UI-2025-005003

• Status of case: Unreported
• Hearing date: 22 Oct 2026
• Promulgation date: 29 Oct 2026
• Publication date: 13 Nov 2026
• Last updated on: 13 Nov 2026

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-005003
First-tier Tribunal No: PA/56508/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
29th October 2026

Before

UPPER TRIBUNAL JUDGE O’BRIEN

Between

AK
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Devlin, advocate, instructed by McGlashen MacKay Solicitors
For the Respondent: Mr A Mullen, Senior Home Office Presenting Officer

Heard at George House, Edinburgh on 22 October 2026

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 a decision of the respondent dated 23 February 2024 to refuse his protection and human rights claim made on 18 November 2022.
2. The appellant is a citizen of Sri Lanka who claimed to support Tamil separatism and so be at risk of persecution by the State authorities. In addition to claimed political activities in Sri Lanka, the appellant relied on sur place political activities in support of the Transnational Government of Tamil Eelam (TGTE).
3. The appellant’s appeal was dismissed on all grounds by the First-tier Tribunal (FtT) in a decision dated 17 June 2025. However, that decision was set aside by Deputy Upper Tribunal Judge Maik KC in a decision dated 1 June 2026 (annexed below). She agreed that the FtT erred in its assessment of the risk arising to the appellant from his sur place activities.
4. At the hearing before me, Mr Mullen accepted that the appellant had been involved in sur place activities in support of the TGTE and continued so to be. He confirmed that the respondent had never suggested that these activities were insincere and would not do so now. He indicated in the circumstances that the respondent no longer resisted the appeal.
5. That was, I agreed, an appropriate stance. The country evidence was clear that the Sri Lankan authorities were likely already to be aware of the appellant’s support for the TGTE and would, in any event, be likely to discover that support during his return. He would at least be watched by the authorities. He was likely to continue his support, unless dissuaded out of fear of persecution. If he continued his support, he would be at real risk of serious harm. Either way, the appellant was entitled to recognition as a refugee (applying HJ (Iran) [2010] UKSC 31).
Notice of Decision
1. The decision of the First-tier Tribunal involved the making of an error on a point of law and is set aside.
2. The decision is remade and the appeal is allowed on Refugee Convention grounds.



Sean O’Brien

Judge of the Upper Tribunal
Immigration and Asylum Chamber


23 October 2026


Annex


Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: UI-2025-005003

THE IMMIGRATION ACTS

Before

UPPER TRIBUNAL JUDGE NAIK KC

Between

AK
(ANONYMITY ORDER MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Heard at Field House on 11 March 2026

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.

Representation:

For the Appellant: Mr Heeps, Counsel
For the Respondent: Ms McKenzie, Senior Presenting Officer


