Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000270

First-tier Tribunal Nos: PA/56341/2024
LP/04236/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 23rd of April 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON

Between

KU
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms F Shaw, Counsel, instructed by York Solicitors
For the Respondent: Ms S Lecointe, Senior Home Office Presenting Officer

Heard at Field House on 25 March 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, [the appellant] (and/or any member of his family, expert, witness or other person the Tribunal considers should not be identified) 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 (and/or other person). Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
Introduction
1. The appellant is a citizen of Sri Lanka born on 28 April 1992. His protection and human rights claim, noted as made on 14 September 2022 by the respondent, but accepted by the judge as raised in December 2021, was refused by the respondent on 21 February 2024. His appeal against the decision was dismissed by First-tier Tribunal Head (“the judge”) on 16 November, after a hearing on 24 October 2024.
2. Permission to appeal was granted by Judge of the First-tier Tribunal Dainty on 20 January 2025 on one ground only, on the basis that it was arguable that the First-tier Judge had erred in placing weight on the mistaken fact that there was no evidence that the alleged attorney was in fact a lawyer. The matter came before me to determine whether the First-tier Tribunal had erred in law, and if so whether any such error was material and thus whether the decision should be set aside.
Submissions – Error of Law
3. In the grounds of appeal and in oral submissions by Ms Shaw it was argued in short summary for the appellant as follows.
4. The judge had incorrectly stated that “there is no corroborative evidence to demonstrate that Mr Punethanayagam is in fact a lawyer”. However, the judge had been referred to the country guidance case of GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319. Mr Punethanayagam’s status as a lawyer had been accepted by the Upper Tribunal in the country guidance case with his evidence considered to be “useful and reliable”. This evidence was referred to in both oral submissions and at paragraph 24 of the appellant’s appeal skeleton argument (ASA). It was submitted that the judge erred in making no mention of this objective evidence relating to the identity and status of Mr Punethanayagam as a genuine Sri Lankan lawyer and the judge did not appear to have given any consideration within her assessment to this evidence.
5. It was further submitted that the judge had erroneously dismissed Mr Punethanayagam’s letter, concluding that his letter was “based on what the appellant’s father has told him” and “not independent evidence in support of the appellant’s account”. Notwithstanding that Mr Punethanayagam was confirming what the appellant’s father had told him, it was submitted that this still had a corroborative value, particularly in circumstances where the appellant’s account of events in Sri Lanka had thus far been accepted by the judge. The judge had essentially dismissed the contents of Mr Punethanayagam’s letter and the accompanying letter from the appellant’s father on the grounds that they were self-serving. The Tribunal was referred to paragraphs 30 to 31 of the Upper Tribunal decision in R (on the application of SS) v Secretary of State for the Home Department (“self-serving” statements) [2017] UKUT 00164 (IAC). This concluded that some further reasoning was required for a self-serving designation and that such documents should be considered in the round.
6. It was submitted that the judge’s failure to consider the letter from Mr Punethanayagam in the round, was contrary to the principles established in the case of Tanveer Ahmed v Secretary of State for the Home Department [2002] UKIAT 00439 (“Tanveer Ahmed”). The judge had dismissed the corroborative weight of the evidence from Mr Punethanayagam in circumstances where the appellant’s account of events in Sri Lanka, including his two previous detentions in 2016 and 2018, had otherwise been accepted as credible. It was also accepted that the appellant had contacted the Home Office and made a claim for asylum in 2021, which the appellant has consistently maintained was when his problems arose and two years prior to the expiry of his leave to remain.
7. The appellant submitted that by asserting that the letter from Mr Punethanayagam: “frankly could have been prepared by anyone with access to a computer and a printer”, and then proceeding to attach no weight to it, was an error, particularly in circumstances where the judge had not considered the document in the context of the appellant’s wider claim and the positive credibility findings which had been made. Reliance was placed on Tanveer Ahmed in that “only very rarely will there be the need to make an allegation of forgery, or evidence strong enough to support it. The allegation should not be made without such evidence”.
