Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: UI-2024-005198

First-Tier Tribunal Nom: PA/56696/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 2nd of July 2025

Before

UPPER TRIBUNAL O’BRIEN
UPPER TRIBUNAL JUDGE NAIK KC

Between

RV
(ANONYMITY ORDER MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Heard at Field House on 3 April 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.

Representation:

For the Appellant: Ms Benfield - Counsel
For the Respondent: Mr Tufan – Senior Presenting Officer

DECISION AND REASONS

Introduction
1. The appellant is a Sri Lankan national of Tamil ethnicity, born on the 8th of December 1958. She is now 66 years old. RV entered the UK on a six month visit visa in November 2021. She claimed asylum on the 11th of May 2022 which was refused by the respondent in a decision dated the 12th of September 2023. The appellant appealed to the First tier Tribunal and her appeal was heard and dismissed by a Judge of the First tier Tribunal (“the FTTJ”) in a determination dated the 14th of September 2024.
2. Permission to appeal was granted by Upper Tribunal Judge Lindsley on 19 November on all grounds which were in summary as follows. First, the FTTJ erred in law by failing to properly assess the appellant’s risk of persecution due to her sur place activities/give adequate reasons in the decision applying extant country guidance and the respondent’s CPIN on Tamil Separatism dated August 2022 regardless of the fact that her history of past persecution was not found to be credible and she was not found to have attended the UK demonstrations out of genuine belief. The appellant clearly attended TGTE demonstrations in 2023 and 2024 wearing a Tamil scarf, holding a Tamil flag. This alone would place her at risk of serious harm. Second, the FTTJ undertook an irrational assessment of risk to the appellant as a lone woman in a female household, in particular in light of the erroneous assessment of risk arising from her sur place activities and consequential association with a proscribed terrorist organisation: the TGTE. Third, the errors in the first two grounds led the FTTJ into error in making the Article 8 assessment.
3. In a decision promulgated on the 10th of February 2025, the Upper Tribunal found that the FTTJ's decision involved the making of an error of law and set it aside with certain findings of fact preserved. That decision is annexed below. The Tribunal observed that while there may be some limited fact finding on rehearing “what is required is a proper analysis of the risk to the appellant on the basis of those factors found by the judge which remain undisturbed and by reference to the background evidence”.
4. Those findings were set out at paragraph 25 of that determination:
(i) The appellant is a vulnerable witness in so far as any short-term memory issues are concerned.
(ii) The appellant did not attend demonstrations in Sri Lanka.
(iii) The appellant has not come to the adverse attention of the authorities through her house being used by another person for LTTE meetings.
(iv) The appellant has attended 2 commemorative events in the UK organised by the TGTE at which she wore an LTTE scarf/held an LTTE flag.
(v) As of the 5th of September 2024 the appellant had not attended any other demonstrations in the UK, was not a registered activist of the TGTE and had not carried out any anti- government/ pro-Tamil activities beyond attending the 2 events discussed above.
(vi) The appellant has a valid passport.
(vii) The appellant would be returned as a single female head of household. She would be of low economic status but would not be living in isolation from neighbours.
(viii) The appellant enjoys family life with her daughter and her family.
(ix) The best interests of the children are to remain with their parents.
(x) Although there would be some disruption to the children if the appellant left there is no evidence that the day-to-day care of the children would be impacted in any significant way.
5. In advance of this further hearing the appellant filed and served further evidence in support of the re-determination of her appeal, pursuant to the directions given in the Error of Law decision. That further evidence was photographs of the appellant and attending Heroes Day event in London on the 27th of November 2024 which postdates the FTTJ's determination and therefore the preserved factual findings. Secondly that material contains articles which address the current situation in Sri Lanka from publications from the Tamil Guardian and the Daily Mirror online ranging from 2024 up to and including 24 February 2025. Some of the material post-dated the previous September 2024 hearing in the FTT and there was no objection in any event and we admitted the material.
