Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005827

First-tier Tribunal No: PA/51041/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 25th of April 2025

Before

UPPER TRIBUNAL JUDGE KEITH

Between

‘RP’ (Sri Lanka)
(ANONYMITY ORDER MADE)
Appellant
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Ms E Daykin, instructed by ABN Solicitors
For the Respondent: Mr E Tufan, Senior Home Office Presenting Officer

Heard at Field House on 8 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. The reason is that the appeal relates to a claimed fear of persecution.

DECISION AND REASONS

1. These written reasons reflect the full oral reasons which I gave to the parties at the end of the hearing.

2. The appellant appeals against a decision of the First-tier Tribunal (FtT) dated 11 October 2024 to dismiss his appeal against the respondent’s decision on 31 January 2023 to refuse his human rights and protection claims. He is a Sri Lankan national who claims to fear persecution because of his support for the ‘Tamil Tigers’ when he was in Sri Lanka, and now in the UK as a result of what is commonly referred to as ‘sur place’ activities.

3. The scope the appeals is narrow. There are many findings made by the FtT against which there is no appeal. At §§24 to 33, the FtT rejected the appellant’s account of adverse interest in Sri Lanka between 2006 and 2009. It is unnecessary to repeat the allegations or rejections of them. The appellant last entered the UK on a student visa in 2010. He did not claim asylum until 2019. The FtT then went on to consider the appellant’s sur place activities in the UK, at §34 onwards. The FtT accepted that he had joined a Tamil opposition organisation based in the UK in 2023 and had attended protests and demonstrations in the UK in May 2024 to August 2024, with some activities from March 2023. The FtT rejected the appellant’s claim to have attended demonstrations since 2013. The FtT found that the appellant’s membership and attendance at demonstrations were ‘solely designed to bolster an otherwise weak asylum claim’ (§41). There is no appeal against these findings.

4. Instead, the appellant appeals against the FtT’s conclusions as to whether the appellant’s fears were well-founded, even if he had contrived attendance and membership (which might, in principle, still present such a risk – see: Danian v SSHD [1999] INLR 533).

5. The FtT concluded not. It referred itself to the Country Guidance case of KK and RS (Sur place activities: risk) Sri Lanka CG [2021] UKUT 0130 (IAC), at §§12(b), 37, 39, 40 and 42 of its judgment. As is evident, the FtT reminded itself repeatedly of KK & RS, when applying it, and concluded that while the Sri Lankan government might come to know of the appellant’s membership of an oppositional organisation and limited attendance at demonstrations in the UK, given that there was no evidence of his involvement with fundraising, political lobbying or writing or social media activity, he would not be perceived as having undertaken a ‘significant role.’ Instead, his sporadic, contrived activities might see him put on a ‘watch’ list, on his return, which did not amount to persecution (§42), applying headnote 19(ii) of KK & RS.

The appellant’s appeal

6. The appellant says that whether or not the appellant’s activities were contrived was not ‘determinative of risk’. By way of example, he had waved an LTTE flag outside the Sri Lankan High Commission, which was precisely the sort of activity likely to lead to risk. Permission was initially refused, but renewed permission was granted on 29 January 2025.

The respondent’s reply

7. The respondent filed a reply under Rule 24 on 24 February 2025 opposing the appeal. The respondent argues that the grounds of appeal in essence amount to a disagreement with the FtT’s assessment of the facts and evidence presented in the case. The FtT had specifically considered the nature of the appellant’s sur place activities including both the length of time that the appellant had been involved in such activities at §36 and §38 and the type of engagement at §§40 and §42. The FtT’s findings were based on the detailed and balanced consideration of the evidence. The FtT was also aware that the appellant’s representative had argued that membership of the TGTE was determinative of risk at §41. However, the FtT correctly made a finding at §42 that the appellant would fall into the second subcategory of returnees referred to the in headnote of KK and RS, which drew a distinction between those likely to be detained and those who would be monitored. In light of those findings, it was clear that the FtT was of the view that the appellant would not continue to engage in such activities once he returned to Sri Lanka, which was the sole relevance of the finding about his insincere motivation (under Danian). Consequently there had been no material error of law.

