Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000892

First-tier Tribunal No: PA/60562/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

13th May 2025

Before

UPPER TRIBUNAL JUDGE LODATO
DEPUTY UPPER TRIBUNAL JUDGE SOLANKI

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

KS
(ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Ms Ahmed, Senior Presenting Officer
For the Respondent: Mr Richardson, counsel instructed by East London Solicitors

Heard at Field House on 1 May 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

Introduction

1. We have decided to maintain the anonymity order originally made in these proceedings by the First-tier Tribunal because the underlying claim involves international protection issues in that the appellant claims to fear persecution or serious harm on return to Sri Lanka because of his sexuality. In reaching this decision, we are mindful of the fundamental principle of open justice, but we are satisfied, taking the appellant’s case at its highest for these purposes, that the potential grave risks outweigh the rights of the public to know of his identity.

2. The Secretary of State appeals with permission against the decision, dated 14 January 2025, of a judge of the First-tier Tribunal Judge (‘the judge’) to allow the appeal on asylum and human rights grounds.

3. To avoid confusion, and for the remainder of this decision, we will refer to the appellant in these appellate proceedings, the Secretary of State for the Home Department, as the respondent and the respondent in the Upper Tribunal, KS, as the appellant, as they were before the First-tier Tribunal.

Background

4. The broad factual background and/or immigration history to the appeal is not in dispute between the parties. The appellant’s primary case is that he is at risk of persecution on return to Sri Lanka because he is a homosexual man. He claimed that he could not reasonably relocate to Colombo to mitigate any risk he might face and further argued that he would encounter very significant obstacles to integration which would amount to a disproportionate breach of his Article 8 right to a private life. From the outset of the refusal of his claims, the respondent did not suggest that he could benefit from sufficient protection from the Sri Lankan authorities to guard against the risk he might face. It has never been challenged that he is a homosexual man.

Appeal to the First-tier Tribunal

5. The appellant appealed against the refusal of the claim. The appeal was heard by the judge on 13 January 2025 before allowing the appeal in a decision promulgated on 14 January 2025. For the purposes of the present proceedings, the following key matters emerge from the decision:

• The respondent’s broad position in response to the Refugee Convention claim was summarised at [4]-[5]. It was noted that the appellant’s claimed sexuality was not in dispute, but that he would not be at risk of persecution on return because the fear of harm from the community did not rise to the threshold of persecution and:

Country guidance (LH and IP [2015]) indicates that gay men in Sri Lanka generally do not face persecution, and there is no strong evidence to depart from this precedent.

It was acknowledged that the Sri Lankan authorities may not always protect LGBT persons; however, internal relocation was deemed a viable and reasonable solution. The appellant could relocate to Colombo, which is considered more "gay-friendly" and tolerant, with a larger LGBT community. Factors such as age, health, employment background, and cultural familiarity support the reasonableness of relocation. [5(b) and 6]

• The principal controversial issues were agreed to be threefold: 1) risk on return to the appellant’s home area; 2) internal relocation; 3) whether the appellant would encounter very significant obstacles to integration on return. [11]

• In the context of summarising the applicable legal framework, the judge said this (at [16]):

In LH and IP (gay men: risk) Sri Lanka CG [2015] UKUT 00073 (IAC) it was held that (i) Having regard to the provisions of articles 365 and 365A of the Sri Lankan Penal Code, gay men in Sri Lanka constitute a particular social group; (ii) ‘Gay men in civil partnerships’ in Sri Lanka do not constitute a particular social group for the purposes of the Refugee Convention. The Sri Lankan authorities’ failure to recognise alternative marital and quasi-marital statuses such as civil partnership or homosexual marriage which are available in other countries of the world does not, without more, amount to a flagrant breach of core human rights; Applying the test set out by Lord Rodger in the Supreme Court judgment in HJ (Iran) & HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31, in general the treatment of gay men in Sri Lanka does not reach the standard of persecution or serious harm; (iv) There is a significant population of homosexuals and other LGBT individuals in Sri Lanka, in particular in Colombo. While there is more risk for lesbian and bisexual women in rural areas, because of the control exercised by families on unmarried women, and for transgender individuals and sex workers in the cities, it will be a question of fact whether for a particular individual the risk reaches the international protection standard, and in particular, whether it extends beyond their home area; Where a risk of persecution or serious harm exists in an appellant’s home area, there may be an internal relocation option, particularly for individuals returning via Colombo from the United Kingdom.

