UI-2024-005823

• Status of case: Unreported
• Hearing date: 10 Jun 2025
• Promulgation date: 20 Jun 2025
• Publication date: 7 Jul 2025
• Last updated on: 7 Jul 2025

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005823

First-tier Tribunal No: PA/52490/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 20th of June 2025

Before

UPPER TRIBUNAL JUDGE OWENS
DEPUTY UPPER TRIBUNAL JUDGE CLARKE

Between

MZ
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Appiah of Counsel, instructed by Inayat Solicitors.
For the Respondent: Mr Hulme, Senior Home Office Presenting Officer.

Interpreter: Tamil.

Heard at Field House on 10 June 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellant and any member of his family are 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 or any member of his family. Failure to comply with this order could amount to a contempt of court. This order is made on account of the fact that the appellant’s claim is for international protection.

DECISION AND REASONS
SUMMARY
1. The issue before the Upper Tribunal in this case is whether the appellant would be at risk of persecution on account of his sur place activities. For the reasons which follow, we conclude that he would be at risk of persecution and allow his appeal under the Refugee Convention.
INTRODUCTION
2. The Appellant appeals against the Respondent’s decision (“RFRL”) dated 15 January 2024 refusing his further submissions dated 11 September 2023. As such, ss. 30-39 of the Nationality and Borders Act 2022 (“the 2022 Act”) apply.
3. In an error of law decision dated 24 April 2025, Upper Tribunal Judge Owens and Deputy Upper Tribunal Judge Clarke set aside the decision of First-tier Tribunal Judge Norris dated 9 October 2024, dismissing the Appellant’s appeal. The Appellant’s appeal now comes before us to be remade pursuant to s.12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007.
ERROR OF LAW DECISION
4. In an error of law decision dated 24 April 2025, as annexed to this Decision, we set aside the Decision of Judge Norris, on account of the First-tier Tribunal’s failure to correctly apply KK and RS (Sur place activities: risk) Sri Lanka CG [2021] UKUT 00130 (IAC), whilst also preserving all findings of fact.
DECISION OF FIRST-TIER TRIBUNAL JUDGE NORRIS: PRESERVED FINDINGS
5. Before Judge Norris, it was agreed at [25] that the Appellant singularly relied upon his sur place activities, which involved TGTE membership. That position remains unchanged before us.
6. In the light of the error of law found, in summary, we set out the following salient preserved findings of fact of First-tier Tribunal Judge Norris, as he found on 9 October 2024,
At [26] the Appellant has attended in the region of 14 protests or demonstrations as well as leafletting over a period of 2.5 years, since 2022.
At [30] the Appellant does not have a “significant role” in the TGTE.
At [31] the Appellant’s support for Tamil Eelam has been through peaceful and political means.
• The Appellant held TGTE banners at these demonstrations on more than one occasion.
• The Appellant has not engaged in separatist activities in Sri Lanka.
• The Appellant has no social media profile.
• The Appellant has no familial connections to separatists.
At [32] the Appellant does not genuinely support the aims or objectives of the TGTE.
At [38] the Sri Lankan authorities have not visited the Appellant’s parent’s home as claimed.
DOCUMENTS AND SUBMISSIONS
7. At the outset of the hearing, we ensured that the Appellant and the Tamil interpreter understood each other before explaining the proceedings. We then ensured that the parties had before them a stitched hearing bundle (“SB”) comprising of 337 pages.
8. In the light of the medical evidence before us and the preserved findings of Judge Norris - that the Appellant had been diagnosed with a recurrent depressive disorder and PTSD - we agreed to treat the Appellant as a vulnerable witness. In this regard, Ms Appiah invited us to ensure that cross-examination was brief, and the questions put in a simple manner.
ISSUES
9. Upon discussions with the parties, it was agreed that the following issues remained in dispute,
i) On balance, does the Appellant “in fact fear” persecution (s.32(2)(b) NABA 2022).
ii) Is it reasonably likely that there is a risk of persecution for the claimed Convention reason (s.32(4)(a) NABA 2022).
iii) In the alternative, is the Appellant at risk of treatment contrary to Article 3 ECHR on return to the lower standard of proof.
iv) Is the Appellant entitled to Humanitarian Protection to the lower standard of proof.
v) Article 8 private life.
10. Upon hearing submissions from Mr Hulme and Ms Appiah, we indicated that we would reserve our Decision and provide that in writing with our reasons. We now set our reasoning and Decision as follows.
THE LAW
11. Before outlining the oral evidence and the parties' competing legal submissions, we set out the essential legal framework for the issues arising in these proceedings.
The Refugee Convention
Article 1A(2) of the 1951 Convention Relating to the Status of Refugees defines a "refugee" as any person who:
"…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it."
MAH (Egypt) [2023] EWCA Civ 216 at [49]
“[…..] The requirement that an applicant's fear of persecution should be well-founded means that there has to be demonstrated "a reasonable degree of likelihood" that he will be persecuted for a Convention reason if returned to his own country: see R v Secretary of State for the Home Department, ex parte Sivakumaran [1988] AC 958, at 994 (Lord Keith of Kinkel).”