6. As a preliminary issue the Tribunal was invited to record that the Appellant is a vulnerable witness in so far as any short-term memory issues are concerned. That was in fact a preserved finding from the error of law determination (at para 25.1) and we proceeded on that basis and that in any event it was not disputed by the respondent in light of the preserved finding.
7. The Tribunal was therefore invited to take this into account when considering her further evidence including any further oral evidence at the hearing.
The Evidence
8. The appellant gave evidence via a Tamil interpreter who was only available by video-link (when the original interpreter booked was unavailable) whereas the hearing was otherwise in person. The appellant’s representative had no objections to this course and the appeal proceeding. She adopted her witness statement dated 10 March 2024. She was taken to the photographs at page 46 of the bundle which she confirmed were her attending the Heroes Day event on 27 November 2024. She stated that she did not know the exact location of the event.
9. In cross-examination the appellant was taken to paragraph 9 of her witness statement in relation to the TGTE in the UK which organisation supports Tamil separatism. She confirmed that she had attended meetings, was involved with the TGTE and did attend Heroes Day here but was not a member in Sri Lanka or in the UK. She was asked if she knew who the leaders in the UK are, to which she replied Vellupillai Prabakaran. She was also asked about paragraph 10 of her witness statement where she stated that she had been attending TGTE events in the UK since early 2022, but that in her interview with the Home Office on 7 September 2023 she did not mention this. She replied that she could not remember why but she may have forgotten to mention them. We reminded Mr Tufan that there were two preserved findings of fact from the FTT that she had attended two demonstrations or commemorative events which are the Tamil Heroes Day in Oxford on 27 November 2023 and a ‘Black July’ demonstration in July 2024 and that she was not a registered activist or member. Mr Tufan asked the appellant what was her role in the three demonstrations or events she had attended in the UK, what did she actually do. The appellant replied that she garlanded the heroes and put flowers on them [their photographs]. She also confirmed that she had an up-to-date Sri Lankan passport valid until 25 January 2028. There was no re-examination.
10. The appellant’s daughter VN gave evidence. She confirmed her address and adopted her witness statement dated 4 September 2024 and gave some further updating evidence in chief. She confirmed that the appellant her mother was living with her and had been at the time of the FTT appeal hearing in Birmingham on 5 September 2024. She confirmed her mother’s medical condition as set out on page 105, paragraph 44 and that she was taking a range of medication including anti-depressants mirtazapine and is continuing to take it as well as counselling to support her mental health which has commenced over the last 6 weeks by telephone and they are going to discuss her case further and revert. Before the appellant came to the UK in 2021 she was living alone in Sri Lanka. She was asked whether she had always lived alone since her father passed away in 2009. She replied from 2009 to 2014 they aware all together as a family except one sister who had left. After 2014 her mother was living alone. In cross-examination, she was asked to confirm whether she and her husband continue to support her mother financially which she agreed. She was then asked if her mother had to return to Sri Lanka would she continue to support her financially. She replied that yes even though we support her financially she is unable to lead her own life, that physically she is not fit enough to live on her own. She was then asked whether she was aware that her mother has attended TGTE events in the UK and if so how did she attend if not fit enough? She replied that she and her sister are living in the UK they took her themselves to the TGTE meetings in the UK, so in effect though she has health problems, she has managed to attend such events in the UK.
11. The appellant then called her other daughter RV who confirmed her new address where she had moved to 6 months ago in Birmingham and adopted her witness statement prepared for the appeal in September 2024, although it was dated 10 March 2024. She was asked some further updating questions in chief. Her new address was 5 minutes’ drive from her sister. She confirmed that her son was undergoing speech and language testing and that he was still on a waiting list. In cross-examination she was asked by Mr Tufan whether she supported her mother financially in the UK which she agreed she did. She was asked if her mother had to return to Sri Lanka whether she would you carry on with her financial support? She agreed that yes we can support her financially but there is a lot of threat to her life so we are reluctant to send her back to Sri Lanka.
