Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-004173
(PA/53899/2024)

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 8th February 2026

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

TP (SRI LANKA)
(anonymity order made)
Appellant
And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr Devlin of Counsel instructed by McGlashan MacKay Solicitors, Mr
Heap Solicitor
For the Respondent: Mr Mullen, Senior Home Office Presenting Officer

Heard at Melville Street, Edinburgh on 4 February 2026

Anonymity

Unless and until a tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

DECISION AND REASONS

1. The Appellant is a national of Sri Lanka born in 1976. He appeals with permission against the decision of the First-tier Tribunal to dismiss his appeal on protection and human rights grounds.
2. The basis of the Appellant’s claim was that he has a well-founded fear of persecution by the Government of Sri Lanka (GOSL) for reasons of his historical support for the Liberation Tigers of Tamil Eelam (LTTE) and/or his current membership of the Transitional Government of Tamil Eelam (TGTE).
3. The Respondent accepted that the Appellant is Tamil, and that he is what is termed a ‘low level’ supporter of Tamil separatism, but she did not accept that the GOSL have any interest in him, or that it would do in the future. The matters in issue before the First-tier Tribunal were therefore:
i) whether the Appellant’s account of past persecution by the GOSL was true and/or
ii) whether his current involvement with TGTE in the United Kingdom would place him at risk if returned to Sri Lanka today.
4. In respect of the historical account the Tribunal gave several reasons for rejecting it. The Appellant had, it found, been inconsistent about what brought his family to the attention of GOSL back in 1999, he had given inconsistent dates for his claimed detentions and varying accounts of the extent of his own involvement with the LTTE. On his evidence he had been living in Dubai for several years, regularly returning to Sri Lanka, which the Tribunal found to be inconsistent with him having a genuine fear of harm. The grounds do not take issue with any of that reasoning and so the Tribunal’s findings in respect of the narrative advanced by the Appellant are preserved.
5. This appeal is therefore concerned wholly with the Tribunal’s approach to the sur place claim. By way of background, that claim was as follows. The Appellant had provided a letter and membership card confirming his association with the TGTE. A large number of photographs showed him at various TGTE events in the UK were supplied, two of which were said to be screenshots from a video aired on a Tamil television network. These depicted the Appellant wearing a Tamil Eelam scarf and being interviewed by a reporter, whilst actively participating in a protest. The Respondent did not take issue with any of that evidence. A report by acknowledged country expert Chris Smith opined that the Appellant’s presence at such protests was very likely to have come to the attention of the GOSL.
6. It is further relevant to note, for the purpose of this appeal, that the Appellant had generally sought to rely on medical opinion that he was suffering from major depressive disorder and anxiety. The Tribunal rejected this diagnosis, finding it to be unsupported by the Appellant’s GP records, which made only brief reference to low mood and depression, and showed him to be on a minimal dose of antidepressant medication. Although the records showed the Appellant to have twice requested a referral to the specialist services of ‘Freedom From Torture’, both of these requests post-dated the Respondent’s decision to refuse to grant protection. As we shall see , the Tribunal drew significant adverse inference from this.
The Grounds of Appeal: Discussion and Findings
7. It is perhaps helpful to begin with grounds (ii) and (iii), since Mr Mullen for the Respondent agrees that they are made out. These are concerned with the Tribunal’s assessment of the photographs, screenshots and the expert report of Dr Smith. Despite having directed itself to the country guidance in KK and RS (Sur place activities: risk) Sri Lanka CG [2021] UKUT 00130 (IAC) the Tribunal concluded that this evidence could not establish a real risk of persecution on return. Mr Devlin’s central complaint about this conclusion is that in its analysis the Tribunal plainly failed to have regard to relevant matters. In particular:
i) The Tribunal finds it cannot be satisfied, on the basis of the photographs, that the Appellant had indeed been involved in numerous events over a 2½ year period as claimed. In doing so the Tribunal failed to have regard to the fact that the photographs are dated, show the Appellant in different locations, wearing different clothes, in varying weather conditions and with different people;
ii) In its assessment of the video screenshots the Tribunal found the Appellant to have produced “little evidence to support his claim to have been involved in a television broadcast, or that such was widely shared”. This overlooks the fact that the screenshots themselves bear the logo of the television company, and figures appear on the screen showing how many viewings it had (13k after being posted 1 day ago);
iii) When Dr Chris Smith reviewed this evidence for the purpose of preparing his report he had concluded [at his §20] “it is extremely likely that the Sri Lankan authorities are aware of the Appellant and his sur place activities, which appear to have been plentiful and are ongoing”. Although the Tribunal makes reference to Dr Smith’s analysis in respect of the historical claim, its decision nowhere refers to this opinion on the sur place claim.
These failings being compounded by the fact that none of that evidence had been contested by the Presenting Officer before the First-tier Tribunal, Mr Mullen accepted that these were material errors in law.
8. The parties before me were in agreement that these errors were a sufficient basis to set aside the First-tier Tribunal, so I need not deal in any detail with ground (i), save to say that I certainly agree that the reasoning at paragraph 33 of the First-tier Tribunal is hard to follow. That passage reads:
“33. Whilst I have found that the threshold has been met as regards fear of persecution, I have also found that the appellant has exaggerated to bolster his claim on medical grounds. As a consequence, I consider it reasonably likely that he has also attended protests and events in an attempt to further bolster his claim, rather than in pursuit of any strongly held belief in Tamil separatism”.
9. Mr Devlin submits that this is reasoning that no reasonable tribunal could have employed. The finding that the Appellant may have sought to exaggerate the extent of his depression cannot logically, of itself, lead to a conclusion that the Appellant does not actually have a commitment to the cause of Tamil separatism. In his submissions Mr Devlin emphasised the Tribunal’s use of the words “as a consequence”. He conceded that a generally poor finding of credibility could certainly be relevant to whether these political views were genuinely held, but it was incumbent on the Tribunal to consider all of the evidence in the round, including the evidence of the Appellant’s apparently extensive activities in the UK. As it stands, the finding makes little sense. I agree.
10. As I note above, this appeal is only concerned with one aspect of the claim, namely whether the Appellant’s involvement with the TGTE in the UK is reasonably likely to place him at risk of harm upon return to Sri Lanka. That being the case the parties invited me to retain this matter in the Upper Tribunal and re-make the matter on the evidence before me.
The Decision Re-Made
11. I begin by reminding myself of the relevant country guidance, as set out in KK and RS. Insofar as is relevant to this appeal the headnote reads:
In broad terms, GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) still accurately reflects the situation facing returnees to Sri Lanka. However, in material respects, it is appropriate to clarify and supplement the existing guidance, with particular reference to sur place activities.
The country guidance is restated as follows:
(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.
(2) GoSL draws no material distinction between, on the one hand, the avowedly violent means of the LTTE in furtherance of Tamil Eelam, and non-violent political advocacy for that result on the other. It is the underlying aim which is crucial to GoSL’s perception. To this extent, GoSL’s interpretation of separatism is not limited to the pursuance thereof by violent means alone; it encompasses the political sphere as well.
(3) Whilst there is limited space for pro-Tamil political organisations to operate within Sri Lanka, there is no tolerance of the expression of avowedly separatist or perceived separatist beliefs.
(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.
(6) The Transnational Government of Tamil Eelam (“TGTE”) is an avowedly separatist organisation which is currently proscribed. It is viewed by GoSL with a significant degree of hostility and is perceived as a “front” for the LTTE. Global Tamil Forum (“GTF”) and British Tamil Forum (“BTF”) are also currently proscribed and whilst only the former is perceived as a “front” for the LTTE, GoSL now views both with a significant degree of hostility.
…
(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.
(13) GoSL operates a general electronic database which stores all relevant information held on an individual, whether this has been obtained from the United Kingdom or from within Sri Lanka itself. This database is accessible at the SLHC, BIA and anywhere else within Sri Lanka. Its contents will in general determine the immediate or short-term consequences for a returnee.
(14) A stop list and watch list are still in use. These are derived from the general electronic database.
…
(16) Those in possession of a valid passport will only be questioned on arrival if they appear 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.
…
(27) There is a reasonable likelihood that those detained by the Sri Lankan authorities will be subjected to persecutory treatment within the meaning of the Refugee Convention and ill-treatment contrary to Article 3 ECHR.
(28) Internal relocation is not an option within Sri Lanka for a person at risk from the authorities.
…
12. It is not Mr Devlin’s case that the Appellant would be on a ‘stop list’, since there is no evidence that the GOSL have issued an arrest warrant or similar against the Appellant. He does however contend that the Appellant is reasonably likely to be on a ‘watch list’ and that he is someone who would fall within category (i): someone who, because of his existing profile, would be are deemed to be of sufficiently strong adverse interest to warrant detention. 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. Mr Devlin identifies the following matters as being supportive of his contention that the Appellant would be so perceived by the Sri Lankan authorities:
(i) The Appellant is a member of TGTE;
(ii) That is a proscribed organisation;
(iii) Association with a proscribed organisation is “a relatively significant risk factor”;
(iv) The Appellant has attended numerous TGTE led events in the UK over a significant period of time, and has been interviewed on a Tamil television station;
(v) These activities have included demonstrations, private and public meetings, Heroes Day commemorations, Martyr’s remembrance services, protests outside the Sri Lankan embassy, and the opening of the TGTE offices;
(vi) The GOSL continues to operate an extensive intelligence-gathering regime in the UK 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. This is the finding in KK and RS, and is supported contemporaneously by the expert evidence of Dr Smith.
