Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004911

First-tier Tribunal No: PA/51934/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 17th of June 2025

Before

UPPER TRIBUNAL JUDGE LANDES
DEPUTY UPPER TRIBUNAL JUDGE BARTLETT

Between

C S L A
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Bandegani, Counsel instructed by MTC Solicitors
For the Respondent: Mr Parvar, Senior Home Office Presenting Officer

Heard at Field House on 12 March 2025

Order Regarding Anonymity

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
1. This is the remaking, under section 12 (2) (b) (ii) of the Tribunals, Courts and Enforcement Act 2007 of the decision of the First-Tier Tribunal promulgated on 2 July 2024 insofar as it was set aside by Upper Tribunal Judge Landes by decision and reasons issued on 27 January 2025 (see annex below “the EOL decision”).
2. We continue the anonymity order made in the First-Tier Tribunal. We consider that the public interest in open justice is outweighed by the importance of facilitating the discharge of the obligations of the United Kingdom under the Refugee Convention which includes the importance of respecting the confidentiality of asylum seekers’ applications. We consider this to be particularly important where, as in this case, the appellant is a vulnerable person who is mentally unwell.
Background
3. The appellant (now aged 51) is of Sinhalese ethnicity. He came to the UK on a visit visa on 27 October 2007 and claimed asylum in June 2016. He claimed to have been arrested and tortured as a supporter of the Freedom Party. His asylum claim was refused, although it was accepted that he had low level involvement with the Freedom Party. On appeal, the First-Tier Tribunal dismissed his appeal by decision promulgated on 20 March 2020. The Tribunal concluded that the appellant was not a credible witness, that he had not had any problems with the authorities in Sri Lanka, that he had not been detained and tortured and that he would not be at risk because of his accepted political activity on return to Sri Lanka.
4. The appellant made further submissions on 22 September 2022 which were accepted as a fresh claim but were refused by decision of 14 March 2023 (“RFRL”). The new material related to the appellant’s claimed sur place activity in support of Tamil separatism. In RFRL, the respondent commented in respect of the new material that it appeared to be attendance at only two different demonstrations, that the appellant had not shown that the Sri Lankan authorities had identified him from those photographs, or that he had a significant role. It was said that the appellant had not demonstrated that he had a significant role in Tamil politics in the UK in support of LTTE/TGTE, was a member of LTTE or TGTE or would be perceived by the authorities as such. It was not considered that he would have a political profile such that he would appear on a stop or watch list, and it was considered that he could return to Sri Lanka without experiencing problems. Accordingly, when considering HJ (Iran), it was not considered that the appellant would be at risk from the authorities as he was not involved in politics. It was considered that the appellant had no well-founded fear of persecution.
5. The First-Tier Tribunal decided the appellant’s appeal in a decision promulgated on 2 July 2024 dismissing it on all grounds. The appellant acknowledged before the First-Tier Tribunal that he had no separate Article 8 claim and there was no contention on appeal before the Upper Tribunal as to the First-Tier Tribunal’s dismissal of the appeal on Article 3 (health) grounds although the Tribunal found that as at the date of the psychiatric report, the appellant was a “seriously ill person” and proceeded on the basis that the situation had not changed at the time of the hearing.
6. It was conceded by the respondent that ground 1 disclosed an error of law by the First-Tier Tribunal (see [10 – 11] of the EOL decision) in that whilst the Tribunal had accepted that the appellant would appear on a watch list and be interrogated at the airport, their conclusion that he would not be at risk failed to take account of material matters, specifically the appellants case that he had been active in events organised by TGTE, had attended commemorative events and had held flags and placards supporting Tamil separatism. Ground 2 was not pursued on behalf of the appellant.
7. Upper Tribunal Judge Landes found that the First-Tier Tribunal had also erred in respect of ground 3 when taken with ground 1 so that consideration of the HJ (Iran) principles would be required on remaking (see [13] – [15] EOL decision).
8. A number of the First-Tier Tribunal’s factual findings were preserved (see [16] – [18] EOL decision).
The issues
9. The issues to be decided are set out at [17] of the EOL decision:
(i) Whether the appellant has a well-founded fear of persecution upon return to Sri Lanka because of his sur place activities;
(ii) What specific political activities the appellant would involve himself in on return to Sri Lanka or would wish to involve himself in were it not for fear of persecution and whether if he did carry out such political activity (actual or desired) he would have a well-founded fear of persecution.
10. We raised with the representatives at the end of the hearing that because this is a claim which post-dates the coming into force of the Nationality and Borders Act 2022, when considering whether the appellant had a well-founded fear of persecution, we would apply section 32 of that Act and invited them to make any further submissions they wished.