The appellant’s submissions

8. In clear and helpful submissions, Ms Daykin set out a number of principles which ultimately amounted either on the one hand to a failure to place appropriate weight on evidence, or on the other, in reality, a perversity challenge. The FtT had erred by focussing on factors which were not present, for example fundraising and social media activity as counting against the factors that clearly presented a risk. The starting point ought to have been that the appellant was a card-carrying member of the TGTE. That was a prescribed organisation in Sri Lanka, which was born out of the LTTE (the ‘Tamil Tigers’) and against which the Sri Lankan government had particular hostility - see §375 to §387 of KK and RS. Also, of particular relevance were the appellant’s demonstration at ‘Heroes’ Days’ and photographs of him waving the LTTE flag in the UK. The nature of the events, even if relatively few in number, nevertheless remained relevant if they were of such prominence (see §476 to §482 and §487). Ms Daykin also reiterated, as was clear at §494 of KK and RS, that the applicant’s motivation was not relevant even if that were not a particularly attractive proposition. Put simply, someone could, based on the findings here, gain membership and attend demonstrations to wave flags merely to create a risk to themselves and given the Sri Lankan government’s antipathy to the TGTE, that could potentially be significant enough to create an actual risk. What the FtT needed to have done was consider the variety of factors in an holistic assessment (as per §492 of KK and RS). Instead, what the FtT had done was to minimise the appellant’s membership and attendance at demonstrations because of the absence of other relevant factors. Ms Daykin did, however accept, that TGTE membership was not determinative of risk, as might have been suggested by Mr Paramjorthy before the FtT.

The respondent’s submissions

9. Mr Tufan pointed to the high hurdle for an irrationality challenge. There was, on the one hand, nothing that the FtT had failed to consider. On the other, the FtT had considered precisely and clearly the nature of the appellant’s activities and was entitled to consider motivation in the event of the appellant’s return. Much of what had been outlined by Ms Daykin was reflected in headnotes 20 and 21 of KK and RS, in particular the nature of activities and the significant role played. True it was, as Ms Daykin had pointed out, that the significance of a role did not require formality in that role, but here the FtT could not be criticised for specifically considering the lack of significance. Unless a perversity challenge were successful, as Ms Daykin accepted, the weight attached to particular factors was a matter for the FtT and did not disclose an error of law. The FtT had merely applied KK and RS and there was nothing else that he ought properly to have done.

Discussion and conclusions

10. I bear in mid that particular phrases should not be considered in isolation and the FtT made an assessment of risk with the benefit of all of the evidence before them, in a way I cannot. There is no question that the FtT considered the case of KK and RS in detail and as already set out, not only referred to it but applied it at a number of points in the judgment. The judgment itself was clearly structured. In §42, the FtT acknowledged that although the appellant’s activities were contrived, he accepted Mr Paramjorthy’s submission that this mattered not to potential perceptions of the Sri Lankan government of the appellant’s activities. The question here, bearing in mind the clear application of KK and RS was whether the weight placed by the FtT on the lack of significance of the appellant’s role was perverse, and by reference to the beginning of §42 of the judgment, the FtT erred in reducing the weight of the fact of TGTE membership and protests and photographs of the same because of the absence of factors such as organising, fundraising, political writing or lobbying. I do not accept that the FtT’s decision was perverse. The weight attached to various factors was a matter for the FtT. The FtT was clearly conscious that the TGTE was a prescribed organisation referring to that expressly at §40. The FtT was also clearly aware of the appellant’s standing near flags and banners, holding what appeared to be TGTE insignia and LTTE emblem. Nevertheless, the FtT was entitled, on a holistic assessment of the evidence, to consider all of that in the context of assessing whether the appellant would be perceived as having undertaken a significant role. There was no error in requiring some sort of formal role. Instead, the FtT was entitled to consider sporadic attendance at a handful of recent demonstrations, even though those may have attracted significant attention from the Sri Lankan authorities. The FtT did not err by discounting elements of risk. It assessed all of the risk factors in the round.

Notice of Decision

11. In the circumstances, I conclude that the FtT did not err in its assessment on the basis of irrationality. The FtT reached its decision in a clearly structured set of findings, by reference to the relevant Country Guidance, which was central to the FtT’s analysis.

12. Accordingly, the appellant’s appeal fails and is dismissed.

J Keith

Judge of the Upper Tribunal
Immigration and Asylum Chamber

15 April 2025