8. Ms Shaw emphasised that the representative before the First-tier Tribunal had specifically referred to this lawyer being accepted in the country guidance case law of GJ as a lawyer and that the judge must be wrong in stating that no weight could be attached to the letter and that it could have been “written by anyone”. At paragraph 2 of the letter Mr Punethanayagam confirmed that the appellant’s son was arrested and tortured; Mr Punethanayagam mentions a friend of the appellant’s that was arrested and that his whereabouts remain unknown and also gives information in relation to the arrest of the appellant’s father. The letter confirms that the appellant’s father approached Mr Punethanayagam on 8 December 2021 which tallied with the appellant’s claim that all the difficulties arose at the start of December 2021, with the appellant’s father arrested on 4 December. The letter went on to state that individuals had been arrested under the terrorism act in Sri Lanka and detailed a number of incidents. It was submitted that there were significant factors in the letter which all clarified and added weight to the appellant’s claim about risk on return, particularly considered in light of the positive findings reached by the judge.
9. In particular Ms Shaw relied on [19], [22], [32], [33], [37], [49] and [56] of the judge’s decision, which she submitted were positive findings in favour of the appellant, including in relation to when the appellant claimed asylum, that Section 8 was not engaged, that the appellant had provided a consistent account of his 2016 arrest and that his reasonably detailed account of his 2018 arrest was likely to be true. The judge also accepted that the reference in the appellant’s screening interview to 2020 was an error and that in the interview it was recorded as 2021 which was consistent with the letter from the appellant’s lawyer. At [49] the judge noted in line with the country guidance of KK and RS (Sur place activities, risk) Sri Lanka CG [2021] UKUT 00130 (‘KK and RS’) that a significant role does not require a high profile and what matters is the nature and extent. It was submitted that Mr Punethanayagam was not a lawyer instructed at late notice just prior to the appeal with the letter obtained in December 2023 and the letter noted that the appellant’s father had approached Mr Punethanayagam on 8 December 2021.
10. Although no Rule 24 response was provided, in oral submissions by Ms Lecointe for the respondent it was argued in short summary as follows.
11. It was submitted that ground 2 amounted to no more than a disagreement and that it was reasonable in this case for the judge to consider whether the letter had actually come from the lawyer. Ms Lecointe noted that the letter did not actually state that he was the family lawyer, rather the letter stated he was relaying the appellant’s claim on behalf of the father, not that he was acting on behalf of the appellant. She submitted that it was within the remit of the judge to assess whether the lawyer had full knowledge of the appellant’s case. Whilst Ms Lecointe accepted that it had been identified at the First-tier Tribunal hearing on several occasions that this was the same lawyer that was considered by the Upper Tribunal in the country guidance case of GJ, she submitted the judge still had to consider whether the letter the appellant was relying on was from Mr Punethanayagam. Ms Lecointe submitted that he was described as a barrister in high standing in the country guidance case law but noted that the Upper Tribunal also indicated that ‘some of his evidence goes beyond what he can be taken to know himself’.
12. Ms Lecointe accepted that the judge did not specifically consider the submissions, which Ms Lecointe accepted were before the judge, that this was the lawyer referred to in GJ, save to say that anyone with a computer could have written this letter. Whilst she speculated that there may have been oral submissions she agreed that there was nothing in the respondent’s review and not in the judge’s findings. Ms Lecointe maintained that the judge had acted correctly in stating that little weight should be attached to the letter whether he mentioned Tanveer Ahmed or not and noted that weight was a matter for the judge. Ms Lecointe indicated that the letter went even so far as saying that he was aware that the appellant was receiving treatment.
13. Ms Lecointe conceded however, that the judge’s findings at [38] and [39] were problematic, describing them as ‘slightly flawed’. She maintained however that this would not affect the overall decision and there was no evidence that even if the judge had accepted the status of Mr Punethanayagam from the country guidance case law that she would have accepted that the letter before her had come from him. Whilst accepting there was an error she did not accept that it was material.
Conclusions – Error of Law
14. I take into account that the judge directed herself including at [24] where she indicated that she “considered the appellant’s credibility, and the plausibility of his account, in the context of relevant case law and other applicable country material”.
15. The judge considered the core of the appellant’s account from [35] onwards. This was following the judge making positive credibility findings in the appellant’s favour including that the appellant sought asylum as soon as reasonably practicable and that Section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (“the 2004 Act”) was not engaged. The judge further accepted that the appellant had initiated his asylum claim in December 2021. The judge considered the incident the appellant relied on in 2016 and rejected the respondent’s submission that the appellant’s account of the incident was incredible and accepted the appellant was arrested for not having his ID. However, the judge did not accept that this incident would cause the appellant risk on return, the judge characterising it as nothing more than a routine arrest as the appellant was unable to confirm his identity.