Article 3 of the ECHR provides:
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
Vilvarajah v UK (1992) 14 EHRR 248 at [103]
"[…..] expulsion by a Contracting State of an asylum seeker may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned faced a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the country to which he was returned".
DISCUSSION
Issue (i): On balance, does the Appellant “in fact fear” persecution (s.32(2)(b) NABA 2022).
12. Whilst Mr Hulme confirmed that the SSHD’s position was that the Appellant’s subjective fear remained in dispute, we see no merit in this submission. This is not a case in which the Appellant relies upon the credibility of past persecution to inform a decision on risk on return. Whilst there is a preserved finding that the Appellant undertook his sur place activities in bad faith, as found in our error of law decision, this does not preclude the Appellant from succeeding under s.32(2)(b). In this case there are preserved findings that the Appellant has taken part in 14 protests or demonstrations over a period of 2.5 years, during which he held TGTE banners, and findings that he has undertaken leafletting.
13. We note that the SSHD has at no point disputed the Appellant’s claim to be a member of the TGTE and Mr Hulme did not seek to persuade us that the Appellant was not a member of the TGTE. We therefore find in the absence of any challenge, that the Appellant has been a member of the TGTE since October 2021, as confirmed in his TGTE membership card at SB [104].
14. Since Judge Norris’s Decision in October 2024, the Appellant has submitted further evidence of his sur place activities. This includes photographic evidence at SB [49] – [52], of the Appellant prominently holding a Tamil Eelam self-determination banner at a demonstration in Parliament Square in February 2025; photographic evidence at SB [63] – [69], of the Appellant prominently holding an LTTE flag and Tamil Eelam self-determination banner at a demonstration in front of Downing Street in April 2025; and photographic evidence at SB [58] – [62], of the Appellant prominently holding an LTTE flag and Tamil Eelam self-determination banner at a Tamil genocide protest in May 2025.
15. In addition, the Appellant has produced a local “Rayners Lane” newspaper article and a series of photographs at SB [43] – [47], evidencing his support for Dr Yogalingam, whom the Appellant confirmed in his oral evidence was standing as his local LibDem candidate. We note that Dr. Yogalingam gave evidence before Judge Norris and that Judge Norris identified Dr. Yogalingam at [9] as the “former member of Parliament for the TGTE”. Dr Yogalingam has also provided several letters, which were previously considered by Judge Norris, identifying Dr Yogalingam as the “Director of Movement for Self-Determination of Tamil Eelam”. In oral evidence the Appellant stated that Dr Yogalingam would use his political platform in the UK on behalf of Tamils in the future.
16. Mr Hulme did not suggest to us that any of the new sur place evidence was fake, that the Appellant had not taken part in these events or that he was not associated with Dr Yogalingam as claimed. We therefore accept the Appellant’s new sur place evidence and claimed association with Dr Yogalingam.
17. In submissions Mr Hulme conceded that the Appellant’s sur place activities will have come to the attention of the Sri Lankan authorities, in the light of the KK and RS guidance at [8], confirming the GOSL’s extensive intelligence-gathering in the United Kingdom. This concession marks a significant departure from the case advanced by the SSHD before Judge Norris. We find that this concession was appropriately made.
18. The question is therefore how the Sri Lankan authorities will perceive the Appellant’s profile and commitment to the separatist cause and how they will treat him on return in the light of that perception.
19. We find it self-evident from the guidance in KK and RS, and it was not disputed before us, that if the Appellant’s role is perceived as “significant” it is reasonably likely that the Appellant will be detained in his home area on account of his imputed political opinion and that such detention will result in treatment contrary to Article 3 ECHR. We therefore find on balance that the Appellant is in fact afraid of persecution on return because he has no way of knowing what view the Sri Lankan authorities will have formed in relation to his sur place activities.
Issue (ii): Is it reasonably likely that there is a risk of persecution for the claimed Convention reason (s.32(4)(a) NABA 2022).
20. The assessment of risk on return in this case turns upon the application of the KK and RS guidance to the preserved findings of fact and our findings of facts in relation to the new sur place evidence.
21. First, we find that the Sri Lankan authorities will not distinguish between the Appellant’s peaceful participation in separatist sur place activities and activities pursued through violent means, as confirmed at headnote guidance [2].
22. Second, we find that the Appellant’s TGTE membership and sur place activities on behalf of the TGTE are a significant risk factor as confirmed in guidance note [5]. This is because the TGTE is a proscribed separatist organisation which is considered a front for the LTTE by the GOSL (guidance note [6]); albeit that this is not determinative of the Appellant’s risk on return. The consequence of this is that there will be a higher degree of adverse interest in the Appellant as an associate of the TGTE.