11. Section 32 (2) (a) provides that we must first determine on the balance of probabilities whether the asylum seeker has a characteristic which could cause them to fear persecution for reasons of (in this case) political opinion, or has such a characteristic attributed to them by an actor of persecution. That is accepted in this case in RFRL.
12. Section 32 (2) (b) provides that we must then determine on the balance of probabilities whether the asylum seeker does in fact fear such persecution as a result of such characteristic.
13. It is only after we have made findings on the appellant’s subjective fear (see JCK (s.32 NABA 2022) Botswana [2024] UKUT 00100) that we can go on to determine under section 32 (4) whether there is a reasonable likelihood that on return the appellant would be persecuted as a result of his political opinion, or perceived political opinion.
The hearing
14. We had a consolidated bundle and a skeleton argument filed on behalf of the appellant which we have taken into account, and we heard evidence from the appellant through an interpreter. After the evidence we heard submissions from both representatives which we summarise below. During the submissions we had part of the transcript replayed so we could be clear on the evidence the appellant gave.
15. Mr Parvar submitted that there was no evidence to confirm that the appellant was linked with TGTE. He referred us to relevant paragraphs of KK and RS (Sur place activities: risk) Sri Lanka CG [2021] UKUT 00130 (IAC) and in particular to the paragraphs which emphasised that although the government viewed the entire overseas Tamil population with a separatist mindset, this did not cloud its ability to differentiate between those who were to a greater or lesser degree politically active in a manner known to be in furtherance of a separatist agenda [355] – [357]. When assessing whether the appellant played a significant role, it should be taken into account that although the preserved findings were that he held sincere political beliefs in opposition to the current government, he saw himself as a human rights campaigner rather than a Tamil separatist. Whilst the appellant had suggested that he was involved in political activity until a month ago one would have expected this to be supported by a witness statement or supporting evidence presented of demonstrations he had attended in 2024 or 2025. It was submitted the appellant did not have a great attendance history at demonstrations bearing in mind he had lived in the UK since 2011, and it was submitted he was lying in evidence when he said he had attended since 2012.
16. We were invited to reject the evidence of recent involvement in political activity and not only was it said that lack of involvement called into question whether the appellant would be perceived by the authorities as having a significant role, it was said also to be relevant for the consideration of HJ (Iran) principles and how the appellant would conduct himself on return. The appellant was someone against whom there were serious adverse credibility findings. There were mostly personal photographs of him attending protests which seemed to have been taken moments apart. There was nothing more than the most trivial activity in the UK and he would not be seen as committed to Tamil separatism or posing a threat to the state. There was no real history with the authorities and no family connection. [487] of country guidance referred to situations where an appellant had only a few attendances at demonstrations but they were capable of attracting greater significance, but the appellant would not fall into that category it was submitted; he had held a flag but it was really a small part of the evidence. The appellant would not be volunteering information to the authorities about the police complaint; it was not suggested it was within the knowledge of the authorities and the appellant showed no interest in the complaint.
17. When considering how the appellant would involve himself further on return Mr Parvar submitted that the appellant had shown no real political interest between 2023 and 2025. The appellant had not explained how he would conduct himself in Sri Lanka, there had just been a blanket refusal that he could not return. He would not wish to conduct himself in such a way that would put him at risk.
18. Mr Bandegani submitted that the appellant was not someone who was passive at demonstrations. He shouted slogans and held a flag bearing the tiger emblem of LTTE. The absence of supporting evidence that the appellant had attended demonstrations was not evidence that he had not attended demonstrations. The appellant was showing solidarity with a proscribed organisation and would be seen as a Sinhalese man who would be perceived to be a supporter of a terrorist organisation. Other factors to be taken into account were the appellant’s previous low level involvement in the freedom party and his police complaint, this all factored into the appellant being a man who was not afraid to express himself and that was what mattered; he was the sort of person who made complaints about ruling power. The appellant would only lie about the police complaint due to fear of torture. He would not protest on return to Sri Lanka because he said if he did that he would be killed. Taking everything together the appellant would be perceived to have a significant role and so the appeal should be allowed on asylum grounds following country guidance. In any event the appellant should be entitled to protection on HJ (Iran) principles because at least part of the reason for his not continuing in Sri Lanka the activities he continued in the UK would be that he would be persecuted. The appellant would be perceived as having separatist beliefs.