Submissions
12. In submissions Mr Tufan observed that in paragraph 25 of the error of law decision a number of findings of fact were preserved by the tribunal, that the appellant is a vulnerable witness to a limited degree, that she has not come to the adverse attention of the Sri Lankan authorities and that there were two events which it is accepted that she attended in the UK. In light of the photographs it was accepted that the appellant had attended a third wearing an LTTE scarf and hat and that the event was organised by the TGTE. However he submitted that when he asked the appellant who was the leader of the TGTE in the UK, she incorrectly answered Vellum Prabhakaran rather Mr Yogalingam. His submission was that this is a case in which the principles of Danian [1999] EWCA Civ 3000 apply. Even if the appellant is not a firm believer of LTTE separatism or support, the issue is whether she would be perceived to be at risk on return because of attendance at the two and now three events in the UK. This is based on her presence and the photographs of her attendance alone. It is submitted that she did not play any leading part in any of the events, that she is a “mere hanger on” and she only started attending after she received the reasons for refusal letter. She didn't mention in the record of her asylum interview that she was attending.
13. In determining whether the Government of Sri Lanka would be interested in her, the head note of GJ [2013] UKUT 319 (IAC) stated:
(8) The Sri Lankan authorities' approach is based on sophisticated intelligence, both as to activities within Sri Lanka and in the diaspora. The Sri Lankan authorities know that many Sri Lankan Tamils travelled abroad as economic migrants and also that everyone in the Northern Province had some level of involvement with the LTTE during the civil war. In post-conflict Sri Lanka, an individual's past history will be relevant only to the extent that it is perceived by the Sri Lankan authorities as indicating a present risk to the unitary Sri Lankan state or the Sri Lankan Government.
(9) The authorities maintain a computerised intelligence-led "watch" list. A person whose name appears on a "watch" list is not reasonably likely to be detained at the airport but will be monitored by the security services after his or her return. If that monitoring does not indicate that such a person is a Tamil activist working to destabilise the unitary Sri Lankan state or revive the internal armed conflict, the individual in question is not, in general, reasonably likely to be detained by the security forces. That will be a question of fact in each case, dependent on any diaspora activities carried out by such an individual.
14. Mr Tufan submitted that this showed a sophisticated level of intelligence on the part of Sri Lankan authorities and they understood the context of economic migrants and that they would know that there will be some hangers on and some people will attend demonstrations to make good an asylum claim. Even if the Sri Lankan authorities knew about her they would not be interested in her and even if they became aware of her activities. She is now aged 66 and has some issues with her memory. Whether they will know is the question to be answered. She has a valid passport until January 2028, thus she is not required to attend the Sri Lankan High Commission to be documented, hence there is no trigger point in the UK. Whilst we know they take videos and photographs and can use facial recognition technology, the issue is whether there is a real risk that will they resort to that for someone who has gone to the UK to visit her family. He questioned whether there would be use of such facial recognition technology and contended that this was a matter which was “up in the air” with reference to paragraph 50 of KK and RS (Sur place activities: risk) Sri Lanka CG [2021] UKUT 130 (IAC). There it is stated: “on the basis of information provided to him by a security source in 2018 and again in November 2019, Dr Smith states that the authorities gather information on diaspora activities by the use of infiltrators, informants, and other forms of surveillance such as taking photographs at demonstrations. All such intelligence is sent back to the Ministry of Foreign Affairs and then on to relevant intelligence sections within the SIS, TID, CID, and the Ministry of Defence. Information gathered by informants is handed over to the Defence Attaché in the SLHC whose job description specifically includes, amongst other things, the monitoring and notification of anti-government activities in the United Kingdom. The Defence Attaché files a weekly report back to the Chief of National Intelligence in Sri Lanka whereupon further analysis is conducted. Dr Smith assumes that all information gathered by informants is provided to the Defence Attaché who then sifts it prior to transmission to Sri Lanka. In this respect, Dr Smith believes that the SLHC is much more than a “post-box”. As regards facial recognition technology, Dr Smith is unable to provide a clear picture and he accepts that such a capability may have some distance to travel. In light of his recent trip to Sri Lanka, he confirms that there are no obvious cameras in the airport. However, there is a manual face recognition process by which hardcopy photographs of individuals previously identified can be matched to the faces of those detained at the airport. He was unable to provide further details”. Mr Tufan’s submission was that the appellant would simply not be at risk.