23. Third, it was conceded by Mr Hulme for the SSHD that the Appellant’s sur place activities will already be known to the GOSL in the light of their extensive intelligence gathering, as set out at guidance note [8].
24. Fourth, Judge Norris at [40] confirmed that the Appellant left Sri Lanka legally on his own passport. In oral evidence we asked the Appellant whether he had ever renewed the Sri Lankan passport that he entered the UK on in April 2012. In reply he confirmed that he had not renewed his passport and that Sri Lankan passports are valid for 10 years. This evidence was not disputed by Mr Hulme.
25. We find that the Appellant will therefore be returned on a Temporary Travel Document (“TTD”) and in line with headnote guidance [9] - [11], the Appellant will be interviewed at the Sri Lankan High Commission in London, where the authorities will gather information about the amount of TGTE demonstrations and events that the Appellant has taken part in; the nature of these events; the Appellant’s role; whether he held flags or banners displaying the LTTE emblem; and whether the Appellant has undertaken promotional leafletting. This is in addition to the intelligence that they have already gathered, as conceded by Mr Hulme.
26. Further to our findings in relation to the new sur place evidence as considered above, when we reviewed the photographic evidence of the Appellant’s sur place demonstrations as before Judge Norris at SB [89] – [137], it was quite clear to us that in almost all of these photographs the Appellant can be seen holding LTTE flags and anti-government banners whilst at demonstrations.
27. We therefore find that it is reasonably likely that the GOSL will be fully aware of the Appellant’s membership of the TGTE, his participation in 17 sur place demonstrations/ events, his leafletting and his association with Dr Yogalingam before he returns to Sri Lanka.
28. Fifth, we find that such information will be stored on the GOSL’s general database, which is accessible to the authorities anywhere in Sri Lanka, including at the airport on return, as confirmed at headnote guidance [13].
29. Sixth, as confirmed at headnote [15], the Appellant will be questioned on arrival at Bandaranaike International Airport, as the holder of a TTD. Whether the Appellant is questioned over and above the confirmation of his identity will turn on whether the Appellant is on a stop or watch list.
30. There is no evidence of a warrant or court order before us to suggest that the Appellant is on a stop list.
31. In submissions Mr Hulme sought to persuade us that the Appellant fell within the second category of watch list at headnote [19], that is “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”. As confirmed at headnote [22] this monitoring will not amount to persecution and because the Appellant has no genuine political opinion, it follows that the Appellant would return to his home area where he would be watched for a while and then left alone.
32. Ms Appiah argued that the Appellant would fall within the first category of watch list at [19], that is “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”. In this regard headnote [27] confirms detention would amount to “persecutory treatment within the meaning of the Refugee Convention and ill-treatment contrary to Article 3 ECHR.”
33. In assessing whether the Appellant falls within category 1, as argued by Ms Appiah, headnotes [20] and [21] confirm that,
“[…..] 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.
(21) 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.
34. Whilst we note that Judge Norris found that the Appellant did not have a “significant role”, we note that that finding was predicated upon the extent of the sur place evidence before him at that time.
35. Bearing in mind the lower standard of proof, and the headnote guidance that an individual need not have had a formal position in the TGTE or have taken part in high profile or prominent activities, we find that it is reasonably likely that the GoSL will perceive the Appellant as a threat to the integrity of the Sri Lankan state by reason of his committed activism; given the intelligence that the GOSL will have gathered before his return.
36. In this regard we are mindful that his sur place activities have now taken place over 3.5 years; he is a member of the TGTE; he has attended at least 18 demonstrations/events; he is seen throughout the documentary evidence holding LTTE flags, separatist slogans and anti-government banners; he has been involved in raising awareness through leafletting; and he has actively supported Dr Yogalingham’s political campaign in the UK.
37. We therefore find that the Appellant will be perceived as having a “significant role” by the GOSL. We do not find it reasonably likely that the GOSL will believe that the Appellant’s participation was not genuinely motivated, given its consistency.
38. Whilst we note that indicators v. and vi. do not apply to the Appellant in the light of the preserved findings of Judge Norris, we note that this is a non-exhaustive list of indicators and not a prescriptive list of requirements.
39. In the light of these findings, we find that the Appellant falls within watch list category (i) and therefore it is reasonably likely that the Appellant will be detained in his home area on account of his political opinion; at which point there is a real risk that the Appellant will be subject to treatment contrary to Article 3 ECHR.
CONCLUSION
40. For the reasons above we find that removal of the Appellant would breach the UK’s obligations under the Refugee Convention.