Findings and reasons
The appellant’s subjective fear
19. The appellant presented to us as someone who was vulnerable. He had the appearance of being tense and anxious, avoiding eye contact, and he was distressed by questioning, repeating that he could not go back to Sri Lanka. As set out above, the judge of the First-Tier Tribunal found him to be a seriously ill person. Dr Galappathie’s report which was before the First-Tier Tribunal took into account the history of mental illness diagnosed by the GP and by a psychiatrists report for the first asylum claim, and concluded that the appellant fulfilled the criteria for a severe depressive episode, severe anxiety and PTSD noting that a fight in the UK had been reported as well as the claimed attack in Sri Lanka. The appellant was taking antidepressants at the time of the assessment. He was described as presenting as depressed, his mood appearing flat with reduced emotional reactivity, and described as sometimes hearing voices in his head which the doctor felt appeared in keeping with underlying psychological distress. The appellant’s predominant thoughts related to his history and to his fear of return to Sri Lanka. He had poor concentration and attention and poor short-term memory. The doctor described him as a highly vulnerable individual and considered that because of his subjective fear of return to Sri Lanka, the appellant’s mental health was likely to deteriorate if he were removed.
20. We appreciate that the appellant has not been found to be credible as to the history he gave of detention by the authorities, but it was accepted he had a low level involvement with the Freedom Party before he came to the UK and putting the preserved findings together the appellant held sincere anti-government beliefs and has attended protests in the UK to show solidarity to those who had suffered. We find from the photographs as we describe below that many of those events were organised by TGTE and there are TGTE slogans and LTTE flags at the protests and the appellant shouted slogans and held placards, also carrying the LTTE flag on one occasion. Paragraph 26 of the appellant’s witness statement explains that at least part of the reason for his fear of return is his attendance at those activities. Given the appellant’s evident fear and that he has been found to have attended protests for a genuine reason, we are satisfied on the balance of probabilities that at least part of his fear of return is his subjective fear that he will be viewed as someone who will be perceived as a threat to the integrity of the Sri Lankan state by reason of perceived separatism. The appellant therefore satisfies the requirements of section 32 (2) (b) of NABA.
Well-founded fear - Reasonable likelihood of persecution?
21. The preserved findings are that in the two years before May 2024 the appellant attended 5/6 protests at the Sri Lankan Embassy and outside Parliament shouting slogans against the regime and holding placards as a protester within the wider crowd. We note that with the further submissions of September 2022 the appellant’s solicitors provided evidence of 5 separate episodes of sur place activity, namely Mullikvaikkal Remembrance Day, Independence Day, no to 13th Amendment outside Downing Street, Heroes Day, and a protest against family disappearance at Trafalgar Square. The appellant can be seen in the first group of photographs standing next to an LTTE flag and then holding on to a banner about the genocide of Tamils. In the second group he is standing with two women, one of whom is holding an LTTE flag, and they are holding a placard saying “Sri Lanka must end occupation of Tamil Eelam.” In the third group he is wearing a mask which is partly down and is standing in Trafalgar Square in front of banners protesting against missing Tamils. In the fourth group he is with people holding banners saying Gota should be prosecuted as a war criminal and there are banners with the TGTE emblem, and in the fifth group he is holding a detailed placard in English calling for an enquiry as to whether 52 LTTE members who surrendered to the army in May 2009 are alive or dead. Whilst there seem to be 5 distinct groups of photographs (certainly not 2 as the respondent suggested in RFRL) they are mixed up and it is not always clear which group relates to which protest. There are also some photographs of the appellant holding banners at some of the above protests in a language which is not English.
22. The additional photographs before the First-Tier Tribunal start at p 76 of the consolidated bundle. Some are of demonstrations/protests already before the respondent with the further submissions (for example p 76) but some of the photographs are new, for example where the appellant is wearing a completely black jacket which he did not wear in other photographs and what appears to be a homemade placard bearing the slogan “#Go Home Giota 2022” with a slogan above in another language (ps 77 and 82). Wearing a different black jacket the appellant is holding a banner with a group of people who have a banner promoting the Tamil Youth organisation (p 84 onwards). At ps 89, 90, 92, 97 and 104 next to the same Tamil youth banner the appellant is holding the LTTE flag. There are multiple copies of the same photographs. Wearing the same jacket as the one on p 84 the appellant is holding a banner with others, the banner being of the Tamil Co-ordinating Committee referring to Sri Lanka’s independence day as a black day for Tamils, and with the same jacket the appellant is photographed standing next to a woman holding the LTTE flag holding a banner about genocide on Tamils and the reason for it (p 88). The appellant therefore provided to the First-Tier Tribunal at least two further occasions of demonstrations/protests he had attended, at one of which he was himself holding the LTTE flag.