16. The judge went on to accept the appellant’s account of his arrest and beating in 2018 when he was running a restaurant in Colombo describing this account as reasonably detailed and whilst the medical evidence referred to a different date, the judge accepted to the lower standard that it was reasonably likely to be true. Again noting the lapse of three years before any further adverse interest the judge was not satisfied that either of those incidents had caused the appellant any ongoing difficulties.
17. The judge went on to consider the core of the appellant’s account which was that in early December 2021 his friend L was arrested. The appellant was in the UK at that time. His friend was detained by the Sri Lankan authorities and photographs were found on his phone linking the appellant to him, with L accused of assisting Tamil “Heroes” and with the authorities having subsequently shown an adverse interest in the appellant due to his connection with L.
18. The judge considered at paragraph [36] consider the respondent’s concern that the appellant stated he was accused of supporting the LTTE in December 2020. However thee appellant’s witness statement notes that the claimed events of his friend and his father being arrested were in December 2021 which led to the appellant claiming asylum The judge accepted at paragraph [37] that the reference in the screening interview to 2020 was an error.
19. The judge however, also considered, at [36] and [37], that there was no mention in the appellant’s screening interview of the arrest of his friend L or of his father. Whilst the judge accepted that the screening interview is a brief summary of the claim, the judge found that the absence of any reference to why the appellant claimed he was forced to claim asylum in December 2021, to be significant, particularly in the context of the appellant being interviewed in person with the benefit of a Tamil interpreter.
20. In terms of the judge’s findings in relation to the letter from Mr Punethanayagam, the judge referred to Mr Punethanayagam as “the appellant’s father’s claimed lawyer”. The first findings that the judge made at paragraph [38], were that the letter was based on what the appellant’s father had told him, and that that there was no corroborative evidence to demonstrate that Mr Punethanayagam is in fact a lawyer:
“... and I note that the entirety of his letter is based on what the appellant’s father has told him, it is not independent evidence in support of the appellant’s account. I have doubts about the weight I can place upon this document, it frankly could have been prepared by anyone with access to a computer and a printer and I find it does not assist his case. Having had the opportunity to consider the evidence provided, I do not find that the letter from the appellant’s father or Mr Punethanayagam assist the appellant’s claim to be at risk on return.
Whilst I understand that there is no strict need for any documentary or indeed, any corroborative evidence in a claim for international protection, in an appeal such as this, that being said, what I find centrally failing in this case, is the absence of any independent evidence to show Mr Punethanayagam is indeed a lawyer and any evidence from the appellant’s UK based brother. I have considered this absence in line with TK (Burundi) v SSHD (2009) EWCA Civ 40 and note, that where there are circumstances in which evidence corroborating the appellant’s evidence was easily obtainable, the lack of such evidence must affect the assessment of the appellant’s credibility”.
21. It is evident from the judge’s findings that the absence of independent evidence to show Mr Punethanayagam was indeed a lawyer was viewed by the judge to be a central failing in the case, together with the lack of evidence from his brother in the UK.
22. Whilst the essence of Ms Lecointe’s submissions were essentially that whilst it was accepted that the judge was in error in not having considered that there was evidence before her that this was the lawyer referred to by the Upper Tribunal in GJ, this error was not material, I do not agree.
23. I take into account that the judge did make findings that the letter did not contain any independent evidence in support of the appellant’s account and was essentially a repetition of what the appellant’s father had told him. Notwithstanding that this does not address the point made on the appellant’s behalf that such is still potentially of corroborative value, the thrust of the judge’s findings in relation to the lawyer’s letter were in relation to the perceived failure of any evidence to support the claim that Mr Punethanayagam was indeed a lawyer with the judge restating this at [38] and [39]. Indeed, if the judge had ended his findings in relation to Mr Punethanayagam at [38] the error arguably may not have been material.
24. However, such is the weight that the judge erroneously placed on the absence of such evidence, when such evidence was essentially before the judge, is an error.