NOTICE OF DECISION
The appeal is allowed on Refugee Convention grounds.


D. Clarke

Judge of the Upper Tribunal
Immigration and Asylum Chamber

13 June 2025




IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005823

First-tier Tribunal No: PA/52490/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

UPPER TRIBUNAL JUDGE OWENS
DEPUTY UPPER TRIBUNAL JUDGE CLARKE

Between

MZ
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Appiah of Counsel, instructed by Inayat Solicitors.
For the Respondent: Ms Cunha, Senior Home Office Presenting Officer.

Heard at Field House on 7 April 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellant and any member of his family are 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 or any member of his family. Failure to comply with this order could amount to a contempt of court. This order is made on account of the fact that the appellant’s claim is for international protection.

DECISION AND REASONS

INTRODUCTION
1. The Appellant, a Sri Lankan national, appeals against the decision of First-Tier Tribunal Judge Norris, promulgated on 9 October 2024 (“the Decision”), dismissing the Appellant’s appeal against the Respondent’s decision dated 15 January 2024, refusing his further submissions dated 11 September 2023.
BACKGROUND
2. The Appellant entered the UK on 5 April 2012 on a student visa, which was valid until 26 August 2013. On 8 August 2013 the Appellant applied to extend his student visa, which was refused.
3. On 14 October 2019 the Appellant was served with an ILLEN 101 decision and on 3 October 2019 the Appellant claimed asylum, which was refused on 20 February 2020. The Appellant appealed the decision of 20 February 2020 and in a decision dated 22 December 2020 the Appellant’s appeal was dismissed by First-tier Tribunal Judge Rae-Reeves.
4. Before FTIJ Rae-Reeves the Appellant claimed that he had been arrested, detained and tortured by the Sri Lankan Police following a raid on his father’s store where weapons had been found. The Appellant said that he was only released because of the intervention of his father’s politician friend. The FTIJ dismissed the appellant’s claim as inconsistent and implausible and found that the Appellant had never been involved with the LTTE. However, the FTIJ accepted that the Appellant had mental health issues and suffered from PTSD.
5. The Appellant appealed to the Upper Tribunal and his appeal was dismissed by Upper Tribunal Judge Pickup on 14 September 2021. In dismissing the Appellant’s appeal, the UTJ found that the FTT’s overall findings as to the Appellant’s inconsistencies, discrepancies, implausibility and lack of credibility were not undermined by any failure to consider that the Appellant had left Sri Lanka on his own passport by bribing officials. Even if that was wrong, the UTJ said, the Appellant would not be of any interest to the authorities given what was said in the CPIN about the current position in Sri Lanka, the passage of time, and the fact that the Appellant has never been associated with the separatist movement.
6. The Appellant became ARE on 28 September 2021.
7. The Appellant lodged further submission on 6 March 2023, which were withdrawn as his appointment was cancelled. The Appellant then lodged further submission on 19 May 2023, which were withdrawn as the application was not registered. The Appellant again lodged further submission on 6 September 2023, which were withdrawn as the application was not registered.
8. On 11 September the Appellant lodged further submissions which were refused on 15 January 2024. This decision was the subject of the appeal before First-tier Tribunal Judge Norris, heard on 24 September 2024 and promulgated on 9 October 2024.
DECISION OF FIRST-TIER TRIBUNAL JUDGE NORRIS
9. Before Judge Norris, it was agreed at [25] that the Appellant singularly relied upon his sur place activities, which involved TGTE membership.
10. In dismissing the Appellant’s appeal, for the purposes of the pleaded error of law grounds before us, FTIJ Norris made the following relevant findings under the heading of “Appeal on Asylum Grounds”:
[26] “Since the Appellant was appeal rights exhausted, taking into account the photographs in the bundle, he has attended in the region of 14 protests or demonstrations, as well as leafleting at the Tube station on an unknown date or dates. That is an average of just under five a year. On just one of those dates does he claim to have been a “co-ordinator”, and his responsibilities as such were minimal as described by him. He claimed that he was introduced to the TGTE in 2022, by a friend who did not give evidence. He could only recall delivering leaflets this year and could not recall the dates that he did so.”
[30] “I find that the Appellant has not had a “significant role” in the TGTE, the LTTE or Tamil separatism generally and there is no reliable evidence that the Appellant’s activities in the UK will have come to the attention of the Sri Lankan authorities. I note the CPIN says that such a role is not necessarily one where the participant holds a formal position or that his activities have been “high profile” or prominent”; the TGTE is an “avowedly separatist organisation which is currently proscribed”. Nonetheless, participation in TGTE activities is not determinative either way of risk.”
