Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No.: UI-2025-000860

First-tier Tribunal Nos: PA/65332/2023
LP/08538/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

6th May 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE MONSON

Between

AA (SRI LANKA)
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Ursula Miszkiel, Counsel instructed by MTC Solicitors
For the Respondent: Mr J Thompson, Senior Home Office Presenting Officer

Heard at Field House on 17 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.

DECISION AND REASONS
1. The appellant appeals against the decision of First-tier Tribunal Judge Hussain promulgated on 29 December 2024 (“the Decision”). By the Decision, Judge Hussain dismissed on asylum, humanitarian protection and human rights grounds the appellant’s appeal against the decision of the respondent made on 29 November 2023 to refuse to recognise him as a refugee on account of his actual or imputed political opinion.
Relevant Background
2. The appellant is a national of Sri Lanka of Sinhalese ethnicity. He arrived in the UK on 11 January 2014 on a student visa which was valid until 16 January 2017. He graduated from Ulster University in 2016, and overstayed. On 14 January 2020 he claimed asylum. The basis of his claim was that on 27 December 2013 he had been arrested by the CID at his home, for helping a friend from Batticaloa who was staying with him, and who was accused of being involved in the LTTE. In January 2014 he was released from detention after he was forced to sign a piece of paper which he believed to be a confession. He feared that upon return to Sri Lanka he would be arrested and harmed.
3. In the reasons for refusal letter (RFRL) dated 29 November 2023, the Home Office did not accept that the appellant had been arrested and detained in the circumstances which he put forward, or that he was of ongoing adverse interest to the Sri Lankan authorities. The reasoning of the Home Office included the fact that by his own admission he was not a supporter of the LTTE, and he did not like politics (AIR Q.89, Q.90). External sources stated that he would only face arrest upon return to Sri Lanka if he had a case pending against him for a criminal act. However, as he claimed that he was released from detention and not formally arrested, it was unlikely that he would be arrested upon his return.
4. The appellant’s case on appeal was that there was a real risk that he was on a ‘stop list’ as his brother had paid a bribe to secure his release from detention. Further or alternatively, the appellant was at risk because he had carried out diaspora activities on behalf of the TGTE, which was a proscribed terrorist organisation in Sri Lanka. As evidenced by the photograph at page 92 of the appeal bundle, he had held the Tamil Eelam flag at Mullivaikkal Remembrance Day (aka “Tamil Genocide Day”).
The Hearing Before, and the Decision of, the First-Tier Tribunal
5. The appellant’s appeal came before Judge Hussain sitting at Taylor House on 14 November 2024. Both parties were legally represented, with Ms Miszkiel appearing on behalf of the appellant. The appellant was called as a witness, and he adopted as his evidence in chief his appeal statement. In this statement. the appellant said he had decided to attend demonstrations against the Sri Lankan Government because it empowered him to speak out against the injustices he had suffered. Although he was not a Tamil, he stood in solidarity with their cause because it was a true way of justice. Since Covid-19 he had been attending annual events organised by the TGTE which included Tamil Genocide Day (on 18 May). He did not attend the protests to take photographs. He only had one from this year.
6. In his oral evidence, the appellant said that he had started attending Tamil separatist events in 2018. When it was pointed out in cross-examination that he had said in his witness statement that he had only started going after Covid, he said that he had had problems when he attended in 2018. So, there had been a gap, and then he had re-commenced attending protests after Covid. However, he was not a member of any political organisation in the UK. He was not a member of any Tamil organisation, and he was not a member of the TGTE, although he attended their demonstrations.
7. The Judge’s findings began at para [46] of the Decision. He dealt first with the appellant’s claimed fear of persecution arising from the claimed adverse interest in him in Sri Lanka in December 2013. For the reasons which he gave at paras [47] to [52], the Judge held that the appellant’s claim in this regard was fabricated.
8. The Judge then turned to the sur place claim. At para [53], the Judge said it was highly unlikely that the appellant would have suddenly in 2018 decided to embrace the Tamil cause and publicly manifest his support of it, when he was not a believer previously. At para [54] the Judge observed that the appellant did not explain how his protest against the injustice he suffered was at one with the separatism championed by the group entitled the TGTE.