25. I set aside the judge’s decision. Having heard submissions from both parties it was agreed by both parties that the decision could be re-made by me in the Upper Tribunal on the basis of submissions before me and that no further oral evidence was required. There was no application made for any further evidence to be considered by the Upper Tribunal. The findings of the First-tier Tribunal Judge are preserved other than paragraphs [38], [39] (in relation to Mr Punethanayagam although I preserve the findings in relation to the absence of any evidence from the appellant’s brother), [51], [52] and [53].
Re-making the Decision
26. I heard submissions from both representatives on re-making the decision. Ms Lecointe submitted that in relation to the comments about Mr Punethanayagam in GJ, she again referred me to paragraph 275 where it was stated that the Tribunal did not have the opportunity of hearing Mr Punethanayagam give oral evidence and that some of his evidence goes beyond what he can be taken to know himself]. Ms Lecointe’s submission was that some of Mr Punethanayagam’s evidence before the Upper Tribunal was said to go beyond what Mr Punethanayagam knew himself. At paragraph 12 of the decision in GJ, Ms Lecointe noted that Mr Anton was described as someone who represented about 3,000 people and detailed his qualifications. She submitted that the stamp on the document provided noted that he was a notary public and an unofficial magistrate and Justice of the Peace which was different from a magistrate. She also made submissions in relation to the circles on the stamp and it was her view that there was a stamp that had been cut out. She noted that the envelope shown on the document appeared to be upside down.
27. Ms Lecointe further submitted that there was no personal evidence of interaction with the author of the letter by the appellant. It was submitted that it had not been clarified by the lawyer as to the nature of why he was acting for the appellant and his father or any interaction that had been had with the police. It was submitted that if the lawyer was aware that the police had mistreated the appellant, surely that would be something that would be mentioned in the letter if it was genuine. Ms Lecointe clarified that she was not submitting that the document was false but rather that it could not be relied on as claimed in line with the Tanveer Ahmed guidance. She submitted that it cannot be clarified that this is the same Mr Punethanayagam as the Mr Punethanayagam that was mentioned in the country guidance of GJ. Ms Lecointe indicated that she had no objections to the preservation of the paragraphs being retained by the Tribunal. She asked that the appeal be dismissed.
28. Ms Shaw submitted that looking at the appellant’s interview record, if there were any concerns in relation to discrepancies the interview record these had to be considered in the round in line with all of the evidence, including that there were repeated problems cited in the interview with internet connections.
29. Ms Shaw submitted that the judge made findings in relation to the absence of the appellant’s brother and she submitted that the screening interview indicated in his screening interview, that the appellant did not know where he was at paragraph 3.10. She conceded however, that in the same answer the appellant stated that he had last seen him two weeks previously. Ms Shaw pointed to numerous paragraphs in the asylum interview where there had been technical issues with the connection which Ms Shaw submitted might account for any claimed discrepancies and noted that it was confirmed that the appellant wears a hearing aid which is consistent with his claim of being beaten. She submitted that everything else was consistent in relation to the appellant’s evidence including his claim of arrest, torture and the appellant’s claim that he hid for two years. The judge made a finding that the appellant was able to remain for two years without issue, which she submitted ignored the fact that it was the appellant’s claim that it was not safe for him to stay in his home and that he was taken into a hostel which was all in the appellant’s asylum interview and witness statement, including how he was able to avoid harm in the hostel. I note however, that these latter submissions relate to parts of the judge’s findings which are preserved and are not therefore at issue before me.
30. Ms Shaw also submitted that although the judge made a finding that the appellant was an economic migrant, the appellant had come as a student to study a BA. Although she considered this was not material, she was unclear where the judge came to the conclusion that the appellant was an economic migrant. The asylum interview it was submitted was entirely detailed and supported by the evidence in the round. Mr Punethanayagam was an eminent lawyer approved by the Upper Tribunal who referred to his evidence being useful and that he was a reliable witness in GJ.
31. Although Ms Lecointe had submitted that it could not be clarified that the letter was the same letter from the lawyer used in GJ, the Tribunal was asked to consider that counsel before the First-tier Tribunal confirmed in writing in the skeleton argument and in submissions that he was the same lawyer and if this was not the case then Counsel would be misleading the Court.