23. The appellant has provided further evidence since the First-Tier Tribunal hearing of a protest he is said to have attended on 27 July 2024 according to the index of the bundle. He is with a group of protesters, some dressed in shirts with the LTTE badge and “movement for self-determination of Tamil Eelam” and in one photograph the appellant is holding on to the same placard as a man wearing that shirt. At one point he is right behind a person holding an LTTE flag. We are satisfied that the appellant did indeed attend a protest on 27 July 2024 as some protesters are holding up a banner commemorating “Black July”.
24. Given the date of the further submissions we consider that the appellant’s attendance at demonstrations and protests did not start simply in the two years before the last hearing. It is consistent with the number of photographs of different events and the date of the further submissions that the appellant also attended events in 2021 as he says at paragraph 24 of his witness statement. Although the appellant has not been found to be generally credible, it is consistent with the photographs he provided and the preserved findings that he did as he said in evidence before us attend at 2 or 3 demonstrations in 2024 and that his last attendance was in February 2025. We therefore reject Mr Parvar’s submissions that the appellant has not been active at all since 2023. Taking everything together including the preserved findings we are satisfied that the appellant has been attending 2/3 protests or demonstrations a year since 2021. We see no reason to doubt that many if not most were organised by TGTE as the appellant says. In at least three different protests the appellant is by or near a TGTE banner (p 395, p 402) or people wearing vests with a TGTE slogan (p 98). In addition, KK and RS refers to the TGTE organising protests against the “disappeared” and the commemoration of “Black July” which are the subject matter of some of the protests the appellant attended (see [384]).
25. There is no evidence beyond the appellant’s word of his attending demonstrations from 2012 but given his genuine desire to show support for the plight of the Tamils and bearing in mind the lower standard applicable we are satisfied that he did attend some earlier demonstrations.
26. It was not suggested to us that the appellant would not continue to be on a watch list as the First-Tier Tribunal judge found, and given our finding, and some supporting documentary evidence that he has continued to attend demonstrations, we are satisfied that he would be.
27. It is a preserved finding that the authorities would be reasonably likely to know of the appellant’s attendance at protests and that he held placards. We consider that they would also know (see the headnote of KK and RS at [10]) that he was not simply passive but participated actively shouting slogans and in recent years had attended protests or demonstrations two or three times a year. We find that they are likely to know that many of the demonstrations he attended were organised by TGTE. We find that they are likely to know that he has on one occasion at least been holding an LTTE flag and at the majority of demonstrations is with or near to/standing by groups holding LTTE flags and/or TGTE emblems. We find that they are likely to know that he has held a Tamil Youth Organisation banner and a Tamil Co-ordinating Committee banner (which are both proscribed organisations (see [363] of KK and RS)). We find they are likely to know that he has also attended commemorative events such as Heroes Day.
28. The question is whether the appellant falls within the category of those who because of their existing profile are deemed to be of sufficiently strong adverse interest to warrant detention after travel back to their home area ([19] of the headnote of KK and RS). The question to be determined is whether the appellant is perceived to have undertaken a “significant role” in Tamil separatism ([439] of KK and RS). The country guidance case is clear that not being a “member” of a particular organisation does not preclude a sufficient profile [456], nor does the individual have to show that they have organisational duties within the organisation or a position of leadership [457]. However, it was not right to say that anyone who had undertaken any diaspora activities regardless of their level of involvement would be at risk [460]. It would be open to serious question as to whether the government would be reasonably likely to perceive an individual who had attended two, three or more demonstrations, standing passively at the back of a crowd and without having engaged in any other diaspora activity, as a threat to the integrity of the state [486]. However, the number of demonstrations attended could be relevant [488]. The nature of the organisations behind the demonstrations were also important [490]. A history of links to LTTE [498] and familial connections [499] are also relevant.
