Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-003846

First-tier Tribunal No: PA/00189/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
13th June 2025

Before

UPPER TRIBUNAL JUDGE BRUCE
DEPUTY UPPER TRIBUNAL JUDGE LEWIS

Between

AJ
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms. Johnrose, counsel instructed by Lei Dat Beig solicitors
For the Respondent: Ms. Newton (28th January 2025); Dr. Ibisi (23rd May 2025),
Senior Home Office Presenting Officers

Heard at Manchester Civil Justice Centre on 28 January 2025 and 23 May 2025

Order Regarding Anonymity

Anonymity was ordered on 9th December 2024 by the Upper Tribunal. No application to discharge was made. It remains in force in the terms below.

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity. No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court

DECISION AND REASONS
Background
1. The appellant is an 18-year-old national of Sri Lanka. He entered the UK in November 2019 as an unaccompanied child, then 13 years old. On 7th September 2020, he claimed asylum based on his imputed political opinion.
2. The appellant’s claim was refused by the respondent under cover of letter dated 12th December 2023. The appeal against that decision was dismissed in a decision promulgated on 11th July 2024 by the First-tier Tribunal Judge [the ‘Judge’].
3. The appellant appealed against the judge’s decision. At a hearing before Upper Tribunal Judge Hirst on 9th December 2024, the Judge’s decision was set aside with no findings of fact preserved. It is against that background that this matter came before us to be re-made.
The law
4. There was no material dispute about the law. Asylum law is based upon the 1951 Geneva Convention relating to the status of refugees and the 1967 Protocol. Domestic effect has been given to this by legislation and the Immigration Rules.
5. To succeed in an appeal on asylum grounds, an appellant must show a well-founded fear of persecution for a Convention reason which includes an imputed political opinion. The burden of proof is upon the appellant.
6. The appellant's claim for asylum and protection was made before 28 June 2022, so the provisions of the Nationality & Borders Act 2022 do not apply to this claim.
7. This means that the approach set out by the Court of Appeal in Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449 to the standard of proof in asylum and protection claims applies. Sedley LJ, agreeing with Brooke LJ, referred to proving facts "to a modest standard of likelihood is enough, given the special role and purpose of the Convention".
8. More recently, as was pointed out in MAH (Egypt) v Secretary of State for the Home Department [2023] EWCA Civ 216; [2023] Imm AR 3 ("MAH") a fear of persecution should be well-founded which means "a reasonable degree of likelihood". As Singh LJ noted in paragraph 51 of MAH, strictly speaking it was not accurate to refer to the standard of proof, because the applicant had to prove nothing, and it was more accurate to describe it as an assessment of risk.
9. It is important to take account of events in the context of conditions in the country from which the applicant for asylum or protection comes, the decision maker is not expected to suspend their own judgment.
10. Claims for asylum and humanitarian claims require the most anxious scrutiny.
The Hearings
11. The matter then came before us first on 28th January 2025. The appellant attended the hearing. He was supported by a social worker and an interpreter in the Tamil language. We then heard helpful submissions from each advocate and gave oral directions for the service of addition evidence from the appellant. Further (written) directions were issued to the parties on 28th February 2025. At a resumed hearing on 23rd May 2025 we heard further submissions from the advocates before reserving our decision. We have considered the evidence in this case and refer to aspects of it below in so far as it is necessary for us to reach our determination.
Evidence, findings, reasons
12. The appellant’s case is that in 1984 his father became a member and supporter of the Liberation Tigers of Tamil Eelam [‘LTTE’]. The LTTE support an independent Tamil state in the north of Sri Lanka. The appellant understands his father’s roles to have included being aide to a LTTE Commander, and more recently by supplying food and medicine to LTTE members. In the early summer of 2019 the appellant’s father was taken away by the Sri Lankan army, and has not been seen since.
13. The appellant was 13 years old at the time of the relevant events. He has not undertaken any activities in support of Tamil separatism either in Sri Lanka or the UK.
14. It is submitted that since the LTTE are known to enlist the assistance of children, the appellant’s presence at the scene of his father’s arrest makes him a potential suspect who might also be detained. Fearing for her son’s safety, the appellant’s mother [‘VJ’] entrusted him to the care of another woman with whom he travelled by air, firstly to Malaysia and then on to the United Kingdom where he claimed asylum. He lives with his ‘uncle’ – in fact a distant relative - [‘MS’] in the UK.
15. The appellant submits that the available objective evidence indicates the appellant would be at risk of persecution on return. He relies on the relevant country guidance, and on an article published in The Observer on 26th March 2022 to support the submission that despite a ‘ceasefire’ the risk to members of the LTTE, and those suspected of involvement in the LTTE, remains extant.
16. The issue for us is whether the appellant’s account of the risk he faces on return to Sri Lanka is proven to the lower standard of proof. If it is, the respondent agrees that the appellant could not relocate elsewhere in Sri Lanka or receive protection from the state that he claims to fear.
17. The appellant is a young man. He was younger still at the time of the bombing and his arrival in the UK. We note the professional assessments of the appellant by his educators confirming his limited ability to retain information and reduced comprehension skills. In the refusal letter, the respondent acknowledged the appellant’s age and maturity mean that he is heavily dependent upon his mother as a primary source of information as to key events. We treated the appellant as a vulnerable witness. He did not give evidence before us.