15. With regards to Article 8 and the medical evidence this shows that there are very mild issues for the appellant which do not meet the very high threshold in medical cases. Following HA, If the Appellant cannot succeed on article 3 medical grounds then she cannot succeed without more on Article 8. What is that “more”? The appellant is a mother and grandmother in the UK with her two children and grandchildren. She does not have parental responsibility for the children. There is a preserved finding that the appellant and daughters and grandchildren enjoy family life in the UK. The question is whether it would be unduly harsh for the appellant to be removed to Sri Lanka without her family. He contended that this was not the case. She would be financially supported and she is a Sri Lankan national who would be living alone in her home country. This is not a PP (female headed household; expert duties) Sri Lanka [2017] UKUT 117 (IAC) type of case, rather she would be “just another Sri Lankan” living in Sri Lanka and her Article 8 rights (and those of her family in the UK) would not be breached by her return.
16. Ms Benfield made submissions on behalf of the Appellant and she relied on her skeleton argument dated 31 March 2025.
17. First as to risk she relied on the country guidance determination of the tribunal in KK.
18. As to the issue of the leader of the TGTE in the UK, first she noted that at para 136 it was recorded that “Mr Yogalingam has been a Member of Parliament for the TGTE since 2011 and is a former Deputy Minister for Sports and Community Health. He is also the Assistant Director of Act Now, and Executive Committee Member of Nations Without States, and a National Councillor of the National Liberal Party (the United Kingdom-based political party promoting self-determination of ethnic minorities who have been forced from their homelands)”. First Ms Benfield submitted that the hearing in KK took place in 2020 and the judgment given in 2021. Second he is an MP and former deputy and he is not the leader of the TGTE in the UK and nor has the Secretary of State not put in any evidence on this issue. In any event Vellum Prabhakaran is the head of the LTTE. Mr Yoglingam is head of the government in exile in the UK branch. Finally she submitted that this does not really take matters any further given the issues before the Tribunal to be determined.
19. Mr Tufan relies on Danian and the suggestion that the appellant is an opportunistic hanger on. Ms Benfield referred to paragraph 494 of KK and RS and relied on the finding there that when assessing risk motivation does not matter to the Sri Lankan authorities:
“In terms of the evaluative assessment of an individual’s profile as it is reasonably likely to be perceived by GoSL, we agree with the appellants’ submission that motivation is not relevant. The reason for this lies within the previous sentence: the critical question is what the authorities will make of the activities in respect of which they have obtained information. They will have little or no inclination to enquire into an individual’s good faith or lack thereof. We acknowledge that there must exist the possibility of opportunistic “hangers on” making out a claim for international protection. Unattractive as this may seem, it cannot act as a valid basis for rejecting a risk”.
20. Hence the thrust is what is their perception and what the authorities will make of the activity relied on. They have no or little inclination to inquire as to good faith or lack of it.
21. Here the appellant has the preserved findings from the error of law determination by this tribunal. There is activity post-interview. In interview she was asked the single question at question 61 “have you been involved in any political activity in the UK?”. She had attended commemorative events in the UK organised by the TGTE. The appellant was not asked about such events squarely and she did not say that she had not attended.