32. Ms Shaw submitted that in making arguments in relation to stamps and other aspects of the letter from Mr Punethanayagam Ms Lecointe was essentially purporting to give expert evidence that the letter was a fake and there was no information to suggest that Ms Lecointe had this expertise. Whilst it was discussed that Ms Lecointe was in effect submitting that the letter could not be relied on as claimed, rather than claiming the letter was a fake, Ms Shaw submitted that if the judge considered this, other than stating that the letter could be prepared by anyone, the judge made no mention of any such concerns in their decision. Ms Shaw also relied on a further version of the letter provided to both the Upper Tribunal and Ms Lecointe on the day of the hearing.
Findings and Reasons
33. In re-making the decision on the appellant’s asylum appeal I take into account the findings that have been preserved as set out above. I take into account that Judge Head made a number of positive credibility findings in the appellant’s favour, including the past difficulties he experienced in Sri Lanka.
34. This included that the judge accepted that the appellant had lost hearing in one ear as a result of the beating he received (paragraph [33]). I have considered those positive credibility findings in the round. I have also considered the finding that the appellant was able to remain in Sri Lanka following these incidents and have preserved Judge Head’s finding (at [34]) that it was not the appellant’s claim that either of those incidents had caused him any ongoing difficulties or adverse interest from the Sri Lankan authorities.
35. I take into account that the appellant’s interview record and his witness statement contain detailed and consistent evidence in relation to the events before he left Sri Lanka. I note that many of the respondent’s credibility issues in the Reasons for Refusal Letter were not relied on by the judge and those findings are preserved, including in relation to the appellant’s previous difficulties in 2016 and 2018.
36. The respondent went on to state that the claimed level of interest would only be likely in those that were highly active or high ranking members or former members of the LTTE and as the appellant had claimed not to have been a high ranking member it was not accepted that the police had any adverse interest in him.
37. Whilst it is noted that the letter from Mr Punethanayagam, the appellant’s and father’s lawyer, was provided on appeal the respondent’s review does not address this letter. The respondent’s review claims that the appellant has been inconsistent as he did not state at his screening interview that his father and friend had been arrested.
38. Whilst Judge Head accepted that the reference in the screening interview to 2020 was an error, as noted the judge did draw adverse inference from the appellant’s failure to mention the arrest of his father and his friend in December 2021 in his screening interview at paragraph [37]. The appellant was not granted permission on his ground of appeal challenging those findings and they are preserved in remaking the decision. I have considered this in the round.
39. I have also considered in the round, the judge’s preserved findings in relation to the appellant’s brother, where the judge attached significant adverse weight to the absence of the appellant’s brother from the appellant’s appeal and his failure to provide any input in the appellant’s appeal. Again the appellant was not granted permission on his ground of appeal challenging those findings and there was no renewal application before the Upper Tribunal in relation to either of those unsuccessful grounds.
40. The judge’s findings in relation to the failure of the appellant’s brother to attend the appellant’s hearing or provide any evidence in support of the appellant’s appeal, at paragraphs [40] and [41] (as well as the preserved element of [39] in relation to his brother) are not in my findings infected by the judge’s material error in relation to the lawyer’s letter.
41. I also take into account in the round, that the appellant’s evidence in relation to his sur place activities was not considered credible by the judge who did not accept that these activities were genuinely motivated and considered that these activities damaged the appellant’s claim to be genuinely motivated, and that the appellant was an opportunistic hanger-on, paragraphs [42] to [47]. Those findings are preserved. I must therefore consider the evidence from Mr Punethanayagam in the round, including in light of all of the above preserved findings.
42. Mr Punethanayagam provided a detailed letter indicating that the appellant’s father was his client. Although Ms Lecointe submitted that the letter was silent as to the relationship between the appellant’s father and the lawyer, the letter details that he is his client and that the appellant’s father approached Mr Punethanayagam on 8 December 2021 and complained to him in writing about the father’s unlawful arrest which had been made by the Sri Lankan police on 4 December 2021. The letter also details the appellant’s history in Sri Lanka and asserts that the appellant’s friend was arrested at the airport after the appellant went to London.
43. Mr Punethanayagam indicated that the appellant’s father approached him four days later on 8 December and the appellant’s father indicated that he had been assaulted, tortured and threatened to disclose details of his son, the appellant. The letter goes on to state that the Sri Lankan police warned that the appellant would not come home if he returned to Sri Lanka and noted that the appellant’s father was then released. The letter states that the Sri Lankan police had been threatening the appellant’s father’s family frequently, including most recently in November 2023 and had tortured the appellant’s father, including enquiring about the appellant’s participation in activities in London.
