Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001151

First-tier Tribunal No: PA/64737/2023
LP/03872/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

19th May 2025

Before

UPPER TRIBUNAL JUDGE OWENS

Between

YY
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Nathan, Counsel, instructed by York Solicitors
For the Respondent: Ms Ahmed, Senior Presenting Officer

Heard at Field House on 12 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

1. The appellant appeals with permission against the decision of First-tier Tribunal Judge Parkes dated 16 January 2025 dismissing his appeal against the respondent’s decision dated 27 November 2023 refusing his protection and human rights claim.
2. The appellant is a Sri Lankan national of Tamil ethnicity who claims to be at risk of serious harm in Sri Lanka because of his close association with an individual who he claims was fundraising for the LTTE. He claims that the authorities visited his home after he last left Sri Lanka accusing him of being associated with this individual and accusing him of also raising funds for the LTTE. He also relies on his “sur place” activities in the UK. The judge found that the appellant was not at risk of serious harm because he did not have a profile in Sri Lanka nor in the UK that would have come to the attention of the Sri Lankan authorities and that his sur place activities in the UK were not genuinely motivated.
3. The grounds of appeal assert that the judge made a material error of fact, by stating at [20] that “there was no suggestion that Suren was in Qatar at the same time as the appellant” when the appellant’s evidence in his witness statement was that he was invited by Suren to join him in the company Suren was working for in Qatar and stayed in his room.
4. Secondly, it is asserted that the judge errs at [21] by pointing to an inconsistency in the evidence which was not in fact an inconsistency.
5. Thirdly, it is said the judge failed properly take into account the appellant’s evidence which was that the risk to him arose as a result of the appellant visiting Suren in Sri Lanka during his last visit. The appellant’s evidence was not that he was at risk prior to this time and therefore it is not inconsistent that the authorities did not detain him when he entered Sri Lanka.
6. The judge also failed to take into account the appellant’s evidence in relation to why he became involved in activities in UK which was set out at paragraphs 32 to 34 of his witness statement. Alternatively, the judge failed to give adequate reasons for finding that it was “difficult to comprehend” why he had become involved in protest.
7. The judge took a selective view of the evidence of the appellant attending protests and was factually incorrect when she stated that it is not easy to make out the appellant when there are numerous photographs in the bundle where the appellant is clearly identifiable.
8. Finally the judge treated the appellant’s lack of genuine political motivation as determinative of the appeal, contrary to the country guidance and objective evidence from which it is clear that the most important factor is how the appellant’s activities are viewed by the Sri Lankan authorities.
9. First-tier Tribunal Judge Turner granted permission on all grounds in a lengthy decision.
10. At the outset of the error of law hearing, Ms Ahmed for the respondent conceded that the judge erred at [20] and [21] and that the first two grounds were made out. She left the issue of materiality to me and did not make any vigorous submissions on materiality apart from acknowledging that the appellant’s connection to Suren is central to his asylum claim and if the judge has made errors of fact when evaluating this relationship and overlooked his evidence this may have infected the judge’s view of the evidence.
11. I am satisfied that the respondent’s concession is entirely appropriate. The appellant manifestly gave evidence that he was with Suren in Qatar at the same time as Suren and the judge’s finding at [20] is erroneous. Further, I am satisfied that the judge erred at [21] because there was no inconsistency between the evidence of the appellant and his father. The appellant’s evidence was that he had not been raising funds for the LTTE in Qatar but both the appellant’s and his father’s evidence was that this is what he was accused of by the authorities when his home was raided.
12. I am also satisfied that the judge appears to have mistaken the timeline in relation to the appellant’s evidence about when the Sri Lankan authorities became aware of his connection to Suren. The appellant’s evidence was that this followed him visiting Suren when he was in Sri Lanka shortly before returning to the UK. The appellant does not assert that he was at risk when he entered Sri Lanka.
13. The appellant’s evidence at paragraphs 14 and 15 of his statement was that he had previously been arrested and beaten by the police whilst in detention in 2013. He gave a long explanation as to why he became involved in politics in the UK, having spoken to the TGTE MP about the human rights activities of the organisation and to other torture survivors who had similar experiences to him. I am satisfied that the judge has not adequately reasoned why this explanation is “difficult to comprehend”. Finally, the judge has not adequately explained why the extensive activities undertaken by the appellant in the UK for a proscribed organisation, the TGTE (including holding banners) would not place him at risk (even if his political views were not genuine).
14. In summary, I am satisfied that all of the grounds are made out and that the errors are material to the outcome of the appeal.
15. Mr Nathan was keen to proceed directly to a re-making hearing at the Upper Tribunal. However this was problematic because the appellant was not in attendance. Ms Ahmed submitted that she had only received the appellant’s bundle at the outset of the hearing and was not in a position to proceed to re-making. She needed time to prepare the case because the respondent would want to cross examine the appellant. She noted that he had used an interpreter at the hearing at the First-tier Tribunal and no interpreter had been booked. On this basis, I decided that it was not fair or in the interests of justice to proceed with the re-making hearing even should the appellant arrive at the hearing late.
16. Ms Ahmed submitted that remittal to the first-tier Tribunal would be the appropriate course of action and Mr Nathan was in agreement.
17. I have had regard to Begum (remaking or remittal) Bangladesh [2023] UKUT 00046. When deciding whether to depart from the general principle that a case will be retained in the Upper Tribunal, I must consider the nature of the unfairness and the extent of the impact on the findings overall. In my view, the judge’s errors fed into a negative view of the appellant’s credibility and also touched on the assessment of risk. No factual findings are preserved and extensive factual findings are needed.
18. I am satisfied that in these circumstances, a fresh hearing before a different judge is required to provide the appellant with a fair hearing.
Notice of Decision
19. The decision of the First-tier Tribunal involved the making of an error of law.
20. The decision of the First-tier Tribunal is set aside in its entirety with no findings preserved.
21. The decision is remitted to the First-tier Tribunal for a de novo hearing before a judge other than First-tier Tribunal Judge Parkes.

R J Owens

Judge of the Upper Tribunal
Immigration and Asylum Chamber

12 May 2025