18. Despite acknowledging that the appellant has reduced ability to give a clear and comprehensive recitation of the events that place him at risk, the respondent submits the appellant’s claim to have been present when is father was taken is not reliable because it is “inconsistent” and “vague”. When interviewed on 6th July 2023 by the respondent, the appellant said he ‘could not remember’ (§38) whether he was present when his father was taken.
19. In a subsequent asylum interview on 7th August 2023 the appellant said that he saw the army when his father was taken and that they were wearing green colour clothes. This account was repeated in the appellant’s witness statement dated 5th April 2024, and again in a witness statement dated 29th October 2024 as follows:
‘my mother confirms that I was present during my father’s arrest, and I believe her account of events’.
20. As to apparent vagueness in the appellant’s accounts much of what the appellant now relies upon to him was told to him by his mother [VJ]. We accept Ms Johnrose’s submission that it is entirely credible that VJ would not share with her son more information that strictly necessary for her to do so as a means of protecting him from emotional harm. For instance, we find it to be perfectly credible that he saw the army at the house, but was not permitted to hear the soldier’s exchange with his mother; similarly he may have been aware that his father disappeared from the family home on a particular day, but not whether he was, for instance, formally arrested.
21. We are not therefore satisfied that the appellant’s lack of detailed knowledge necessarily undermines his account. We remind ourselves that the events took place in 2019. The appellant was approximately 12 years old at the time and if true, the events would undoubtedly have been traumatic for him; he may not have even understood what was happening. The appellant’s interviews in 2023 were four years after the event. He appears to have limited cognitive ability. In his second interview (§104) he referenced ‘memory problems’. These were observed by the adult who accompanied him in interview (§107) and have also been observed by his teachers. All we can safely say, on the basis of the appellant’s evidence alone, is that the army came to the family home, his father was taken away, and he believes what he has been told by his mother, that it was because his father had connections to the LTTE.
22. In the absence of more detailed evidence from the appellant, we must look to external sources to supplement our assessment of risk.
23. In this matter, those external sources come in two parts.
24. First, there is the country background material, and extant country guidance. In GJ and others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) the Tribunal found the LTTE to be a “spent force” and noted that the focus of the Sri Lankan government had therefore changed since the civil war ended in May 2009. The subsequent case of KK and RS (Sur place activities: risk) Sri Lanka CG [2021] UKUT 00130 (IAC) found that to remain, in broad terms, the situation. Both decisions did however recognise that the Government of Sri Lanka is an authoritarian regime whose core focus is to prevent any potential resurgence of a separatist movement within Sri Lanka, or a resumption of the civil war. It continues to commit human rights abuses against those under investigation or taken into custody. The import of these decisions is that whilst the war against Tamil separatism is effectively over, discrimination towards the Tamil people is not, and that there may be specific circumstances in which individuals come to the adverse attention of the authorities in a manner that would place them at a real risk of persecution. In this case, the country background evidence reveals a very specific event which could credibly have led the Sri Lankan authorities to the appellant’s father. Media reports confirm that on Easter Sunday in 2019 a church in Kochikade (north of the capital Columbo) was destroyed by an explosive. Over 350 people were killed and injured. The bomb was eventually found to have been detonated by a local Jihadist organisation connected to ISIS. This was not however immediately known to the Sri Lankan government, and given the LTTE’s history of violence, that organisation and its members were originally suspected as responsible. The case put on the appellant’s behalf is that his father’s arrest occurred in the immediate aftermath of the explosion. Having considered the chronology, and the appellant’s straightforward and unvarnished evidence, in the context of this country background material, we find it adds weight to the appellant’s claim.
25. The second item of external evidence in this matter comes from the appellant’s mother. As we have rehearsed above, the appellant was able to give only very limited evidence when he was interviewed in 2023 by a border force officer in relation to his claim. It was no doubt for that reason that this officer attempted to make contact with the appellant’s mother, ringing her via Whatsapp, with the appellant’s consent, from the interview suite. Unfortunately contact could not be established as she did not answer the Whatsapp call. The interview transcript records that those present were not clear whether she had any signal where she was.
26. Subsequent to that interview, the appellant’s representatives were able to make contact with VJ. They produced a nine-paragraph witness statement. The body of the witness statement is typed in English and signed in manuscript. The statement is undated. The statement does not contain a declaration of truth, nor reference to how the witness provided the information. Salient aspects of VJ’s account include
(i) The appellant’s father had been a member of the LTTE since 1984. At one point he had been an area commander for Jaffna, and worked directly for Prabakharan. He was very close to his aunt, LTTE leader Pavithra. His family had close links to other important LTTE personnel. She writes that “my husband was known to many people in our village as being an LTTE member”.
(ii) After the bomb blast the army came to her house and arrested her husband. She says that the appellant was present in the home when this occurred, but not where he was or what he witnessed;
(iii) VJ says that she did not share the details of her husband’s history, or threat to the appellant with the appellant directly because of his age at the time and her desire to protect him;