44. Whilst I take into account that, as stated by Mr Punethanayagam in the final paragraphs of his letter, the evidence in the letter is entirely based on what the appellant’s father reported to Mr Punethanayagam who ‘furnished the information’, I accept to the lower standard that this letter is written by Mr Punethanayagam, the same lawyer referred to in the country guidance case. Whilst Mr Punethanayagam’s evidence was accepted by the Upper Tribunal as useful and reliable as highlighted by Ms Shaw, I take into account that this related only to ‘where his evidence concerns the criminal processes in Sri Lanka’.
45. I note that the Upper Tribunal’s comment in the country guidance that some of Mr Punethanayagam’s written evidence ‘goes beyond what he can be taken to know himself’ is also the case in my findings, in Mr Punethanayagam’s restatement of what the appellant’s father has told him.
46. I do accept however, that Mr Punethanayagam has provided the letter in good faith, but with no evidence of any specific knowledge of the claimed events. Although Mr Punethanayagam refers to the appellant’s father complaining to him in writing about the unlawful arrest, the letter is silent, for example, as to any action taken by Mr Punethanayagam in relation to that complaint.
47. Mr Punethanayagam states that the appellant’s father is in fear that his son and his family are in danger due to the activities of the Sri Lankan authorities. Mr Punethanayagam goes on to detail that Sri Lankan people are being arrested and detained under the Prevention of Terrorism Act and details the case of a student arrested for having photographs of the LTTE leader. He also details an ex-LTTE cadre being arrested and produced before the magistrates with Mr Punethanayagam appearing for him twice. Mr Punethanayagam also details another incident where a female was arrested for cutting a cake on the birthday of an LTTE leader and that the lady is still in remand. Mr Punethanayagam concludes that in the above circumstances it was his view that the fear of the appellant’s father was reasonable and genuine and concludes that the letter was issued on the request of the father who had furnished the information.
48. I reject Ms Lecointe’s speculative submission in relation to the stamps on the letter and the reliability of the letter generally, and I accept Ms Shaw’s submission that the letter can be relied on and I accept the general submission that there is some evidential value in the fact that a recognised lawyer has restated the information provided by the appellant’s father. I must consider that evidence in the round.
49. I have considered that the appellant has provided a reasonably detailed account. However, this is particularly in relation to the events that occurred to him in Sri Lanka which have been accepted. Whilst I accept Ms Shaw’s submissions in relation to there being repeated technical issues at the appellant’s interview, there were no submissions and nothing to suggest that these issues led to any negative credibility findings. The majority of the appellant’s 28 paragraph witness statement related to issues other than the core of his account: that the authorities are pursuing him because of his associations with his friend whom he claimed was arrested, with the appellant, his father and Mr Punethanayagam, (in restating the account the appellant’s father gave him) claiming that his father was also arrested and tortured.
50. I rely on the preserved findings of Judge Head that it is significant that the appellant did not mention the arrest of his friend or his father in the screening interview.
51. Whilst the support of Mr Punethanayagam is taken into account I am not satisfied, when considered to the lower standard, that this takes the appellant’s case much further, other than that his father has gone to a lawyer to report claimed torture and that these claimed difficulties related to his son.
52. It is significant that the letter ends in stating that the letter was issued at the request of the appellant’s father and that it was the appellant’s father “who furnished this information”. There is no evidence, for example, that Mr Punethanayagam, despite indicating that the appellant’s father is his client, has taken any action following the complaint in writing from the appellant’s father, or that there has been any independent enquiry by Mr Punethanayagam or otherwise as to whether these events occurred.
53. Whilst I do therefore attach some weight to the letter from Mr Punethanayagam as supportive of the appellant’s account, it goes no further than restating what the appellant’s father has told him.
54. I must therefore consider this in the round, including considering the evidence of the appellant and the letter from his father. I also take into account the preserved findings that it is significantly damaging to the appellant’s credibility that his brother provided no evidence in support of the appellant’s appeal, which Judge Head found to indicative of the lack of credibility in the appellant’s account. Judge Head found that there was no good reason for the lack of any evidence from the appellant’s brother whom he would have expected, if the claimed events of December 2021 had truly taken place, to have ‘wished to support and confirm it’.