[31]. I find that the Appellant:
(a) Has claimed only to support Tamil Eelam through peaceful and political means (as specifically set out in his witness statement);
(b) Has been inconsistent in the date that he joined the TGTE, despite purporting to hold a membership card;
(c) Has undertaken very few activities in the long period that he has lived in the UK and only in what appears, based on the evidence in the bundle, to be on limited occasions and for a short period. The activities he has undertaken have not, I find, including “calling the play card” or slogans. At its highest, during protests he has held banners with the TGTE logo on them, on one or more occasions;
(d) By his admission, has never previously engaged in separatist activity in Sri Lanka;
(e) According to the evidence before the Tribunal, has no active social media profile (or none that would arouse suspicion); and
(f) Has no relevant familial connections to separatists.
[32] “[….] taking his evidence in the round I find that the Appellant has not shown on balance of probabilities that he holds the genuine political opinion claimed and thus that he does not fear persecution for that reason”.
11. FTIJ Norris then went on to make the following relevant findings under the heading of “Humanitarian Protection Grounds”:
[34] The FTIJ invokes KK and RS (Sur place activities: risk) Sri Lanka CG [2021] UKUT 00130 (IAC), and the guidance that, “the Sri Lankan authorities are considered reasonably likely to know information about whether an individual is associated in any way with a particular diaspora organisation, whether they have attended meetings or demonstrations and if so, approximately how frequently, the nature of the person’s involvement, including organisational and/or promotional roles, attendance at commemorative events, authorship of or appearance in articles, presence on social media and signing of petitions perceived as “anti-government”.
[35] “If anyone has met the Appellant and knows he has been in the UK since 2012, they will also know that he participated in no demonstrations at all for the first ten years he was here”. Whilst the Appellant claimed to have joined the TGTE in 2022 his membership card suggests he joined in 2021. “There was no suggestion that he had ever supported their aims or objectives previously.” This discrepancy and his connection to the cause damages his credibility.
[36] “[….] since KK & RS, the CPIN says there have been reduced opportunities for physical sur place activities and there is limited available evidence of the monitoring or treatment of those active on social media. The Appellant does not claim to have been active on social media at all and there is no evidence that he has been monitored or photographed by the authorities when attending any of the protests. Taking the evidence in the round, I find that the Sri Lankan authorities are not reasonably likely to perceive the Appellant as someone who has ever had a significant role within the LTTE (via the TGTE) and/or as somebody who is of significance in the fight for Tamil separatism.”
[37] “[…] the Appellant does not meet the risk factors of someone who has or will be perceived to have a significant role in relation to post-conflict Tamil separatism.” It is not reasonably likely that the Appellant will appear on a stop list. “[….] even if he was on a watch list, he would not be at risk, because any monitoring of him would reveal no activity on his part.”
[38] the FTIJ rejects that the Sri Lankan authorities have visited his parent’s home in Sril Lanka.
[39] “[….] he has not shown to the lower standard that the protests in which he participated (e.g. standing in a group outside the Oval prior to the start of a day’s play in the cricket) were infiltrated by spies or agents who were hostile to the cause or who might have reported him to the authorities”.
[40] “According to KK and RS and the Country Guidance case of GJ (Sri Lanka), the Appellant is therefore not reasonably likely to be detained. He left the country legally on his own passport and with a student visa for study abroad. There is no update to the CPIN which quotes a 2019 Sunday Times article regarding facial recognition at the Bandaranaike International Airport (BIA), but even if that has since come fully online, the Appellant’s facial features are not known to the authorities there and nor is there evidence that the BIA or other Sri Lankan airport is geared up in practical terms to matching the Appellant’s identification to the limited number of protests in which he has participated. Applying the test in BA and noting that there is no evidence that the regime will have the capacity to identify this Appellant on return, I find that he will be able to pass through the airport unhindered and return to his home area without being subject to any further action by the authorities.”