• In his findings, the judge assessed the appellant’s overall credibility and reliability as a witness. It was noted that his evidence involved insubstantial inconsistencies, but that these points did not undermine his broad credibility. On a global assessment, he was found to be consistent about his “sexual orientation, societal rejection, and fear of persecution”. [18 & 22-24]

• The appellant was found to have been disarmingly frank in correcting errors in previous accounts and why he had chosen not to engage overtly with “LGBT activities in the UK”. [19-20]

• Country guidance was referred to in support of the proposition that gay men “face stigma, harassment and rejection” in Sri Lanka. [21]

• The judge relied on the agreement between the parties that the appellant was gay and was therefore a member of a particular social group. [25]

• The judge relied on the broad consistency of the appellant’s narrative evidence over time to find that his sexuality had become known in his home area and that this led to “hostility, rejection and significant personal hardship”. [26]

• Tension was noted in the various accounts and supporting evidence going to the timing and circumstances of the appellant’s father’s death. However, the discrepancies were found to be attributable to the psychological impact of losing a parent together with “ongoing guilt and trauma”. [27]

• The above analysis informed the judge’s conclusion that the underlying cause of any inconsistencies were not sinister or demonstrative of dishonesty. [28]

• At [29], the judge relied upon his credibility analysis to reach the following conclusion:

[…] The core of his account, that his father’s death was influenced by the stigma surrounding his sexuality and that this exacerbated his community’s hostility, remains credible and consistent with the broader narrative and country evidence. […]

• Between [30] and [34], the judge determined the first principal controversial issue of whether the appellant would be at risk of persecution in his home area:

Evidence of Risk

The Appellant faced verbal abuse, isolation, and physical threats from community members after his sexuality became known, particularly following his separation from his wife and his father’s suicide.

The police questioned him multiple times about his father’s death and warned him based on accusations from community members, suggesting a potential for escalation if he returns.

The CPIN (Sexual Orientation and Gender Identity) (September 2024) confirms that non-state actors often target LGBT individuals, and the state generally fails to provide adequate protection. Harassment, extortion, and discrimination by police are documented risks.

Under the HJ (Iran) principle, the Appellant’s stated intention to live openly as a gay man further substantiates the risk of persecution, as such openness is likely to provoke adverse reactions in his community.

Conclusion

On the lower standard of proof, the Appellant has demonstrated a reasonable likelihood that he would face a real risk of persecution from both state and non-state actors in his home area due to his sexual orientation.

• The judge addressed the second principal controversial issue of internal relocation between [35] and [39]:

Whether the Appellant can internally relocate to avoid his well-founded fear of persecution Feasibility of Relocation to Colombo

Colombo is identified in the CPIN (2024) as more tolerant and "gay-friendly" than rural areas. However, systemic discrimination persists, including difficulties accessing housing, employment, and healthcare for LGBT individuals.

The Appellant has no prior connections in Colombo, no financial resources, and limited education or skills beyond his work as a fisherman. He testified that his brother could provide occasional financial assistance but not enough for him to establish a stable life.

His fear of the police extends beyond his home area, supported by evidence in the CPIN indicating that harassment and extortion of LGBT individuals occur across the country, including in urban areas.

Undue Harshness

Relocation would be unduly harsh due to:

(a) The Appellant’s medical condition (high blood pressure) and his admitted lack of understanding about managing his medication, which has led to severe health incidents.

(b) The absence of familial or community support, compounded by his language barrier and limited ability to integrate.

(c) Systemic discrimination in Colombo, as noted in the CPIN, which includes stigma and exclusion from housing, healthcare, and employment.

Conclusion

Relocating to Colombo would not mitigate the risk of persecution and would impose undue hardship on the Appellant, making internal relocation neither reasonable nor feasible.

• The judge turned next to the third principal controversial issue. It was observed that he had established a private life in the UK as an openly gay man being involved with LGBT groups and community events ([40]) and his brother played in integral role as providing emotional and practical support to help him manage his physical and mental health conditions ([41]).

