Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000817

First-tier Tribunal No: PA/55638/2023
LP/10078/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 1st of July 2025

Before

UPPER TRIBUNAL JUDGE HOFFMAN

Between

MN
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M Moriarty of counsel, instructed by York Solicitors
For the Respondent: Mr B Hulme, Senior Home Office Presenting Officer

Heard at Field House on 19 June 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

1. The appellant, who is a citizen of Sri Lanka, appeals with permission against the decision of First-tier Tribunal Judge Ketteley (“the judge”) promulgated on 6 December 2024 dismissing his appeal against the respondent’s decision dated 14 April 2023 to refuse his fresh asylum and human rights claims.
Anonymity
2. The First-tier Tribunal made an order for anonymity and no application has been made to set that aside. In maintaining the order for anonymity, I have taken into account the strong public interest in open justice. However, in this case it is outweighed by the appellant’s interests, as his claim relates to international protection on the basis of his political opinion.
Background
3. The appellant was born in 1989. He claims to have arrived in the UK illegally on 15 March 2011 (although some of the medical evidence refers to 2009). On 17 March 2011, he was served with a notice informing him that he was liable to removal as an illegal entrant and he claimed asylum the same day. His asylum claim was refused on 14 April 2011 and his subsequent appeal to the First-tier Tribunal was dismissed on 21 October 2011. That decision was set aside with some findings preserved by the Upper Tribunal on 13 March 2012, but the appeal was dismissed again on 20 August 2013 following a remaking hearing. On 11 November 2013, the appellant filed further submissions on the respondent which were refused on 17 August 2017. He then filed a second set of further submissions on the respondent on 16 August 2021. It appears that these were supplemented by a letter written by the appellant’s solicitors dated 24 February 2023. The appellant claimed that he was at real risk of persecution in Sri Lanka on account of sur place activities in support of the Transitional Government of Tamil Eelan (“TGTE”). It was also asserted that his removal would breach his rights under Article 3 of the European Convention on Human Rights (“ECHR”) because he suffered from mental health issues and was at risk of suicide, as well as on Article 8 ECHR grounds because of his relationship with his family in the UK, including his parents and brothers.
4. In the decision dated 14 April 2023, the respondent accepted that the submissions met the fresh claims test under paragraph 353 of the Immigration Rules. However, she found that the appellant’s evidence of his sur place activities was not sufficient to enable her to depart from the findings made by the previous judges and she did not accept that he faced a real risk of harm on return to Sri Lanka. The respondent also found that the appellant could seek treatment for his mental health issues in Sri Lanka and that there were no exceptional circumstances to his case to warrant a grant of leave to remain outside of the Immigration Rules on Article 8 grounds.
The appeal before the First-tier Tribunal
5. The appellant’s appeal against the decision of 14 April 2023 was heard by the First-tier Tribunal on 22 November 2024. The appellant relied upon a medical report that said he was unfit to give evidence. Consequently, the only witness who gave oral evidence was one of the appellant’s brothers. The appeal was dismissed on all grounds on 6 December 2024.
6. Permission to appeal was subsequently granted by Upper Tribunal Judge Blundell on 24 April 2025 on the following grounds:
1) When considering the appellant’s asylum claim, it was arguably irrational for the judge to reject the extent of the appellant’s TGTE activities for the reasons that he gave at [26].
2) When considering the appellant’s Article 3 ECHR medical claim, the judge arguably made a material error of law by failing to consider whether the appellant would access mental health treatment in Sri Lanka without the support of his family members in the UK.
3) When considering the appellant’s Article 8 ECHR claim, the judge arguably made a material misdirection of law by reducing the weight to be attached to his accepted family life in the UK by reference to s.117B(4) and (5) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”).
Findings – Error of Law
Ground 1: Consideration of the appellant’s sur place activities
7. The judge correctly took as his starting point at [23] the findings (as preserved by Upper Tribunal Judge Hanson) of First-tier Tribunal Judge Malloy, who heard the appellant’s original asylum appeal. At [24], the judge expressed concern about the lack of evidence to explain why the appellant had since become involved in pro-Tamil activities in the UK. At [25], the judge took into account the letters relied upon by the appellant written by TGTE members of parliament attesting to involvement with the organisation, including fundraising, organising events and recruiting new members, as well as other members of the Tamil diaspora which said that the appellant carried out fundraising activities for the TGTE. However, the judge went on to find that the oral evidence of the appellant’s brother was vague about when the appellant started to participate in diaspora activities.