PERMISSION TO APPEAL
12. Following refusal of permission to appeal to the FTT, in grounds of appeal settled by Ms Appiah of Counsel, permission to appeal was granted without restriction by Upper Tribunal Judge Rastogi on 30 January 2025. In granting permission, the UTJ noted that the grounds were “a little difficult to follow” but said that they “appear to be challenging the judge’s treatment of risk on return with reference to the country guidance”. UTJ Rastogi then found:
“It is arguable the judge failed to follow or correctly apply the country guidance in KK and RS (sur place activities: risk) Sri Lanka [2021] UKUT 130 (IAC), particularly headnotes [5]-[13] in light of her findings about the appellant’s activities for the TGTE, a proscribed organisation. For the avoidance of doubt, such analysis does not require the appellant to have genuinely held views and there is no arguable basis to challenge the judge’s findings about that.”
GROUNDS OF APPEAL
13. The salient parts of the grounds of appeal are as follows:
“3. The findings of the Judge are from [22] where the Judge found:
i. Credibility remained an issue that was no satisfied by the evidence
ii. There was no Article 8 claim
4. The Judge erred in her consideration of the motive of A’s sur place activities. In her decision, it is stated:
29. There is thus no reliable objective evidence that the Tamil “struggle for Tamil Eelam” is the Appellant’s genuine belief, as opposed to an attempt to create a basis on which to remain in the UK once his previous claim had been rejected. I find that Dr Yogalingam’s evidence is both hearsay and, accordingly, self-serving on the Appellant’s part.
36. Further, I note that since KK & RS, the CPIN says there have been reduced opportunities for physical sur place activities and there is limited available evidence of the monitoring or treatment of those active on social media. The Appellant does not claim to have been active on social media at all and there is no evidence that he has been monitored or photographed by the authorities when attending any of the protests.
5. The Judge did not find A had not partaken in demonstrations and other events. The Judge found A’s profile was not one which meant he would be known to the GoSL.
6. In the CPIN, as relied upon by the Judge in her findings above [36], it is stated:
2.4.20 Since KK and RS was heard, there has been reduced opportunity for demonstration and physical sur place activities to take place in the UK due to the Covid-19 pandemic. Available evidence is limited, including on the monitoring or treatment of those active on social media during this time. However, the International Truth and Justice Project (ITJP) reported in September 2021 (based on 14 undated interviews with diaspora in the UK) examples of 2 people who did attend protests in London in 2021 who were photographed and in one instance, their family were contacted by the Terrorism Investigation Department (TID). It was also reported by ITJP that Tamil asylum seekers in the UK were called by Sri Lankan intelligence agents in Sri Lanka and asked to pass on passwords for private Zoom meetings.
7. The Judge erred where:
The CPIN was from 2022, referencing events from 2021 and prior, and the assessment of A from [when] he was a member was erroneous.
KK and RS are good law. The expert in that appeal was the same in this appeal. The profile of A in KK and RS was similar to A in this appeal.
The motives regarding why a person is involved in demonstrations and protests is an irrelevant consideration, where the 1951 Convention references both political and imputed political opinion. It is the likelihood the GoSL would perceive someone like A as a threat to it.”
14. There was no rule 24 reply from the Respondent.
15. The matter now comes before us to determine whether there is an error of law in the Decision of the Judge pursuant to s.12(1) of the Tribunal Courts and Enforcement Act 2007. If we find an error, we must then determine whether the error is material, such that the Decision should be set aside. If the Decision is set aside, we must decide whether to remake the decision in the Upper Tribunal or remit the appeal to the First-Tier Tribunal, pursuant to s.12(2) of the 2007 Act.
16. We had before us a stitched bundle comprising of 320 pages. Upon discussion with the parties, Ms Cunha confirmed that she did not have the stitched bundle but confirmed that she did have access to the relevant procedural documents and FTT bundles on the MyHMCTS portal. In this regard, we confirmed that we had also downloaded the FTT hearing bundle of 281 pages and the Appellant’s additional FTT bundle of 82 pages from the MyHMCTS portal. In the circumstances MS Cunha confirmed that she was content to proceed.
17. Upon hearing submissions from Ms Appiah and Ms Cunha, we indicated that we would reserve our decision and provide that in writing with our reasons. We now set our reasoning and decision as follows.