55. Ms Shaw indicated that no further oral or other evidence was to be submitted in re-making the appellant’s asylum appeal and therefore Judge Head’s adverse findings in relation to the appellant’s brother stand and the significance of the absence of any further evidence from or in relation to him.
56. Whilst I share Ms Shaw’s view that the appellant came to the UK as a student I also share her conclusion that the judge’s comment that the appellant is an economic migrant is not material.
57. Considering all of the evidence before me cumulatively, including that there are a number of positive findings made by Judge Head in favour of the appellant’s credibility, I take into account that these relate primarily to issues which are essentially unconnected to the core of the appellant’s account; Judge Head’s findings at [34], that the appellant was able to remain in Sri Lanka for at least a further three years following the 2018 incident and that is was not the appellant’s claim that either of these incidents caused him any ongoing difficulties or adverse interest, are preserved.
58. Taking into account the preserved findings, I am not satisfied that the limited findings in the appellant’s favour which I have made, that I accept his father approached Mr Punethanayagam who I accept is a Sri Lankan, lawyer and I accept that the lawyer provided a letter based on what the appellant’s father told him, bring the appellant’s case any further.
59. I have also taken into account in the round Judge Head’s finding that the appellant’s sur place activities were not credible and that he did not have a genuine commitment to Tamil separatism and was an opportunistic hanger-on.
60. Whilst that in itself does not mean that the claimed events with his father and his friend did not take place, I have considered it in the round, including in light of the preserved findings at [37], in relation to the lack of any mention at the appellant’s screening interview of his friend and his father’s claimed arrest and the significant concerns in relation to the lack of evidence from the appellant’s brother, where such ought to have been available, particularly in circumstances where it is claimed that their father had been attacked and tortured, which is ‘indicative of the lack of credibility in the account’.
61. I have considered in the round that whilst I accept that Mr Punethanayagam is indeed a lawyer, there is no independent evidence referred to in that letter in support of the appellant’s account, with Mr Punethanayagam clearly noting that it is based on what the father has told him. Whilst in good faith therefore, it does not materially assist the appellant and is in line with what the Upper Tribunal observed in GJ, that Mr Punethanayagam’s written evidence ‘goes beyond what he can be taken to know himself’.
62. Drawing all the evidence together, I do not accept to the lower standard that the appellant has demonstrated that the events with his claimed friend and his father in Sri Lanka took place as claimed. I do not accept to the lower standard that the appellant has demonstrated that either his friend and/or his father were arrested as claimed.
63. I have assessed therefore the risk to the appellant on the basis of the country guidance including KK and RS reaffirmed by the Court of Appeal in KK and RS (Sri Lanka) [2022] EWCA Civ 119.
64. I have taken into account that the judge was incorrect in his findings that he had considered all of the available evidence as he had not considered that there was supportive evidence that Mr Punethanayagam was a lawyer. I now consider that evidence in the round.
65. I have reminded myself that “a significant role” does not require a formal position nor a high profile, what matters is the nature and extent of an individual’s activities, set against the background of their and their family’s history in Sri Lanka.
66. Although it had been stated in the grounds of appeal that the judge had not factored in his positive credibility findings that is incorrect. At [49] the judge noted that he had accepted the incidents occurred in 2016 and 2018. The judge accepted this and the appellant’s claim to have an older brother in the LTTE who was rehabilitated and currently lives without issue in Sri Lanka.
67. Reaching my own conclusions, whilst I accept Mr Punethanayagam’s letter in support can be relied on, taking into account the preserved findings and my findings of fact and applying the lower standard of proof I am not satisfied that the appellant would be perceived to be taking on a significant role in post-conflict Tamil separatism and I find that he can return to Sri Lanka without risk.
68. Similarly any claim for humanitarian protection in the alternative would fail. There are no substantial grounds for believing that the appellant if returned to Sri Lanka would face a real risk of serious harm. Articles 2 and 3 stand and fall with the asylum and humanitarian protection claim.
69. The judge’s findings on Article 8 are preserved.
Notice of Decision
70. The making of the decision in the First-tier Tribunal involved a making of an error on a point of law. I set aside the decision with findings preserved (above).
71. I re-make the decision in the appeal by dismissing it.

M M Hutchinson

Deputy Upper Tribunal Judge Hutchinson
Immigration and Asylum Chamber

7 April 2025