29. The appellant will be questioned on return to the airport in Sri Lanka. That questioning might well reveal the appellant’s previous low level of activism on behalf of the Freedom Party. We see no reason the appellant would be asked about making a complaint to the police in respect of a former government minister. We see no reason why it would already be known to the Sri Lankan authorities, as the complaint to the police was confidential and we see no reason that the authorities would be interested in asking the appellant speculatively if he had made a complaint about a former government minister now the government has changed.
30. Taking everything together and considering [21] of the headnote of country guidance, the appellant has attended demonstrations organised by TGTE and commemorative events and he has attended them regularly in recent years (since 2021) at the level of 2 or 3 a year and also attended some pre-pandemic demonstrations. Although not an organiser, he is an active participant, has held the LTTE flag and banners on behalf of other proscribed organisations. He has also been in groups with others who are holding LTTE flags, TGTE emblems and banners on behalf of proscribed organisations. Mr Parvar submits that holding a flag was only a small part of the evidence, but what we find significant is that the appellant has not been simply passive, there to show support but standing back from the crowd as might be expected from someone who was just generally anti-government. He looks from the photographs as if he is actively supporting the LTTE/TGTE cause at the demonstrations he attends. He has supported what was an anti-government party at a low level in Sri Lanka although he has no history with the authorities in Sri Lanka and nor does he have any familial connections to LTTE or similar organisations.
31. We bear in mind that the “reasonable likelihood” threshold is low, less than a 50% chance of persecution occurring and even a 10% chance that an applicant will face persecution for a Convention reason may satisfy the relevant test (see [52] of MAH (Egypt) v Secretary of State for the Home Department [2023] EWCA Civ 216 citing earlier case law). Bearing in mind that low standard, we are satisfied that there is a reasonable likelihood that the Sri Lankan authorities considering the appellant’s apparently active support for the LTTE/TGTE at demonstrations, even though the appellant does not carry out a wide range of activities, will perceive him to have a significant role in Tamil separatism. That being so country guidance indicates that he will be detained on return to his home area and given the risks of persecutory treatment as a result, he qualifies for asylum.
32. Although those are our primary findings, we continue to consider the second issue we identified. If we are wrong and there are no reasonable grounds for believing the appellant would be detained on return to his home area, we consider that monitoring would not reveal any further activity by the appellant as the appellant would be too scared to conduct such activity.
33. We consider that the appellant would want to carry out activities of the type he has done in the UK, to show solidarity with the Tamil people, including those who are separatists. We see no reason why he would not want to carry out in Sri Lanka, the type of activities he has carried out in the UK. He would not carry those out at least in part because of a fear of persecution. However, when analysing the HJ (Iran) test in this context, the question is whether the appellant would be prevented through fear of persecution from manifesting genuine separatist beliefs (see [544] of KK and RS). It is a preserved finding that the appellant is not in fact a Tamil separatist. There are other ways in which the appellant can express solidarity with Tamils in Sri Lanka for example through support of a nationalist organisation (see [553] of KK and RS). We do not have background material to indicate that simply protesting against the government in Sri Lanka would lead to persecutory treatment. The appellant’s return to Sri Lanka would not breach the HJ (Iran) principles therefore. The appellant would not be able to conduct the activities he wanted on return to Sri Lanka due to fear of persecution, but this is different from his not being able to express his political opinion through fear of persecution. The appellant, not being a separatist, would be able to express his solidarity with the Tamil people and anti-government sentiments on return to Sri Lanka, he would just not be able to express those sentiments in his preferred way. That is not a breach of the refugee convention.
34. However because, as we have explained, our primary finding is that there is a reasonable likelihood that the appellant would be detained on return to his home area because of the authorities’ perception of him, he qualifies for asylum and return would breach his rights under Article 3 ECHR.
35. On remaking, the appeal is allowed on asylum grounds and the associated human rights’ grounds.