22. Turning to facial recognition technology in KK and RS, the Tribunal building on GJ and considering the position in 2021 examined the question of the monitoring and information gathering in the United Kingdom. At paragraph 403, the key findings in GJ on the issue of monitoring and information gathering by the Sri Lankan authorities in the United Kingdom are to be found in paragraphs 324 and 336:
“324. President Rajapaksa has stated, and the press reports and experts confirm, that the government has sophisticated intelligence concerning who is contacting the diaspora or seeking to revive the quest for a Tamil homeland. The government's intelligence includes monitoring of activities online, on mobile phones, and in the diaspora in the four hotspots: London, Paris, Oslo and Toronto. It has informers throughout the Northern and Eastern Provinces, and in the diaspora. It intercepts electronic and telephone communications and closes down websites. Photographs are taken of demonstrations and the GOSL sponsors an image recognition project at Colombo University.
…336. The former Tamil areas and the diaspora are heavily penetrated by the security forces. Photographs are taken of public demonstrations and the GOSL may be using face recognition technology: it is sponsoring a face recognition technology project at the University of Colombo. However, the question which concerns the GOSL is the identification of Tamil activists working for Tamil separatism and to destabilise the unitary Sri Lankan state. We do not consider that attendance at demonstrations in the diaspora alone is sufficient to create a real risk or a reasonable degree of likelihood that a person will attract adverse attention on return to Sri Lanka.
23. Hence the panel concluded that the Government of Sri Lanka has the ability and knowledge which has kept pace with technological developments. At paragraph 406 the Tribunal try to understand the nature of monitoring. Ms Benfield relied on paragraph 29 to 30 of her skeleton argument as to this routine methods of surveillance and the motivation of the Sri Lankan government. They photograph demonstrations and commemorative events. Their purpose is gather information and to disseminate it back to Sri Lanka and the authorities there. It is entered into a database on those who may be involved in relevant activity. The Secretary of State has made no challenge as to what the appellant has said as to why she attends. At paragraph 9 of her witness statement as to why she attended the events, the appellant says she attended because she supports the Tamil cause in the UK and separatism therefore she is involved in political activity. At paragraph 11 she confirms she is from Jaffna near Vellum Prabhakaran’s hometown. Supporting the Tamil cause is a follow on from that. Although motivation is not determinative of risk, this is not a case where that is the conclusion here. By reference back to her skeleton argument, Ms Benfield contends that this means that the appellant is at risk because she attended three commemorative events in the UK, organised by the TGTE, wearing insignia linked to the LTTE. She submits that clearly applying the country guidance and looking at present country material, there is a real risk that the appellant would have been identified as someone involved in the activities she had been accepted to have attended.
24. Some aspects of the information relating to the appellant’s activities in the UK and the nature of them are addressed at paragraphs 18 to 22 of her skeleton argument.
25. Ms Benfield submitted that there was a distinction made between demonstrations and commemorative events, which commemorate those LTTE members who fought against the Sri Lankan government. She drew the distinction that these event are not demonstrations about civil and political rights in Sri Lanka and that distinction is important. At paragraph 19 of her skeleton argument, Ms Benfield addresses the evidence given by Professor Gunaratna in KK and RS at paragraph 121 as to these being such “apex events”. It is likely that the Sri Lankan authorities will more heavily monitor and try and identify those involved in those kind of events (at paragraph 20 b of her skeleton argument with reference to an article from the Tamil Guardian dated 25 November 2024 [B37] where it is reported that the Sri Lanka will not allow photographs of fallen cadres on Maaveerar Naal, noting that flags or flowers were not permitted and volunteers had been summoned by the authorities. The article further records that “harassment and intimidation” of those who attended events continued into 2024 [B38]. It notes that the authorities often cite national security concerns regarding the restriction on such events [B41].
