We note that the CPIN records at 3.4.8:
“In an April 2022 report by the OHCHR, it was noted: ‘OHCHR received several reports that victim groups continue to face harassment and intimidation from the authorities, including multiple visits from intelligence and police officers inquiring about plans for protests or commemoration or their past links with the Liberation Tigers of Tamil Eelam (LTTE). In addition, rehabilitated LTTE members and their families or anyone considered to have had any link to LTTE during the conflict are targets of constant surveillance. The High Commissioner is concerned about the gender dimension of these policies in a context where many of those advocating for justice are women survivors or family members and face additional vulnerability in their dealings with the security forces and authorities.”
43. We observe that the USSD Human Rights Report 2024 says:
“During the year, civil society reported allegations of monitoring, surveillance, intimidation and harassment of civil society organization, religious organizations, human rights defenders, and families of victims of rights violations. Harassment including repeated visits by the Counterterrorism Investigation Division, CID and other state security services… “
44. In light of the objective evidence and the focus of the GoSL as recognised in GJ and KK on preventing a resurgence of the Tamil separatist movement, we consider it entirely consistent with the evidence for the purpose of the CID visit to have been intimidation and harassment rather than to make genuine enquiries as to the whereabouts of the appellant.
45. Our conclusion is further supported by the unchallenged evidence that the appellant’s father was detained in 2020 and not released until January 2025. In the absence of any inconsistent objective evidence we find that the ongoing detention of the father would have increased the motivation of the CID authorities to harass and intimidate the mother.
Risk on Return
46. The starting point for the assessment of any risk to the appellant should he be returned to Sri Lanka must be the Country Guidance authorities GJ and others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) and KK and RS (Sur place activities: risk) Sri Lanka CG [2021] UKUT 00130 (IAC) which confirmed that GJ still broadly reflects the situation of returnees to Sri Lanka supplementing that guidance with particular reference to sur place activities.
47. Applying the facts we have found to the criteria established in GJ and KK, for reasons set out below, we are satisfied the appellant falls within the established categories of persons in respect of whom there is a real risk of persecution/serious harm if returned to Sri Lanka. Those reasons are:
a. There is an existing warrant in respect of the appellant and therefore is likely to be on a “stop list,” detained and subject to persecution/serious harm is an existing warrant [GJ Headnotes 4,6,7].
b. Even if not on a “stop list” we find that the appellant is likely to be on a “watch list” and deemed to be of sufficient adverse interest to warrant detention on return to his home area or other resettlement location [GJ Headnote 7(a), 9; KK Headnotes 19 and 20 ]. We come to this conclusion as we find the appellant meets the criteria in KK [Headnote 21] for being deemed to have a “significant role” in Tamil separatism for the following reasons:
i. The appellant is a member of the TGTE, a proscribed organisation, viewed with hostility by the GoSL and significant in terms of the adverse interest the authorities are reasonably likely to attribute to the appellant [KK Headnote 5, 20 (i)].
ii. The appellant has attended a number of pro-separatist/anti-government demonstrations in the UK at which he is seen to be at the front holding pro-Tamil separatist and/or anti-government banners. His photograph attending such a demonstration in London has appeared in a national newspaper in Sri Lanka as discussed above [KK Headnote 21 (ii)].
iii. Among the events attended by the appellant include the commemorative events Black July protest and the Mulliraikai Day protest [KK Headnote 10 (v)].
iv. In Sri Lanka the appellant was a member of the Tamil National Alliance, and as above was arrested and detained following a protest against the president [KK Headnote 21 (v)].
v. The appellant’s brother is an ex-Tiger who escaped from a CID camp [KK Headnote 21 (vi)].
vi. The appellant’s father was detained for five years as consequence of the brother’s role in the LTTE [KK Headnote 21 (vi)].
48. Further or in any event, we take note of the fact that the above matters relevant to the “watch list” are also matters on which it is reasonably likely the GoSL would have obtained information if the appellant applied for a temporary travel document (TTD) which he would have to do to return to Sri Lanka as he surrendered his passport to the agent [KK Headnotes 8, 10].
49. For the above reasons we find there is a real risk that the appellant will be persecuted/suffer serious harm by the Sri Lanka authorities if he is returned to Sri Lanka.
50. We therefore allow the appellant’s appeal.
Notice of Decision
51. The decision of the First-tier Tribunal dated 2 June 2024 was set aside with preserved findings.
52. The appeal is remade and is allowed on asylum grounds and Article 3 ECHR grounds.
53. An anonymity order is confirmed.

M Walsh

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

12 August 2025