9. At para [55] the Judge observed that the only evidence which the appellant had provided of his sur place activity was his attendance at a demonstration recently - a photograph of him in the bundle showed him holding the TGTE flag. At para [56] the Judge did not accept that, other than the one incident shown in the photograph, the appellant had attended any other demonstrations in the UK, and the claim that he was photographed and confronted by the Sinhalese people in this country was entirely made up. The Judge continued in para [57]:
“It was submitted forcefully by the appellant’s Counsel that given his embrace of the Tamil separatist cause, if he went back to Sri Lanka he would be charged with terrorism offences. The difficulty with that submission is that there is no evidence that [this] single event which I have early indicated I accept the appellant has attended … has come to the attention of the Sri Lankan authorities and that they have the ability and willingness to identify the appellant on return. She also submitted that because the display of the TGTE flag is proscribed in Sri Lanka, the appellant would not be able to manifest his political expression without getting arrested and charged. However, given that the appellant admitted not only to having no political activity in Sri Lanka, but in fact having no interest in it and no formal association with any political organisation in this country, I do not accept that on return to Sri Lanka, the appellant would suddenly want to go around holding the flag as a manifestation of his political belief.”
The Grounds of Appeal to the Upper Tribunal
10. Ms Miszkiel settled the grounds of appeal to the Upper Tribunal. She advanced a single ground of appeal, which was that the First-tier Tribunal Judge had made an unreasonable and/or irrational assessment of the real risk of future persecution arising from the appellant holding the Tamil Eelam flag at a TGTE demonstration, having regard to the Tribunal’s findings in KK and RS (Sur place activities, risk) CG [2021] UKUT 00130 (IAC), the Prevention of Terrorism Act, and the respondent’s CPIN on Tamil Separatism dated August 2022.
The Reasons for the Grant of Permission to Appeal
11. On 19 February 2025 First-tier Tribunal Judge Curtis granted permission to appeal as it was arguable that the Judge had failed to adopt the approach mandated in KK and RS. Given what KK and RS said about the “extensive intelligence-gathering regime” operated by the Sri Lankan Government in the UK (headnote 8) it was arguable that the Judge erred by not considering whether it was reasonably likely that this intelligence gathering regime had caught the appellant’s solitary act of contrived sur place activity.
The Hearing in the Upper Tribunal
12. Although there was no Rule 24 response, Mr Thompson opposed the appeal on the ground that the Judge was not clearly wrong in his risk assessment, and hence no error of law was made out applying Volpi & Volpi.
13. However, for the reasons which I set out below, I was persuaded that an error of law was made out for the reasons given in the grant of permission.
14. As I was also satisfied that no further fact-finding was required, I invited the representatives to address me on the question of how the decision should be remade, having regard in particular to paras (19) to (22) of the headnote in KK and RS.
15. Mr Thompson submitted that the appellant would not be at a real risk of persecution upon return because he would not be perceived to have undertaken a significant role in Tamil separatism simply be virtue of his participation in a single event.
16. Ms Miszkiel submitted that the single event would be enough to engender a real risk of persecution because of the aggravating factor of the appellant holding a Tamil Eelam flag which would lead to a real risk of arrest and detention in Sri Lanka under the Prevention of Terrorism Act (PTA), as evidenced by (among other things) a Tamil Guardian article dated 30 November 2023 entitled: “Sri Lanka sees Terrorism in Flags and Candles - 7 Tamils held under the PTA”. This highlighted that seven Tamils were arrested and detained under the PTA simply for having the Tamil Eelam flag when celebrating Heroes Day in Sri Lanka. Having heard full argument from Ms Miszkiel on how the decision should be remade, I reserved my decision on remaking.