26. There is information recorded from a Sri Lankan minister, where he said this is because the displaying of them is an image of a banned terrorist organisation. There is a link back to the revival of the LTTE which is a serious concern of Sri Lankan government. Hence there is a clear relevance of nature of the organisation and in KK, it was accepted that the TGTE is a front for the LTTE. There are links to further country articles in her skeleton at paragraph 24 on which she relied in addition to the material in the bundle. This demonstrates as to the TGTE [at B 29-B30], that those in contact with those organisation face arrest as criminals. Other groups have been de-criminalised, but the TGTE remains prescribed [B 24-25]. There is a particular interest maintained by the Sri Lankan government in the TGTE as at Feb 2025 which is consistent with KK’s findings of adverse identification risk for those associated with the TGTE.
27. Hence her submission is that the relevance of wearing LTTE insignia, and the association which is committing a criminal offence under the Prevention of Terrorism Act (PTA) is relevant to the risk of harm occasioned by identification by the Sri Lanka government monitoring and whether she or any other individual can be said to be squarely supporting the LTTE. This is a fact specific exercise as confirmed in GJ. The framework in KK and country evidence in the most recently articles shows that there is a real risk of harm to the appellant arising from the concern by the Sri Lankan Government from her attendance at commemorative events, wearing insignia and utilising. There is a more than fanciful prospect of such harm. She submitted that per HJ(Iran) set out at paragraph 35 of her skeleton argument, the appellant’s motivation is relevant. PP is not country guidance, it concerns the risk assessment in relation to a female Tamil head of household, someone with low economic status, not living in isolation entirely.
28. Ms Benfield’s submission was that if the Tribunal were against the appellant on holding genuine Tamil sympathies or support, then her motivation is irrelevant. Nevertheless, the Tribunal can safely conclude that the reason that she attends events in the UK is because she is supportive of the Tamil cause and sympathetic to it, as her accepted activity in the UK shows. She has never claimed anything more than to have grown up experiencing hostility as a Tamil in Sri Lanka.
29. As to Article 8 and proportionality these findings are relevant. She has two daughters in the UK. It is accepted that they enjoy family life together and are a family unit with them and her four grandchildren. She lives with her eldest daughter and her other daughter lives close by. They have mutual supportive relationships within the family. Her children provide her with financial support and accommodation. This is not an elderly dependent relative case under the immigration rules but one where the appellant as the relative plays an important role in family life. There was nothing in her statement that was challenged as to the role that the family have had and role of the appellant within that unit. Whilst she has a home in Sri Lanka and could be financially supported there by her family in the UK, that is only one facet of the issue of the proportionality assessment here. The family are very concerned about the risk to their mother. They function as a family unit here, supporting family directly, despite the difficulty of leaving and being fractured for some years. If her UK family are concerned about her welfare and medication, then she can show it would be disproportionate to remove her to Sri Lanka now at her age and with those exceptional factors. The appellant can succeed on this ground without a findings as to whether she would be at risk when one factors in her very strong relationship with her children and grandchildren, when looking at all the factors together.
30. If the appellant succeeds under the Refugee Convention/Article 3 ECHR, then the tribunal need go no further. If the Tribunal rejects that risk, then there is no need to consider PP, but if the Tribunal is against the appellant on risk, then the Tribunal should look at PP, VSO and Article 8, but the primary argument is that it is unnecessary to consider Article 8 ECHR.
Findings
31. The appellant, as a Tamil from Jaffna, was likely to be a supporter of the LTTE when she lived there even without undertaking any political activity whilst in Sri Lanka. Further to the preserved findings as to the 2023 and 2024 commemorative events in the UK, we accept that she attended a further such event in November 2024 organised by the TGTE in the UK, in line with her support for the LTTE. We also note that she was not asked in her interview in 2023 whether she had attended any such events, but rather the question was focussed on any political activity undertaken. There is a clear distinction between political activity and attending such events in support of the TGTE. Certainly, we accept that the appellant herself would perceive there to be such a distinction. Before us, we accept the account she gave us that she was ‘garlanding’ the pictures of LTTE fighters who had been killed, in commemoration of them. Her failure to name Mr Yogalingam and his role in the TGTE in the UK, but instead the LTTE overall leader Vellum Prabhakaran, does not affect that conclusion. Hence we do not find that this is a Danian case in light of our conclusions as to her motivation and we reject the notion that she is a “hanger-on”. However for completeness we confirm that even had we rejected the genuineness of her motivation, there is a real risk that the appellant would be at risk on return on account of how the Government of Sri Lanka would perceive her, given her attendance at the events of a proscribed organisation and her activity contravening the PTA.