(iv) After the arrest of her husband the ‘authorities told me they would arrest my son’. Fearing for the appellant’s safety she arranged for him to leave Sri Lanka in the company of another woman;
(v) VJ says she has two other children who remain unknown to the authorities. To protect them, VJ says the children ‘never even go out’;
(vi) As to ongoing intertest in VJ, the appellant or her family, her account is ‘a white van still comes and goes occasionally to my house’.
Whilst not explained explicitly within her statement, we note the evidence that the government of Sri Lanka uses ‘white vans’ as a means of abducting and detaining political opponents: see for instance paragraph 343 GJ and others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC).
27. Given the central importance to this appeal of the contents of the witness statement we directed that the appellant’s representatives provide further evidence as to circumstances in which VJ’s statement was obtained. We received a supplementary bundle of material on 13th February 2025. At the resumed hearing in May, Dr, Ibisi on behalf of the respondent did not object to the contents of the supplementary bundle. It included two statements of truth by the appellant’s solicitor, and a witness statement by his uncle MS, accompanied by his Home Office identity card.
28. We now understand that on 5th April 2024, the appellant’s solicitor attempted to obtain a statement from VJ via the telephone and with the assistance of a ‘remote’ Tamil interpreter. VJ did not answer telephone calls.
29. Unable to make contact via the telephone and following discussion with the appellant, his solicitor drafted a list of questions which were emailed to his uncle MS. That list of questions has been produced before us. We have examined the questions and email, and note that no issue is taken with the veracity of it by the respondent. We have also been provided with the unchallenged witness statement of MS who states that he facilitated sending the questions to VJ through ‘her local internet café’, with the ‘assistance of the internet café worker who could read and write in sufficient English.’
30. Thereafter, the responses from VJ were provided to the appellant’s solicitor, who used that material to draft VJ’s witness statement upon which the appellant relied. To confirm the responses were from her, VJ was then asked to provide identification documents and sign her statement, which she did.
31. In written submissions, the respondent says we ought to give little weight to the evidence of the appellant’s mother, for reasons including the absence of evidence as to who recorded the answers directly from her. Dr Ibisi points out that the evidence was untested, and submits (in terms) that we should guard against the possibility of “creative liberty” given that there is no record of the interaction between the internet café worker and VJ.
32. We begin with the submission that little weight should be attached to this statement because it is untested. We accept that we are, as a matter of law, not able to attach the kind of weight to this statement that we could to one which had stood up under vigorous cross examination. We do however note that there was no way in which VJ could have given live evidence before us. The respondent’s own guidance acknowledges:
‘Individuals in Sri Lanka cannot give evidence by video link in UK civil, commercial or administrative tribunals (either as a witness or when appealing a case).’
33. We have therefore carefully assessed the weight to be attached to VJ’s statement in the absence of any oral evidence from her. We note that she is illiterate, does not have direct access to email herself and does not speak English. Any statement taken from her in writing therefore necessitates the intervention of at least one additional party. That is very often the case in asylum claims. Most witness statements will, for instance, be given with the assistance of an interpreter, and drafted by a legal services professional. There will in these circumstances always be the potential for contamination, or elaboration, of the ‘raw’ evidence, and we have borne that in mind. We are however satisfied that in this case, that possibility can be effectively discounted.
34. We discount immediately the possibility that the appellant’s solicitor inserted any information into the statement without instruction. Dr Ibisi did not advance that case, and given the solicitor’s professional standings she was quite right not to do so. As for MS, we find his statement as to his role in the transmission to be straightforward, credible and wholly consistent with the solicitor’s description of events. It was also unchallenged. We do not consider it likely that the worker in the internet café would have taken ‘creative liberties’ with his customer’s statement. Even if he or she wanted to assist, and was willing to do so in a dishonest way, that individual would not have been aware of what the appellant had said to the UK authorities, or the wider context of the case. Any embroidery by that individual would likely therefore be obvious.
35. Finally, and although this was no part of Dr Ibisi’s case, we have also considered the possibility that VJ herself has fabricated her evidence in order to help her son. Whilst it remains a possibility, we are satisfied, on the lower standard of proof, that the key elements of her statement are true. We so find because they are consistent with what is said by the appellant, with what is believed by MS, and the country background material. There is nothing in the statement which causes us to doubt its honesty. We find it to be cogent, consistent and credible evidence.
36. Having had regard to all of the evidence before us we are satisfied, on the lower standard of proof, that the claim advanced is proven. We accept that the appellant’s father has a longstanding personal and family connection to the LTTE. We find that he was arrested following the bombing in 2019 and that he has not been heard of since. We accept that the army’s continued interest in the family – and in particular the appellant – prompted the appellant’s mother to take the drastic and very difficult decision of sending him abroad for his own safety. We find it to be reasonably likely that if the appellant were returned to Sri Lanka he would be at risk of persecution for reasons of his imputed political opinion.

Notice of Decision
1. We allow the appeal on asylum grounds.

Paul Lewis

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

26th May 2025