13. I accept that the Appellant is a member of the TGTE. This is established by the membership card and letter from that organisation which describe him as an “activist”. I have looked at the photographs, alongside the Appellant’s statements and the documents from the TGTE to which I have referred. There are over 100 images, the earliest of which is dated May 2023. These show the Appellant attending indoor events in the company of a number of other individuals, as well as what appear to be large scale demonstrations in Trafalgar Square and outside the Sri Lankan embassy in London; there are a number of images of an event which looks like, and is described as, a children’s sports day, a memorial service at what appears to be a grave or memorial stone, and events in Glasgow. I have also had regard to the screenshots, although Mr Devlin accepted that the full videos were not available. One other image appears as a screenshot with accompanying text on what appears to be a social media post, although neither platform nor poster are identified. I have considered this material in light of the evidence of Dr Smith about the extent to which such activities might become known to the Sri Lankan authorities:
25) The extent to which this intelligence gathering and analysis extends to diaspora activities overseas is now better known and the use of informants was accepted by the Upper Tribunal in KK and RS (para 530). There would be many opportunities for the Sri Lankan authorities to infiltrate the diaspora, via the Tamil paramilitaries that oppose the LTTE, especially former EPDP and PLOTE members (both organisations almost cease now to exist) and due to the cooperation of LTTE cadres, some of them high ranking – one way or another the Sri Lankan authorities have managed to ‘turn’ a large number of former cadres and this may also underlie the improvement in intelligence techniques, an area in which the LTTE excelled. The precise steps by which the Sri Lankan authorities can identify faces on photographs, either from the media or from the Sri Lankan High Commission in London (see below) is not known precisely but there are an increasing number of asylum claims in which I have been involved that strongly suggest that various means of identification have been found.
26) In the UK, for example, the Sri Lankan High Commission in London monitors anti-government demonstrations very carefully, even taking photographs of protestors. Sri Lankan Tamil protestors in Australia have complained of being photographed by men connected to the Sri Lankan government and also complain of intimidation.
27) Obviously, there are close links between the authorities in Colombo and all overseas missions. It is reasonable to assume that all intelligence gathered in London is sent back to the Ministry of Foreign Affairs and then onto the relevant intelligence sections inside the State Intelligence Service (SIS), the CID and TID and the MoD. This was confirmed by a senior SIS officer who reported that the diaspora is highly infiltrated and informants are used to put names to the faces on photographs taken by embassy/High Commission staff. In November 2019 I had the opportunity to speak with the same officer again, on a confidential basis on 9th November 2019. He again confirmed to me the existence of informers who are paid either with money or in kind for their information; over-stayers and those with visa problems are targeted in particular. Informants are also recruited in Sri Lanka before being sent overseas.
28) The information gathered by informants is handed over to the Defence Attaché in the Sri Lankan mission in London and in other cities where the Tamil diaspora is active and of strength. The informants are only known to their ‘handlers’ from the government and operate in intense secrecy. It is the case that the Sri Lankan High Commission London-based Defence Attaché’s job description contains the following instructions, from the top, (sic):
‘… 1) Monitoring any anti-Sri Lanka activities in the UK and reporting to the High Commissioner and through the High Commissioner to the Secretary, Ministry of Defence; Secretary, Ministry of Foreign Affairs; Intelligence Agencies in Sri Lanka and other relevant authorities.
2) Monitoring any LTTE activities in the UK and devising appropriate plan with the coordination of intelligent agencies in Sri Lanka and counter it.
3) Bring to notice to the High Commissioner, in advance, if any anti-government protests which are to be organized, then plan and execute appropriate strategies to counter it, after consulting with the High Commissioner …’
29) Every week the Defence Attaché, who is a representative of either the Army or the SIS, files his/her report to the Chief of National Intelligence (CNI). The CNI is a Presidential appointment and s/he is in charge of directing and overseeing the various intelligence agencies of the Sri Lankan government and reports directly to the Defence Secretary. The NIC analyses the information on diaspora activities and findings are sent to the President and the Secretary of Defence. The findings are a permanent agenda item on the regular meetings of the National Security Council.
30) All suspects identified in this way are placed on the Watch List.
14. Mr Mullen did point out that there are significant risk factors identified in the country guidance that do not have any application here. On the findings made by the First-tier Tribunal, the Appellant has no familial links with the LTTE; nor does he have any profile prior to his departure from Sri Lanka. I have given weight to those matters. Having had regard to the extent of the Appellant’s involvement with TGTE activities in the UK, and having had regard to Dr Chris Smith’s update on the evidence he provided to the Upper Tribunal in KK and RS, I am nevertheless satisfied that it is reasonably likely that the Appellant will have come to the adverse attention of the GOSL through their representatives in the UK, and that he will be perceived as someone who, through the length and extent of his commitment, be perceived as someone who has a ‘significant role’ in a proscribed organisation. In those circumstances it is reasonably likely that he will now be in category (i) of those who find themselves on a ‘watch list’, and according to the extant country guidance, will accordingly be at a real risk of detention and serious harm should he be returned to Sri Lanka.

Decisions
15. The decision of the First-tier Tribunal is set aside.
16. The decision in the appeal is remade as follows: the appeal is allowed.
17. There is an order for anonymity in this ongoing protection appeal.

Upper Tribunal Judge Bruce
Immigration and Asylum Chamber
4 February 2026