32. This support whether genuinely motivated (as we find) or not and her actual attendance at such commemorative events in the UK, which are likely to be monitored by the Sri Lankan Government here with a view to identifying potential supporters and/or activists of the LTTE and/or the proscribed TGTE, gives rise to a real risk of serious harm or persecution.
33. The headnote in KK and RS states:
(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.
The term “significant role” does not require an individual to show that they have held a formal position in an organisation, are a member of such, or that their activities have been “high profile” or “prominent”. The assessment of their profile will always be fact-specific, but will be informed by an indicator-based approach, taking into account the following non-exhaustive factors, none of which will in general be determinative:
i.    the nature of any diaspora organisation on behalf of which an individual has been active. That an organisation has been proscribed under the 2012 UN Regulations will be relatively significant in terms of the level of adverse interest reasonably likely to be attributed to an individual associated with it;
ii.   the type of activities undertaken;
iii. the extent of any activities;
iv. the duration of any activities;
v.   any relevant history in Sri Lanka;
vi. any relevant familial connections.
(22) 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.
34. In KK and RS the tribunal made findings relating to the TGTE and proscribed Tamil diaspora groups. First, the TGTE is an avowedly separatist organisation and in a real sense was borne out of the LTTE (paragraph 376). Second, the TGTE is viewed by the Government of Sri Lanka as a front for the LTTE (paragraph 380) and is viewed with significant degree of hostility (paragraph 387). Third, it is reasonably likely that the Government of Sri Lanka will have a significant adverse interest in all proscribed groups (paragraph 393). It was noted in KK and RS from the expert evidence of Doctor Nadarajah that the effect of proscription is that this status enables the authorities to take action against suspected members or supporters under the PTA (paragraph 100). Although the TGTE and other organisations were first proscribed in 2015, we accept the significance of the recent evidence dated the 24th of February 2025 where the Tamil Guardian reported that the Sri Lankan government had issued an extraordinary Gazette continuing the ban on several Tamil diaspora groups including the TGTE, claiming they are supporting “terrorism-related activities”. The effect of the gazette is that Sri Lankans are prohibited from having any contact with the organisation and that it is a criminal offence to do so. Hence, the appellant's attendance at events which are held by the TGTE contravened the Prevention of Terrorism Act and the associated proscription of the TGTE. As accepted by the respondent in her CPIN of 2022 it does not take much to contravene the PTA and with the PTA having extra territorial effect, the appellant has now committed an offence for which punishment is harsh and draconian (see KK and RS (paragraph 39). In KK and RS the tribunal held that holding flags or banners displaying the LTTE emblem (paragraph 414 iii) was a matter of interest to the Government of Sri Lanka and it is a matter that the tribunal found that the Government of Sri Lanka would gather information prior to an individual returning. Whilst here we note that the appellant has a valid passport and hence would not be required to go through the re-documentation process at the Sri Lankan High Commission in the UK, such evidence in respect of her conduct in the UK would still be gathered.