• On returning to Sri Lanka, the appellant would be unable to live as an openly gay man which would significantly interfere with his Article 8 rights. [42]

• The judge referred to the CPIN on healthcare and medical treatment in Sri Lanka in finding that that the appellant high blood pressure and poor medication management raised “serious concerns” to access healthcare. [43]

• In undertaking a proportionality balancing exercise (at [44]), the judge attached weight to the various matters set out at s.117B of the 2002 Act. In his assessment of the little weight provision which attached to the applicant’s precarious stay in the UK, the judge emphasised the particular strength of the ties between the appellant and his brother.

• The judge went on to articulate the competing factors and reiterated the findings he had previously reached about the difficulties the appellant would face living in Sri Lanka as a gay man (including with housing, employment and healthcare) and ultimately concluded that these problems would amount to exceptional circumstances. He also referred to the role played by his brother, his medical conditions and the likely difficulties accessing treatment on return with reference to the country evidence. [45]

• The balance was found to fall in the appellant’s favour and the refusal decision was determined to be disproportionate.

Appeal to the Upper Tribunal

6. The respondent applied for permission to appeal in reliance on a single ground of appeal that the judge had failed to give adequate reasons on material matters. The complaint coalesced around each of the principal controversial issues. The central thrust of the grounds was that the judge had not applied the applicable country guidance of LH and IP both in the context of the assessment of risk on return to the home area and internal relocation. These failings were said to have contaminated the Article 8 analysis which drew heavily on the findings reached in the context of the Refugee Convention ground of appeal.

7. At [1b] of the grounds, the respondent referred to the country guidance as support for the proposition that protection from the Sri Lankan authorities was available to gay men (although not always). The judge’s findings which said there was potential for escalation in adverse treatment on return was said to be at odds with his claim. It was said there was inadequate reasoning as to why he could not return to his home area.

8. At [1c] of the grounds, it was submitted that the judge’s reasoning on internal relocation did not adequately reflect or apply the country guidance which noted greater tolerance for the LGBT community in Colombo, that there was no objective evidence going to physical or mental health barriers preventing reintegration in a reasonable period of time and the Article 3 ECHR threshold for a health claim could not be met

9. At 1[d] of the grounds, it was argued that the Article 8 ECHR findings were flawed materially on the same basis.

10. In a decision dated 21 February 2025, First-tier Tribunal Judge Parkes granted permission for all grounds to be argued. The following observations were made in granting permission:

It is arguable that the Judge did not adequately explain why he was justified in departing from the country guidance given that the Police had not charged the Appellant in the course of their interactions. It is also not clear how the prospect of internal relocation was ruled out.

11. At the error of law hearing, we heard oral submissions from both parties. We address any submissions of significance in the discussion section below.

Discussion

12. The touchstone for considering adequacy of reasoning as an error of law remains R (Iran) & Others v SSHD [2005] EWCA Civ 982. At [13]-[14] of the judgment of Brook LJ, it was emphasised that reasons must be sufficiently detailed to show the principles on which a decision was made and why the ultimate decision was reached. Reasons need not be elaborate, nor is it necessary to address each and every matter which might have had a bearing on the overall decision if those which were material to the reasoning have been articulated. In DPP Law Ltd v Paul Greenberg [2021] EWCA Civ 672, the Court of Appeal, in the context of employment proceedings, considered adequacy of reasoning as an error of law. Popplewell LJ, stressed, at [57], the need to consider judicial reasons fairly and as a whole without being hypercritical. Restraint is required to read reasons benevolently. “Simple, clear and concise” reasoning was to be encouraged to enable to parties to broadly understand why they had won or lost. Further, it should not be assumed that an element of the evidence which was not expressly discussed was thereby left out of account. While these observations were made in the context of employment proceedings, they are of relevance in the immigration and asylum sphere because this is also a jurisdiction in which decisions are made by expert tribunals attenuated by the need to give appeals anxious scrutiny.  

13. R (Iran) also stressed the particular importance attached to country guidance in the context of assessing whether a decision involved a material error of law. After summarising the authorities touching on the importance of such guidance, Brook LJ said this at [27] of his judgment:

It will have been noticed that Ouseley J said that any failure to apply a CG decision unless there was good reason, explicitly stated, for not doing so would constitute an error of law in that a material consideration had been ignored or legally inadequate reasons for the decision had been given. This suggestion has now been repeated and adopted in para 18.4 of the AIT Practice Direction. We have no hesitation in endorsing that approach. It would represent a failure to take a material matter into account, which is the third of the generic errors of law we have identified […]

This uncontroversial legal principle was recently restated by the Upper Tribunal in AAR (OLF - MB confirmed) Ethiopia CG [2022] UKUT 00001 (IAC) where, after setting out the circumstances in which it would be appropriate to depart from country guidance, the following guidance was given at paragraph [5] of the headnote:

Any failure by the Tribunal to apply a CG decision unless there is good reason, explicitly stated, for not doing so might constitute an error of law in that a material consideration has been ignored or legally inadequate reasons for the decision have been given.