ORAL SUBMISSIONS
18. At the outset of the Appellant’s submissions, we invited Ms Appiah to clarify the grounds of appeal in the light of the “little difficult to follow” comment of Judge Rastogi in the grant of permission. In this regard, Ms Appiah made the following submissions:
i. KK makes clear at headnote [5] that the type of organisation is relevant, when considering the degree of adverse interest by the Sri Lankan government.
ii. KK makes clear at headnote [6] that the TGTE is proscribed, avowedly separatist and regarded as a front for the LTTE by the Sri Lankan government.
iii. The FTIJ erroneously focused on whether the Appellant’s commitment to the TGTE was genuine, rather than considering how the Appellant’s activities for the TGTE would be perceived.
iv. The FTIJ did not find that the Appellant had not taken part in sur place activities as claimed. The FTIJ’s assessment of adverse interest should have been made in the context of the sur place findings at [26], that is, that the Appellant had taken part in “14 protests or demonstrations, as well as leafleting at the Tube station on an unknown date or dates”.
v. Whilst the findings at [31] allude to the guidance in KK, the FTIJ does not apply the guidance. The finding at [31(a)], that the Appellant has only supported the TGTE through peaceful means, fails to have regard to headnote [2] of KK which confirms that the “GOSL draws no material distinction between on the one hand the avowedly violent means of the LTTE […….] and non-violent advocacy.
vi. The finding at [31(c)] that, “during protests he has held banners with the TGTE logo on them, on one or more occasions”, is a factor that the guidance at [10] confirms the GOSL is likely to be aware of. This is because the GOSL regard the TGTE as a front for the LTTE. The FTIJ effectively finds that A’s lack of commitment would be known to the GOSL.
vii. The SSHD accepts in her “CPIN Sri Lanka: Tamil Separatism, v.8 dated August 2022” (“the CPIN”) at [2.4.12], that there are no strong grounds and cogent evidence to warrant departure from KK. The findings of the FTIJ at [36] that “the CPIN says there have been reduced opportunities for physical sur place activities and there is limited available evidence of the monitoring or treatment of those active on social media”, fails to have regard to the fact this was in the context of Covid at [2.4.20].
19. In reply, Ms Cunha accepted that the KK guidance confirmed that the TGTE were regarded as a front for the LTTE and that the GOSL did not distinguish between violent and non-violent means of furthering the separatist movement. Ms Cunha further accepted that the FTT was “bound by the country guidance”. However, Ms Cunha argued that what the FTIJ did was to make findings on the limited nature and extent of the Appellant’s support for the TGTE and the FTIJ was therefore entitled to find that the Appellant would not have come to the attention of the Sri Lankan authorities.
DISCUSSION
20. We begin this discussion by looking at the structure of the FTT decision. Judge Norris correctly invoked NABA 2022 at [18] and at [19] and directs himself to the questions arising section 32(2); which requires, under s.32(2)(a), a consideration on balance of “whether the asylum seeker has a characteristic which could cause them to fear persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion”.
21. It appears to us that when addressing this question Judge Norris has misdirected himself. The findings on the asylum ground of appeal before him are self-contained within the findings at [22] – [33]. It is clear at [32] that the FTIJ rejects the Appellant’s asylum claim on the singular basis that, “the Appellant has not shown on balance of probabilities that he holds the genuine political opinion claimed and thus that he does not fear persecution for that reason”.
22. Having dismissed the asylum ground for reasons of non-genuine political opinion, the FTIJ then moves on to consider Humanitarian Protection.
23. We find that the FTIJ erred in this regard because s.32(2)(a) expressly recognises asylum claims predicated upon perception, i.e. “or has such a characteristic attributed to them by an actor of persecution” (s.32(2)(a)). The Statute is therefore consistent with Danian [1999] EWCA Civ 3000, which found that,
“[….] even if the applicant has created a claim to refugee status by resorting to opportunistic post-flight activities, it would not be right to deprive him of international protections and return him/her to his/her country of origin if it is established that the consequences of such return may result in persecution for one of the reasons enumerated in the 1951 Convention.”
24. Once this misdirection is recognised, it is evident that the findings at [31], rather than alluding to KK as suggested by Ms Appiah, are in fact findings specific to whether the Appellant holds a genuine political belief. It is clear to us that the FTIJ does not invoke KK until he goes on to consider Humanitarian Protection, because he was focused singularly upon the question of Convention reason and not risk in his “Appeal on Asylum Grounds” findings.