Notice of Decision
The appeal is allowed on asylum and human rights’ grounds (Article 3 ECHR).

A-R Landes

Judge of the Upper Tribunal
Immigration and Asylum Chamber

8 June 2025

Annex (Error of Law decision)

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004911

First-tier Tribunal No: PA/51934/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

UPPER TRIBUNAL JUDGE LANDES

Between

C S L A
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Bandegani, Counsel instructed by MTC Solicitors
For the Respondent: Mr Terrell, Senior Home Office Presenting Officer

Heard at Field House on 3 January 2025

Order Regarding Anonymity

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, a citizen of Sri Lanka, appeals with the permission of Judge of the First-Tier Tribunal Dainty, against the decision of Judge Hill promulgated on 2 July 2024 dismissing his appeal against the respondent’s refusal of 14 March 2023 of his fresh asylum claim made on 22 September 2022.
2. The appellant came to the UK as a visitor on 27 October 2007. He claimed asylum on 14 June 2016 on the basis that he was a supporter of the Sri Lankan Freedom Party who had been arrested, questioned and tortured and in whom the authorities would still be interested. In dismissing his appeal against the refusal of his asylum claim, Judge Isaacs found that the appellant was not a credible witness, that he had not been detained and tortured, that his involvement in the Freedom Party was at a very low level and that he would not be at risk on return.
3. Before Judge Hill, the appellant did not seek to go behind Judge Isaac’s factual findings, but contended that he would be at risk as a result of his sur place activities in the UK [24]. It was also claimed that there would be a breach of Article 3 ECHR because of the appellant’s mental health if he were returned to Sri Lanka, but Judge Hill’s adverse findings in that respect were not challenged in the grounds of appeal.
4. Judge Hill accepted that the appellant had sincerely held political beliefs in opposition to the government of Sri Lanka albeit they had manifested in a very low level of activism [34]. He was anti-government, rather than a Tamil separatist [34]. She accepted that in the past two years he had attended 5/6 protests at the Sri Lankan embassy and outside Parliament shouting slogans and holding placards [35] and that he had made a complaint to the Metropolitan Police against the Sri Lankan Foreign Minister although she found that such complaint was, at least in part, a device to bolster his appeal [36]. She accepted that the Sri Lankan government would be reasonably likely to know of the appellant’s attendance at protests and the holding of placards [42] and of his sur place activities [45] and that therefore he would appear on a watch list and would be likely to be interrogated on arrival at BIA [45].
5. She concluded however at [46]:
“Considering the guidance in KK and RS I am not persuaded that the Appellant falls into the category of someone perceived to have undertaken a significant role. This is because the evidence is of an individual who attends a handful of protests per year as a member of the congregation. He is not a leader, he is not a member of any organisation, there is no evidence that any of his political views are circulated on the internet. Accordingly, both the type and extent of his activities are modest. Given the findings of IJ Isaacs, there is no relevant history in Sri-Lanka. Nothing about the Appellant’s circumstances would lead him to be considered by the GOSL as holding a significant role.”
6. Judge Hills considered, giving reasons, that she was not satisfied that the appellant would be asked any questions about his criminal complaint [47], but if she was wrong he was someone who was willing to lie when it was to his advantage and she was not satisfied that the appellant would feel morally compelled to tell the truth, if he was asked such a question. She thought it was more probable that he would deny it [48].
7. When considering the application of the HJ (Iran) principles the judge was satisfied that the appellant might continue to express anti-government sentiment on his return to Sri Lanka through occasional attendance at protests but she was not satisfied that he would seek to advocate for the separatist cause as he had made clear that was not his primary motivator and here his anti-government, as distinct from separatist ideology was material. If he simply occasionally protested against the government, she did not accept that would be reasonably likely to attract the persecutory interest of the authorities.
8. For those reasons, Judge Hill dismissed the appeal.
Claimed errors of law
9. It was averred in the grounds that the judge:
(i) Failed to consider material matters in that the appellant had been active in events organised by TGTE a proscribed organisation, had attended commemorative events and had held Tamil Eelam flags and placards supporting Tamil separatism; she had also failed to consider what the appellant might be asked about his sur place activism;
(ii) Had imposed a requirement for the appellant to lie when questioned;
(iii) When applying the HJ (Iran) principle, had failed to consider the effect of the appellant being on a watch list.
Discussion
10. Mr Terrell accepted during the course of Mr Bandegani’s submissions that there was an error of law as set out at ground 1.
11. I agree that there was such an error. Judge Hill accepted that sur place activities on behalf of a proscribed organisation were a “relatively significant risk factor” and she reminded herself that a “significant role in Tamil separatism” was a fact specific assessment. She accepted as set out above that the appellant had attended protests, shouted slogans and held placards. She said that it was difficult for her to discern anything more detailed about the precise nature of each protest, but photographs show the appellant holding Tamil Eelam flags. The judge simply did not factor into her assessment the appellant’s case that he had been active in events organised by TGTE, a proscribed organisation. That was a material matter given the significance of such activity as a risk factor and the failure to make findings and factor those findings into the ultimate risk assessment was, I agree, a material error of law.
12. Mr Bandegani did not pursue ground 2 after we discussed that the judge’s finding was in the alternative anyway; she was not suggesting that the appellant was required to lie, she made a positive finding that in fact he would lie. I consider ground 2 discloses no error.
13. Mr Terrell did not accept that ground 3 disclosed an error. He said there were many people in Sri Lanka who did not like the government, indeed the President had been forced to flee; the judge had tried to apply the guidance in KK and RS to what was an unusual situation. Her approach had not been irrational and there was no basis for interfering with it.
14. Mr Bandegani submitted that it was not a question of rationality; it was the application of country guidance; the judge had not taken into account that the appellant had aligned himself with TGTE, a prescribed organisation and therefore any anti-government sentiments he expressed on return would be seen in that light. I said that did not fall within the scope of ground 3 which was expressed to be failure to consider the effect of the appellant being on a watch list. He said if that were so, then the point was a Robinson obvious one or at least the problem with the judge’s analysis of the HJ (Iran) aspect was bound up with ground 1; the appellant had said in his witness statement that he stood by TGTE and as a human rights campaigner their views aligned with his own and that had not been considered by the judge, the point fed into ground 3 as well as ground 1.
15. On reflection, I consider that bearing in mind the accepted error as expressed at ground 1, there is also an error in ground 3 when it is taken together with ground 1. When the judge was considering the effect on return to his home area of the appellant being on a watch list, she should have factored into that consideration findings about the appellant’s involvement with TGTE, which could have influenced her conclusion about what activities the appellant would want to carry out on return and how such activities would be perceived by the authorities.
Conclusion
16. The judge’s decision to dismiss the appeal on protection grounds and the associated human rights grounds is set aside. Her conclusion that the decision did not breach Article 3 ECHR on medical grounds ([52] – the first sentence of [62]) was not challenged and stands.
17. Judge Hill’s conclusion that the factual findings of Judge Isaacs in respect of the historic claims were not disturbed [27] means that the issues to be decided are:
(i) Whether the appellant has a well-founded fear of persecution upon return to Sri Lanka as a result of his sur place activities;
(ii) What specific political activities the appellant would involve himself in on return to Sri Lanka or would wish to involve himself in were it not for fear of persecution and whether if he did carry out such political activity (actual or desired) he would have a well-founded fear of persecution.
18. The following other findings of Judge Hill are preserved:
(i) The appellant was seeking to fabricate aspects of his account [31] and is not a credible witness who provided a truthful account to her on all matters [32];
(ii) The appellant has sincerely held political beliefs in opposition to the current government (as at the date of the hearing before Judge Hill) which were manifested in a very low level of activism [34];