14. In view of the centrality of the challenge that the judge failed to apply, or departed from, binding country guidance, it is worth recalling what guidance was provided by LH and IP:

(1) Having regard to the provisions of articles 365 and 365A of the Sri Lankan Penal Code, gay men in Sri Lanka constitute a particular social group.

(2) ‘Gay men in civil partnerships’ in Sri Lanka do not constitute a particular social group for the purposes of the Refugee Convention. The Sri Lankan authorities’ failure to recognise alternative marital and quasi-marital statuses such as civil partnership or homosexual marriage which are available in other countries of the world does not, without more, amount to a flagrant breach of core human rights.

(3) Applying the test set out by Lord Rodger in the Supreme Court judgment in HJ (Iran) & HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31, in general the treatment of gay men in Sri Lanka does not reach the standard of persecution or serious harm.

(4) There is a significant population of homosexuals and other LGBT individuals in Sri Lanka, in particular in Colombo. While there is more risk for lesbian and bisexual women in rural areas, because of the control exercised by families on unmarried women, and for transgender individuals and sex workers in the cities, it will be a question of fact whether for a particular individual the risk reaches the international protection standard, and in particular, whether it extends beyond their home area.

(5) Where a risk of persecution or serious harm exists in an appellant’s home area, there may be an internal relocation option, particularly for individuals returning via Colombo from the United Kingdom.

[Emphasis added in bold]

15. Before turning to the important question of whether the judge failed to apply the above country guidance in his assessment of risk and internal relocation, we can succinctly address the contention that his decision involved a departure from the headnote copied above. We are satisfied that there is no substance to any suggestion that the judge’s decision in any way amounted to a departure. At no point in the decision does the judge intimate that country conditions have changed in Sri Lanka such that the guidance ought not to be followed. The judge expressly referred to the headnote at [16] of his decision as part of the legal framework to be applied. The observations he went on to make about conditions on the ground at [21], [32], [33], [35], [37]-[38] are not out of step with those guiding principles such that they can be properly described as points of departure.

16. The real question to be decided in the resolution of the challenges to the reasoning underpinning the conclusions on the appellant’s Refugee Convention case is whether the judge failed to apply the guidance. The respondent’s first point is that the judge’s finding that there was a reasonable degree of likelihood he would be at risk of persecution on return to his home area failed to apply the guidance that, in general, the treatment of gay men in Sri Lanka does not reach the threshold of persecution. This submission loses sight of the fundamental precursor to this part of the guidance in using the term “in general”. The guidance pointedly does not purport to suggest that gay men are never subject to persecution in Sri Lanka. It would be surprising if it did, and would have rendered redundant much of what the rest of the guidance provided. In short, the use of the “in general” qualification is suggestive of an analytical starting point which may give way on the particular facts of a given case. The judge explained in great detail why he reached a judgement which meant that the starting point could not be the ending point on the evidence he assessed. He referred to his acceptance of the broad thrust of the appellant’s narrative evidence about the treatment he had already suffered at the hands of the community who had discovered his sexuality and the complicity of the local authorities in subjecting him to further unwarranted official attention. The judge was entitled in law to come to the fully reasoned conclusion that the appellant had shown a reasonable degree of likelihood that he was at risk of persecution even if this necessarily involved an ending position which differed, on a fact-sensitive assessment, from the starting position identified in the guidance. It is perfectly clear why the judge reached this conclusion as demonstrably clear from the detailed analysis summarised above from the decision. The respondent is not in a state of uncertainty about why they lost on this point to make good its case that the reasoning was defective in law.