25. Notwithstanding this error, we find in any event that the FTIJ failed to apply KK to the facts of the Appellant’s case when considering Humanitarian Protection for the following reasons:
26. First, as argued by Ms Appiah, KK makes clear that the GOSL has a “core focus” on the resurgence of separatism (headnote [2]) and that the GOSL regards the proscribed TGTE as a front for the separatist LTTE movement (headnote [6]). It is for this reason that the GOSL has a higher degree of adverse interest in the TGTE and the “individuals known or perceived to be associated with it” (headnote [5]).
27. The means by which this adverse interest in separatist organisations and associated individuals is pursued, is set out at headnote [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”.
28. As argued by Ms Appiah, the FTIJ’s findings at [26] - that the Appellant “has attended in the region of 14 protests or demonstrations, as well as leafleting at the Tube station on an unknown date or dates. That is an average of just under five a year” - formed the relevant factual backdrop upon which this guidance on extensive intelligence gathering should have been considered.
29. As discussed with Ms Cunha at the hearing, the Appellant’s bundle at [32] - [48], contained numerous photographs of the Appellant at demonstrations and commemorative events. In many of these, the Appellant appears to be holding the LTTE flag, which is identified in the guidance at 10 [iii], as information the “GoSL is reasonably likely to have obtained”.
30. We therefore find that the FTIJ’s findings: at [30] that “there is no reliable evidence that the Appellant’s activities in the UK will have come to the attention of the Sri Lankan authorities”; at [36] that “there is no evidence that he has been monitored or photographed by the authorities when attending any of the protests”; or at [39] that “he has not shown to the lower standard that the protests in which he participated [……] were infiltrated by spies or agents”, is a failure to apply this guidance.
31. We further agree with Ms Appiah’s submission that the FTIJ’s reasoning at [36] does not amount to the required “strong grounds and cogent evidence” to depart from KK,
[36] “[….] since KK & RS, the CPIN says there have been reduced opportunities for physical sur place activities and there is limited available evidence of the monitoring or treatment of those active on social media”,
32. It is clear to us that this finding is directly drawn from the CPIN at [2.4.20], which states,
“Since KK and RS was heard, there has been reduced opportunity for demonstration and physical sur place activities to take place in the UK due to the Covid-19 pandemic. Available evidence is limited, including on the monitoring or treatment of those active on social media during this time.”
33. We find that the FTIJ failed to have regard to the date of the 2022 CPIN, the Covid Pandemic, the fact that the Appellant has in fact been involved in 14 demonstrations since 2022 or indeed that the SSHD herself conceded that there were no strong grounds or cogent evidence warranting departure from KK at [2.4.12].
34. We find that [2.4.20] cannot on any reading meet the required strong grounds and cogent evidence to depart from the KK headnote guidance at [8].
35. We find in any event, that it is wholly unclear what evidence the FTIJ expected the Appellant to produce of the GOSL’s monitoring of his activities.
CONCLUSION ON THE ERROR OF LAW
36. For our reasons above, we find that the decision of the First-tier Tribunal discloses material errors of law and must be set aside. We find that the errors were specific to the Judge’s application of the law and therefore the findings of fact should stand.
DISPOSAL
37. In discussions with the parties, it was agreed that this is a case which the Upper Tribunal could appropriately retain for remaking, given the absence of any challenge to the findings of fact. Whilst the Upper Tribunal bundle at Section B contained 13 pages of new evidence that was not before the FTT, Ms Appiah indicated that the Appellant wished to serve further updated objective materials and evidence of sur place activities. In the absence of Ms Cunha opposing this proposition, it was agreed that the remaking of the Appellant’s appeal should be adjourned to a later date.

NOTICE OF DECISION
1. The Decision of First-tier Tribunal Judge Norris dated 24 September 2024 involves the making of an error of law.
2. We set aside the Decision preserving all findings of fact.
3. The appeal is adjourned for re-making in the Upper Tribunal at Field House before Upper Tribunal Judge Owens on the first available date with a time estimate of 2 hours.
4. A Tamil interpreter is required.
5. The Appellant is at liberty to serve updated evidence contained in a single consolidated hearing bundle, no later than 14 days before the relisting of this appeal.


D. Clarke

Judge of the Upper Tribunal
Immigration and Asylum Chamber
24 April 2025