(iii) The appellant is not a Tamil separatist per se but attends protests as a way to show solidarity to those who have suffered and at the time of the hearing before Judge Hill did not want to hold any post or join any particular organisation [34];
(iv) In the two years prior to May 2024 the appellant attended 5/6 protests at the Sri Lankan Embassy and outside Parliament shouting slogans against the regime and holding placards, as a protestor within the wider crowd [35];
(v) On 18 November 2023, the appellant made a complaint to the Metropolitan Police against Mr Sabry, but it was not truthful to the extent it misrepresented the appellant’s direct knowledge of the parties involved and it was at least in part a device to bolster his appeal [36];
(vi) GOSL through their monitoring were reasonably likely to know of the appellant’s attendance at the protests referred to and his holding of placards [42];
(vii) The appellant would (as at May 2024) appear on a watch list and be interrogated on arrival at BIA [45];
(viii) If the appellant were asked at the airport whether he had made a complaint to the Metropolitan Police, he would deny doing so [48].
19. The finding that the appellant would not be asked at the airport about whether he had complained to the police should not be preserved, as part of the judge’s reasoning was that she did not consider that the appellant would be perceived as having a significant role, and this finding is in issue. I accept that the judge also found that the appellant would lie if he were asked such a question and I have preserved such finding, but the judge did not consider explicitly whether part of the reason for the appellant lying would be a well-founded fear of persecution for a genuinely held political belief.
20. I do not consider the finding about what the appellant would wish to do on return should be preserved. Whilst it has to be kept in mind that Judge Hill’s finding was that the appellant might continue to express anti-government sentiment on his return to Sri Lanka through occasional attendance at protests, I consider the precise nature of what the appellant would be likely to do on return must be considered at the time of the remaking hearing in the light of all the evidence available then.
21. Mr Bandegani asked for the appeal to be remitted to the First-Tier Tribunal. I appreciate that the appellant wants to start again with a fresh right of appeal to the Upper Tribunal, and that there will be some further necessary fact finding. I have considered the Practice Directions and Paragraph 7 of the Practice Statement in the light of AEB v Secretary of State for the Home Department [2022] EWCA Civ 1512 and Begum v Secretary of State for the Home Department [2023] UKUT 46. I am not satisfied that the effect of the error has been to deprive the appellant of a fair hearing or other opportunity for their case to be put to and considered by the First-Tier Tribunal; the judge simply failed to take account of one part of the factual matrix whilst making clear findings on other aspects. I also do not consider that the extent of the judicial fact finding necessary is such that it is appropriate to remit the case to the First-Tier Tribunal; although there is some fact-finding it will be relatively limited given the preserved findings; the remaking will be more about the application of country guidance and general principles to those findings.
22. The rehearing will therefore take place in the Upper Tribunal. There will be directions for the service of any further evidence with liberty to apply.

Notice of Decision
The judge’s decision dismissing the appeal on protection grounds and the associated human rights grounds contains a material error of law and is set aside.
The judge’s findings referred to at [17] and [18] above are preserved.
The judge’s decision dismissing the appeal on all other grounds stands.
Remaking of the decision is retained in the Upper Tribunal.

Directions
1) The resumed hearing will be listed at Field House on the first available date after 14 days with a time estimate of 3 hours. A Sinhalese interpreter to be provided for the appellant. The time estimate is designed to be generous; if it is thought longer is necessary and/or if specific dates need to be avoided for listing purposes the appellant’s representatives should respond within 7 days of issue of these directions;
2) Either party is at liberty to file and serve further evidence relevant to the issues to be decided at least 14 days before the resumed hearing;
3) Any evidence filed and served by the appellant must be in a consolidated electronic bundle properly indexed and bookmarked containing all the evidence relied upon;
4) There be liberty to apply for any further directions the parties consider appropriate.

A-R Landes

Judge of the Upper Tribunal
Immigration and Asylum Chamber

22 January 2025