Reasons for Finding an Error of Law
17. As the guidance given by the Tribunal in KK and RS is central both to the error of law challenge and to the question of how the decision should be remade, I set out below the relevant extracts from the headnote:
(1) The current Government of Sri Lanka (“GoSL”) is an authoritarian regime whose core focus is to prevent any potential resurgence of a separatist movement within Sri Lanka which has as its ultimate goal the establishment of Tamil Eelam.
…
(4) GoSL views the Tamil diaspora with a generally adverse mindset, but does not regard the entire cohort as either holding separatist views or being politically active in any meaningful way.
(5) Sur place activities on behalf of an organisation proscribed under the 2012 UN Regulations is a relatively significant risk factor in the assessment of an individual’s profile, although its existence or absence is not determinative of risk. Proscription will entail a higher degree of adverse interest in an organisation and, by extension, in individuals known or perceived to be associated with it. In respect of organisations which have never been proscribed and the organisation that remains de-proscribed, it is reasonably likely that there will, depending on whether the organisation in question has, or is perceived to have, a separatist agenda, be an adverse interest on the part of GoSL, albeit not at the level applicable to proscribed groups.
…
(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.
(9) Interviews at the Sri Lankan High Commission in London (“SLHC”) continue to take place for those requiring a Temporary Travel Document (“TTD”).
(10) Prior to the return of an individual traveling on a TTD, GoSL is reasonably likely to have obtained information on the following matters:
i. whether the individual is associated in any way with a particular diaspora organisation;
ii. whether they have attended meetings and/or demonstrations and if so, at least approximately how frequently this has occurred;
iii. the nature of involvement in these events, such as, for example, whether they played a prominent part or have been holding flags or banners displaying the LTTE emblem;
iv. any organisational and/or promotional roles (formal or otherwise) undertaken on behalf of a diaspora organisation;
v. attendance at commemorative events such as Heroes Day;
vi. meaningful fundraising on behalf of or the provision of such funding to an organisation;
vii. authorship of, or appearance in, articles, whether published in print or online;
viii. any presence on social media;
ix. any political lobbying on behalf of an organisation;
x. the signing of petitions perceived as being anti-government.
(11) Those in possession of a valid passport are not interviewed at the SLHC. The absence of an interview at SLHC does not, however, discount the ability of GoSL to obtain information on the matters set out in (10), above, in respect of an individual with a valid passport using other methods employed as part of its intelligence-gathering regime, as described in (8). When considering the case of an individual in possession of a valid passport, a judge must assess the range of matters listed in (10), above, and the extent of the authorities’ knowledge reasonably likely to exist in the context of a more restricted information-gathering apparatus. This may have a bearing on, for example, the question of whether it is reasonably likely that attendance at one or two demonstrations or minimal fundraising activities will have come to the attention of the authorities at all.
(12) Whichever form of documentation is in place, it will be for the judge in any given case to determine what activities the individual has actually undertaken and make clear findings on what the authorities are reasonably likely to have become aware of prior to return.
…
(15) Those being returned on a TTD will be questioned on arrival at BIA. Additional questioning over and above the confirmation of identity is only reasonably likely to occur where the individual is already on either the stop list or the watch list.
…
(17) Returnees who have no entry on the general database, or whose entry is not such as to have placed them on either the stop list or the watch list, will in general be able to pass through the airport unhindered and return to the home area without being subject to any further action by the authorities (subject to an application of the HJ (Iran) principle).
(18) Only those against whom there is an extant arrest warrant and/or a court order will appear on the stop list. Returnees falling within this category will be detained at the airport.
(19) Returnees who appear on the watch list will fall into one of two sub-categories: (i) those who, because of their existing profile, are deemed to be of sufficiently strong adverse interest to warrant detention once the individual has travelled back to their home area or some other place of resettlement; and (ii) those who are of interest, not at a level sufficient to justify detention at that point in time, but will be monitored by the authorities in their home area or wherever else they may be able to resettle.
(20) In respect of those falling within sub-category (i), the question of whether an individual has, or is perceived to have, undertaken a “significant role” in Tamil separatism remains the appropriate touchstone. In making this evaluative judgment, GoSL will seek to identify those whom it perceives as constituting a threat to the integrity of the Sri Lankan state by reason of their committed activism in furtherance of the establishment of Tamil Eelam.