8. At [26], the judge found it “problematic” that, despite living together for several years, the appellant’s brother was unable to articulate clearly what activities the appellant carried out in the UK for the TGTE. The judge did not find it to be credible that the brother would, on the one hand, state how “proud” he was of the appellant’s pro-Tamil activities yet, on the other hand, be unable to say what these activities were. The judge also took note of the fact that the appellant’s second brother, who was said by the first brother to participate in pro-Tamil activities alongside the appellant and would therefore be in a better position to give evidence on his involvement, had not provided any evidence in support of the appeal. The judge found that the reason why the first brother could not “articulate the Appellant’s involvement with the diaspora activities is because the Appellant is not involved with the diaspora activities as claimed.”
9. At [27], the judge found that he could attach little weight to the witness statements of the appellant’s father and members of the diaspora community because they did not attend the hearing to have their evidence tested. At [28], the judge considered the photographic evidence purporting to show the appellant attending TGTE events. The judge gave several reasons as to why he found that only limited weight could be attached to the photographs. He then concluded at [29] that, applying the lower standard of proof, he was not satisfied that the appellant was an active participant of pro-Tamil diaspora activities. While there was some evidence that the appellant had attended TGTE events in the UK, the judge found that he had done so in order to bolster his asylum claim.
10. Later in the decision, at [35], when considering risk on return, the judge said:
“I have given little weight to the letters from the TGTE MPs which purport to set out the activities the Appellant has undertaken as I prefer the evidence from his brother who lives alongside him and which was tested under cross examination which has led me to finding that [the] Appellant is not involved in TGTE activities as claimed save for limited attendance as [sic] a small number of TGTE events.”
11. Mr Moriarty submitted that the brother’s evidence did not contradict or undermine the evidence of the TGTE MPs. The brother’s evidence was, he said, based on his own, albeit limited, personal knowledge of the appellant’s activities and this did not equate to the appellant not being involved with the TGTE. Mr Moriarty said that the appellant had produced extensive corroboratory evidence, including from TGTE MPs and others, indicating that he carried out several roles for the organisation in the UK, including fundraising. Mr Moriarty also referred to the photographic evidence. He argued that the judge did not make any clear findings at [25] about whether these documents were fake or that the witnesses were lying. If the judge thought that those letters could not be relied upon, then he was required to give reasons why, Mr Moriarty said.
12. The question of how much weight to attach to the latest evidence relied upon by the appellant to demonstrate his sur place activities was a matter for the judge. I am satisfied that it was open to him to make adverse findings about the brother’s evidence in circumstances where he was unable to say when the appellant began his pro-Tamil activities in the UK or what these activities entailed, despite the fact that he and the appellant had lived together for several years. I am also satisfied that the judge was entitled to take into account that the brother who was said to participate in the pro-Tamil activities alongside the appellant, and who would therefore be of greater assistance as a witness than the brother who did appear, had failed to provide any evidence at all to the tribunal. It was also open to the judge to attach little weight to the witness statement made by the appellant’s father and letters of support written by those who did not attend the hearing to have their evidence tested in cross-examination. Furthermore, the judge was entitled to attach little weight to the photographs for the reasons that he gave.
13. However, after careful consideration, I am satisfied that the judge did make an error of law in relation to his treatment of the letters from the three TGTE MPs. As Mr Moriarty submitted, the judge does not make any clear findings at [25] about the weight to be attached to the letters. Nor does he give any reasons to doubt their provenance. While the judge returned to the MPs’ letters at [35], I am satisfied that it was irrational for him to find that the brother’s vague evidence could be “preferred” or otherwise lessen the weight to be attached to them. The judge was entitled to find that the brother’s evidence did not assist the appellant’s claim but, as Mr Moriarty submitted, it did not contradict anything that was said in the MPs’ letters.
14. I have given consideration to whether this error can be said to be material given the other reasons given by the judge for rejecting the appellant’s claim to have a significant role in pro-Tamil activities in the UK. As explained above, many of the findings were open to the judge. However, the evidence still needed to be considered in the round and given that the appellant produced letters from not just one, but three, TGTE MPs, and in the absence of cogent reasons to doubt their authenticity, they might be said to carry real weight when a holistic assessment of the evidence is carried out. I am therefore satisfied that the error is material.