17. In the context of the challenge to adequacy of reasoning going to the assessment of risk, the respondent argued that the judge did not address his mind either to the generality of available official protection nor to the approach taken by the local state actors before he left the country. This argument is exceptionally difficult to reconcile with the position taken in the reasons for refusal letter, and prevailing authority, about the issues-based approach the First-tier Tribunal is required to adopt. At page 50 of the composite error of law hearing bundle, the refusal letter makes it abundantly clear that the appellant could not avail himself of sufficient state protection. This explains why it was not one of the three principal controversial agreed and articulated in the appeal proceedings. When we consider this procedural backdrop and the guidance provided in Lata (FtT: principal controversial issues) [2023] UKUT 00163 (IAC), we are left in no doubt that it is wholly inappropriate to seek to introduce this issue on appeal against a decision faithfully taken with reference to principal controversial issues where this point was simply not in dispute.

18. Turning to the challenge to the internal relocation reasons, it is tolerably clear to us that the opening brief paragraph of this part of the decision is an oblique reference to the very point that the respondent now states was left out of account. In starting his analysis by referring to Colombo as being “more tolerant and “gay-friendly” than rural areas”, albeit with reference to the CPIN rather than expressly to the country guidance, the judge was indirectly making the very point made in LH and IP that Colombo is not as harsh a proposition as elsewhere for the purposes of internal relocation. However, the country guidance should not be misunderstood to mandate a reasonable internal relocation option for all those who face a risk of persecution in their home area. Instead, it merely states that there may be such an option.

19. We have no doubt that the judge might have expressed himself with greater clarity on this issue and that it would have strengthened, in a presentational sense, his decision to have expressly referred to the country guidance at this juncture and state in terms why the particular facts of this case demanded a different outcome to the general proposition that internal relocation to Colombo may be reasonable. However, it would have added little of substance to have predicated his analysis of internal relocation by reiterating the country guidance (which he had already set out at [16] of his decision). The argument to the contrary rests on the kind of formulaic and hypercritical assessment which the authorities have repeatedly and emphatically counselled against. What matters is the cogency and clarity of the rationale for finding that internal relocation was not reasonable and the identified factors which were productive of undue harshness on the facts of this case. The judge’s clear and structured reasons for finding that this particular appellant could not reasonably relocate to Colombo were open to him on the available evidence and were not tantamount to disregarding the applicable country guidance. We reject the suggestion that the judge failed to apply, in substance, the country guidance by which he was bound.

20. Whilst the respondent refers to evidence of tolerance of LGBTQ+ persons in Colombo in the CPIN in this aspect of her grounds, it is clear from the decision that the judge did consider this at §35 of his decision but that he also went on to consider other aspects of the CPIN.

21. The respondent asserts that the findings in respect of inability of the appellant to manage his health are unsupported by evidence. We disagree with this submission as we note that the Judge referred to the CPIN in making his findings. Mr Richardson also took us to the medical evidence before the FtT. This showed that the appellant was said to have poor mental health and physical health, that he suffered a collapse and unresponsive episode in August 2024 which led to hospital admission owing to severely high blood pressure, that his blood pressure had remained very high since this, that he had struggled with medication management and failure to take his medication could lead to severe health implications and mortality, his GP records showed his brother and sister-in-law had accompanied him to medical appointments. The respondent also argues that the appellant’s health did not meet the Article 3 ECHR threshold as set out in AM (Article 3 ECHR, health cases) Zimbabwe [2022] UKUT 131 IAC. The respondent has here failed to note that the tests for internal relocation are different to those in an Article 3 ECHR health claim.

The approach of the judge to the issue of relocation was entirely in line with Januzi v Secretary of State for the Home Department [2006] UKH 5, [2006] 2 AC 416 at [21] and AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49, [2008] 1 AC 678 at [5]. There was a fair assessment of the relevant facts and the judge had regard to the situation of the particular appellant including his gender, experience, health, skills, family ties, conditions in Sri Lanka.

22. The respondent can be in no doubt about why the internal relocation argument went in the appellant’s favour.

23. The respondent was clear that the challenge to the adequacy of the reasoning going to the Article 8 ground of appeal stood or fell with the outcome of the challenges to the reasoning going to the protection ground. It follows from the foregoing analysis and conclusions that this discrete complaint must also fall away.

Notice of Decision

The decision of the First-tier Tribunal did not involve an error of law and we accordingly dismiss the appeal.

Paul Lodato

Judge of the Upper Tribunal
Immigration and Asylum Chamber

12 May 2025