(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.
(22) The monitoring undertaken by the authorities in respect of returnees in sub-category (ii) in (19), above, will not, in general, amount to persecution or ill-treatment contrary to Article 3 ECHR.
18. The Judge erred in law in para [57] by not following the mandatory guidance given in KK and RS. If the appellant had been in possession of his own passport, it would have been open to the Judge to find that it was not reasonably likely that the appellant’s attendance at a single demonstration would have come to the attention of the authorities. But as the appellant would be an individual travelling on a TTD, the Judge was required to direct himself that the GoSL was reasonably likely to have obtained - before his return on a TTD - information about whether he had attended any meetings or demonstrations or commemorative events such as Tamil Genocide Day, and information about the nature of the appellant’s involvement in the one event which he had attended.
19. The upshot is that the Judge’s conclusion that the appellant would not face a real risk of persecution upon return on account of his sur place activities was inadequately reasoned, as the Judge did not ask himself whether the appellant would be perceived as having undertaken a significant role in Tamil separatism as a consequence of his single contrived act of support for the cause of Tamil separatism becoming known to the GoSL, prior to his return on a TTD.
20. Accordingly, although all the other findings made by the Judge are entirely sound, the decision of the First-tier Tribunal must be set aside and remade, albeit that all the findings of the First-tier Tribunal are preserved, with the exception of (a) the finding that the appellant was holding a TGTE flag and (b) the finding that the appellant would not be at risk on return because the GoSL would not be aware of his sur place activity.
Discussion and Findings on Remaking
21. The necessary starting point is the photograph which the appellant produced as evidence of his sur place activity. The photograph (which is at page 124 of the composite bundle) bears an embedded caption stating that it was taken on 18 May 2024 on Tamil Genocide Day; and it shows the appellant turning towards the camera holding one end of a Tamil Eelam flag, with the other end being held by a woman who is also turned towards the camera. They appear to be at the back of a crowd, with all the other demonstrators facing away from the camera, although one or two are in profile.
22. It is common ground that Judge Hussain incorrectly characterised the flag as being a TGTE flag, rather than a Tamil Eelam flag, but otherwise his finding holds good - namely that the appellant attended a demonstration “recently” and that there was a photograph of him in the bundle showing him holding a [Tamil Eelam] flag.
23. The Tribunal held, at para [412], that the interviews that are conducted by the SLHC in London with proposed returnees who require a TTD will routinely cover questions about their political opinions and any sur place activities. The questions will be primarily focused not on the LTTE itself, but on diaspora organisations known or perceived to expound a separatist agenda. The Tribunal held at para [413] that in response to any questions put in interview, there is no suggestion that an interviewee can be expected to do anything other than tell the truth.
24. Bearing in mind the lower standard of proof, I accept Ms Miszkiel’s submission that either through intelligence gathered at the Tamil Genocide Day event itself or through disclosure made by the appellant in response to questioning, the GoSL is reasonably likely to obtain information that the appellant attended a Tamil Genocide Day event on 18 May 2024, and held up a Tamil Eelam flag.
25. On the question of the consequences of this knowledge, Ms Miszkiel effectively puts the case for the appellant in two ways. The primary case is that as a result of developments since the Country Guidance case was promulgated, the test referred to in para (20) of the headnote can be dispensed with, and the mere fact of the appellant’s solitary act is enough to engender a real risk of persecution upon return. This was, in effect, the central thrust of the case put forward in the ASA before the First-tier Tribunal.
26. The appellant’s fall-back position is that the mere fact of the solitary act is sufficient to mean that the appellant will be perceived to have undertaken a significant role in Tamil separatism.
27. I do not consider that the use by the GoSL in Sri Lanka of the PTA to repress expressions of support for Tamil separatism within the country changes the landscape with regard to the assessment of risk for returnees who are not committed activists. I consider that the fate of the seven Tamils held under the PTA for having the Tamil Eelam flag when celebrating Heroes Day is entirely consistent with headnote (3) of KK and RS which states that whilst there is limited space for pro-Tamil organisations to operate within Sri Lanka, there is no tolerance for the expression of avowedly separatist or perceived separatist beliefs.