35. We find that, following on from the reasoning and finding in KK and RS as to risk factors that the Government of Sri Lanka would be concerned, displaying insignia of the LTTE or supporting Tamil Eelam contravenes the PTA and is therefore would be seen by the Government of Sri Lanka as being supportive of the resurgence of the LTEE and/or posing a risk to the territorial integrity of Sri Lanka. The country information confirms that the Government of Sri Lanka associate bearing flags as supporting terrorism and that they arrest and detain individuals who do so (see for example the Tamil guardian dated the 30th of November 2023 at C182 recording the arrest and detention of at least 7 Tamils under the PTA as a part of a crackdown on Maaveerar Naal remembrance). Those arrested carried yellow and red flags or speakers. Given the attempts of the Government of Sri Lanka to identify those in the Tamil diaspora who support Tamil separatism, the wearing of LTTE insignia heightens the risk of identification. In KK and RS the tribunal held (Headnote 8):
(8) GoSL continues to operate an extensive intelligence-gathering regime in the United Kingdom which utilises information acquired through the infiltration of diaspora organisations, the photographing and videoing of demonstrations, and the monitoring of the Internet and unencrypted social media. At the initial stage of monitoring and information gathering, it is reasonably likely that the Sri Lankan authorities will wish to gather more rather than less information on organisations in which there is an adverse interest and individuals connected thereto. Information gathering has, so far as possible, kept pace with developments in communication technology.
36. We note the Tribunal found that dissemination of information from technological means has increased since GJ and kept pace with developments in communication technology (paragraph 406). Information that is gathered in the UK through the methods identified in Headnote 8 will be passed to a Defence Attache at the Sri Lankan High Commission who applies basic non-rigorous filtration process (paragraph 420). The information is then stored on a person’s record (paragraph 424) in a single comprehensive database on which all information is stored on sur place activities, links (known or suspected) to the LTTE through the individual or their family and any detention history (paragraph 426). At the point of return there are 4 categories of person (paragraph 503):
“Our analysis of diaspora activities, GoSL’s information-gathering capabilities, its assessment and recording of an individual’s profile on the electronic database, and the judgment as to who would be perceived to constitute a threat, come together to produce four separate categories of returnees: (a) those of whom nothing material is known at all and who therefore do not appear on the general electronic database; (b) those who have an entry on that database, but do not appear on either the stop list or the watch list; (c) those who appear on the stop list; and (d) those who appear on the watch list”.
37. Given the nature of the events that the appellant has been involved with, as found above, there is a real risk that she would have been identified through the Government of Sri Lanka's rigorous monitoring of such events. She is likely to be stopped and detained at the airport as a result or allowed to return to her home area and risk being detained at that point. In light of her attendance in the UK at the high profile apex events organised in the UK by the proscribed TGTE which are monitored by the Government of Sri Lanka, and given the sophisticated intelligence available to the Sri Lankan government, whether or not that includes facial recognition technology, we find that there is likely to be a photographic record of the Appellant’s attendance at these commemorative events and that this will be on file with the authorities in Sri Lanka, identifying her as an LTTE supporter and as a person who has acted in breach of the PTA and committed an offence by wearing the Tamil Eelam scarf and/or holding the flag. That in turn risks that profile marking her out as of being of sufficient interest to the authorities to warrant detention. This does not mean that she will be detained but that there is a real risk that cannot be discounted as fanciful. Whilst we note that in addition there is a real risk that she may be monitored in her home area or wherever she settles in Sri Lanka on return, this cannot serve to undermine the primary risk to her of detention at the point of return or in her home area for the reasons we give.
38. In those circumstances, and as invited we need not go on to determine the non-protection-related Article 8 claim. We accept the facts and evidence that we heard from the appellant and her witnesses and indeed they were not challenged by the Secretary of State. We note and find that there is an established committed family life between the appellant and her two adult children and four minor grand-children.
Decision
39. The decision of the First-tier Tribunal involved the making of an error of law and is set aside to be remade in the Upper Tribunal.
40. The appeal is allowed on asylum grounds and Article 3 ECHR human rights grounds.

Signed: S Naik KC

Deputy Upper Tribunal Judge Naik KC

2 July 2025