Ground 2: Consideration of the Article 3 ECHR medical claim
15. At [38] to [40], the judge accepted that the appellant suffers from mental health issues, has previously attempted suicide and is alcohol dependant. However, relying on the Country Policy Information Note on medical treatment and healthcare in Sri Lanka, he found that the appellant could be expected to access mental health support on return and that he would be pro-active in managing his mental health needs as he had been in the UK.
16. The appellant argues that the judge failed to factor in the support he receives from his immediate family in the UK and whether, without that support, he would struggle to access mental healthcare facilities in Sri Lanka. I have some sympathy with the judge on this point given that it was not dealt with in the expert psychiatric report or the appellant’s witness statement that were before him. However, this was a point that was expressly raised in the appellant’s skeleton argument at paragraph 39. I am therefore satisfied that the judge did make a material error of law by failing to consider whether the appellant would be able to access medical care in Sri Lanka without the support of his immediate family.
Ground 3: Consideration of family life under Article 8 ECHR
17. When considering the appellant’s Article 8 ECHR claim, the judge accepted at [44] that the appellant enjoyed family life with his UK-based relatives. This included his parents and brothers. However, at [46], the judge said as follows:
“I have had regard to the statutory consideration that little weight should be given to a private life established by a person at a time when the person is in the UK unlawfully or their immigration status is precarious. Accordingly, I give little weight to the relationship the Appellant has with his brothers and their families and his parents as well as any friendships he has made in the UK.”
18. As Mr Moriarty submitted, the judge conflated the appellant’s private and family lives. The statutory considerations that the judge is referring to are subsections (4) and (5) of s.117B of the 2002 Act:
“(4) Little weight should be given to—
(a) a private life; or
(b) a relationship formed with a qualifying partner,
that is established by a person at a time when the person is in the United Kingdom unlawfully.

(5) Little weight should be given to a private life established by a person at a time when the person’s immigration status is precarious.”
19. Given that the appellant has never had any lawful basis to be in the UK, the judge was entitled to attach little weight to his private life in accordance with s.117B(4)(a). However, neither subsections (4) or (5) apply to a person’s family life with a person who is not a qualifying partner. They are not therefore applicable to the appellant’s family life with his parents and brothers. However, the fact that there is no statutory consideration set out in Part VA of the 2002 Act does not mean that a judge cannot decide to attach limited weight to a family life developed at a time when a person has no, or limited, leave to remain. I therefore asked Mr Moriarty whether this error can be said to be material. His reply was that if the judge considered himself bound by subsections (4) or (5) to attach little weight to the appellant’s family life, it is difficult to know what weight he might otherwise have attached to it. After careful consideration, I agree with Mr Moriarty and I am satisfied that the judge made a material error of law in applying the statutory considerations set out under s.117B(4) and (5) of the appellant’s accepted family life in the UK.
Remaking
20. In the light of my conclusions above, none of the judge’s findings can be preserved. Taking into account the nature and extent of the judicial fact-finding that is necessary for the appeal to be re-made, which covers international protection, a medical claim and an Article 8 ECHR claim, applying paragraph 7.2 of the Practice Statements of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal, I am satisfied that remittal for a de novo hearing is the appropriate course of action.

Notice of Decision
The decision of the First-tier Tribunal involved the making of material errors on a point of law.
The decision of the First-tier Tribunal is set aside with no findings preserved.
The remaking of the decision in the appeal is remitted to the First-tier Tribunal at Taylor House, to be remade afresh and heard by any judge other than Judge Ketteley.

M R Hoffman

Judge of the Upper Tribunal
Immigration and Asylum Chamber

27th June 2025