28. I am not persuaded that the evidence cited in the ASA justifies a departure from KK and RS. There are not substantial grounds for believing that the GoSL will not carry out the sifting process for returnees described in the headnote at paras (19) and (20), and will not make a judgment on whether or not the appellant meets the test set out in (20).
29. After a lengthy discussion on how playing a significant role should be defined, the Tribunal concluded at para [475] that GoSL’s objective is to identify those who are an actual or perceived threat to the integrity of the Sri Lankan state by reason of their committed activism in pursuit of the establishment of a separate Tamil state on the island of Sri Lanka. The Tribunal said that this was the contextual prism through which the term ‘significant role’ should be interpreted.
30. The Tribunal turned to factorial matters which will inform a cumulative assessment. These are the factors listed in para (21) of the headnote.
31. The first factor is the nature of any organisation on behalf of which an individual has been active. I find that the appellant has not shown that the event he attended was organised by the TGTE. But even if it was, he did not thereby conduct an activity on behalf of the TGTE, and there is no real risk of him being perceived as having done so.
32. The second factor is the type of activities undertaken by the individual. I do not consider that there is a real risk that the appellant’s attendance at a single commemorative event where he held up a Tamil Eelam flag will be perceived as indicating a genuine commitment to the cause of Tamil separatism.
33. The third factor is the extent of any activities. The Tribunal said:
486. … The appellants have realistically acknowledged that a brief attendance at a single demonstration, even if known about, would not be capable of establishing a profile sufficient to disclose a risk on return. In so far as it goes, that is clearly right. For reasons set out previously, it does not follow that even if this de minimis threshold is crossed any further activity whatsoever will disclose a risk. By way of example, it might be open to serious question as to whether GoSL would be reasonably likely to perceive an individual who had attended two, three or more demonstrations, standing passively at the back of a crowd and without having engaged in any other diaspora activity, as a threat to the integrity of the state, even assuming that the attendance was known about in the first place.
487. Having said that, there may be situations in which only a few attendances are capable of attracting greater significance. We can contemplate cases where an individual has attended on a few occasions but has spoken publicly at each of them or has otherwise taken on a prominent organisational role; or where a recent arrival in the United Kingdom has attended every demonstration organised by a particular organisation since and has, for example, held flags bearing the LTTE emblem, albeit that only a few such events have taken place.
34. The fourth factor is the duration of any activity. I do not consider that the appellant will be perceived as displaying a genuine commitment to the cause of Tamil separatism by either the extent or duration of his activities.
35. The remaining factors are the individual’s history in Sri Lanka and the individual’s family connections to the LTTE. These factors do not apply to the appellant, having regard to the preserved finding of the First-tier Tribunal that the appellant did not engage in fundraising for the LTTE or the TGTE in Sri Lanka, and nor was he arrested and detained on suspicion of having been so involved.
36. In conclusion, while there are substantial grounds for believing that the appellant may be placed on a watch list, there are not substantial grounds for believing that the appellant will be placed in the sub-category of those who, because of their existing profile, are deemed to be of sufficiently adverse interest to warrant detention after they have been permitted to pass through the airport and to travel onward to their home area.
37. In the light of my finding above and the preserved findings of the First-tier Tribunal, the appellant does not qualify for recognition as a refugee or for a grant of humanitarian protection. By the same token, there are not substantial grounds for believing that the appellant will face a real risk of serious harm contrary to Article 3 ECHR on return to Sri Lanka.
Notice of Decision
The decision of the First-tier Tribunal contained an error of law, and so the decision is set aside and remade as follows: the appellant’s appeal is dismissed on asylum, humanitarian and human rights grounds.
Anonymity
The First-tier Tribunal made an anonymity order in favour of the appellant, and I consider that it is appropriate that the appellant continues to be protected by anonymity for the purposes of these proceedings in the Upper Tribunal.

Andrew Monson
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber
3 May 2025