DECISION AND REASONS
Introduction
1. The Appellant is a national of Sri Lanka. He appealed against the decision of the Respondent dated of the 23rd of February 2024 to refuse his protection claim that was made on the 18th of November 2022. The appeal was heard on the 11th of June 2025 in Glasgow and it was dismissed in a determination dated 17 June 2025 by First-tier Tribunal Judge Rea (the Judge).
Issues
2. The issue in the appeal before me is whether the Judge materially erred in law in rejecting the Appellant’s appeal for the reasons he gave, which was to find that the Appellant did not have a well-founded fear of persecution on return to Sri Lanka for reason of his perceived political opinion by reason of his sur place political activity in the UK.
Grounds of permission to appeal
3. There is a single ground of appeal on which permission was granted, namely whether the Judge misdirected himself as to the applicable country guidance of KK and RS (Sur place activities: risk) Sri Lanka CG [2021] UKUT 130 (IAC) with respect to paragraphs [27] to [31] of his determination.
4. Permission was refused by the FTTJ Farmer on 23 July 2025 but was granted on renewal by Upper Tribunal Judge Lindsley in a decision date 2 December 2025. She stated at paragraph 3:
(i) It is argued that the test from KK and RS, namely “whether an individual has or is perceived to have undertaken a “significant role” in Tamil separatism” was not applied at paragraph 28 of the decision and further, it is not sufficiently reasoned as to how it was concluded that the test was not met at paragraph 29 of the decision.
(ii) It is argued that there was evidence of the Appellant’s sur place activities in the form of a letter from the TGTE, his TGTE membership card and photographs of him at pro-Tamil events which supported his political opinions being genuine.
(iii) The Appellant has no passport and it is argued that if he were returned to Sri Lanka, his documentation would lead to the discovery of his profile as the Sri Lankan authorities have a sophisticated network of intelligence gathering in the UK diaspora. As evidenced by paragraph 405 of the country guidance decision.
5. At paragraph 4 of her decision UTJ Lindsley concluded that it was arguable that there was no reasoning by the Judge as to why the Appellant’s accepted attendance at the UK's demonstrations and membership of the TGTE does not support the account of events in Sri Lanka at paragraph 23 of the decision. (I note however that this was not the formulation of the grounds of appeal as to the genuineness of his political opinions set out at paragraph 6). It was therefore arguable that the reasoning may undermine the conclusion that the Appellant’s history in Sri Lanka was not credible. In addition she stated further, it was also arguable that there was insufficient reasoning at paragraph 29 of the decision with respect to why the Appellant’s TGTE membership does not suffice to find that he would be perceived to have a significant role in Tamil separatism by the Sri Lankan authorities were he to be returned there.
The Judge’s findings
6. The Judge’s findings as to issue (i) the credibility of the Appellant’s past account in Sri Lanka applying the burden of proof per the guidance in JCK(section 32 NABA 2022) Botswana [2024] UKUT 00100) (as noted in paragraph 8), were:
(i) He attached no weight to the alleged inconsistency relied on by the Respondent between the Appellant’s screening interview and his asylum interview as to the reasons for his arrest when determining the overall credibility the his account (paragraph 14)
(ii) He attached no weight and found no inconsistency (as claimed by the Respondent) in the Appellant’s account of how he was able to escape detention by payment of a bribe (paragraph 15)
(iii) He accepted that the Appellant had a plausible explanation as to how he was identified as being a person of interest to the authorities in Sri Lanka, as a person who had attended demonstrations there calling for economic reform and not Tamil separatism. He had a business pass which allowed him to travel and that is how the army were able to identify him as someone who travelled to Colombo at the relevant time and when asked about that he admitted that he had done so (paragraph 16)
(iv) He accepted that per GJ [2013] UKUT 319 (IAC) and KK and RS this indicates the Government’s focus on preventing the resurgence of the LTTE and the revival of the civil war in Sri Lanka. In that context it was plausible that the authorities would question someone arrested in connection with political protest about the LTTE notwithstanding t that the protest was directed towards other issues (paragraph 17).
(v) In reliance on GJ (para 170) he rejected the Respondent’s submission that the Appellant’s ability to leave Sri Lanka on his own passport undermined his credibility and attached no weight to that issue (paragraph 18).
(vi) With respect to the scarring report of Dr Dignon as to the Appellant’s account of being tortured in detention with reference to the scar on his left wrist being a cigarette burn, he found that whilst the expert found that this was highly consistent with the Appellant’s account, given the expert’s comments that this was a common area for self-infliction by a right-handed person, the Judge found that this undermined the credibility of the Appellant’s account of suffering this injury whilst in detention and attached little weight to this report in supporting the credibility of the Appellant’s account as a whole (paragraph 19)
(vii) With respect to the allegation raised in his evidence at the hearing that the Appellant had been sexually abused in detention which had not been raised before, nor with the medical experts, whilst recognising that he may have been reluctant to share details of intimate abuse, the late disclosure did not undermine the credibility of his account, but the Judge attached no weight to this aspect of the claim (paragraph 20).
(viii) With respect to the expert report of Dr Chris Smith, he found that his conclusions were wrong as to the likelihood of the Appellant not having a valid Sri Lankan passport said to be on the basis that he had been in the UK since 2009, whereas in fact the Appellant entered the UK in 2022 with a passport. He accepted the reliability of the report in general as regards with the situation generally in Sri Lanka insofar as it is consistent with country guidance (paragraph 21).
(ix) With respect to the expert report of consultant clinical psychologist Mary Ross and her findings that the Appellant fulfils the diagnostic criteria for an adjustment disorder with mixed anxiety and depressed mood, he found that he could attach little weight to her report in terms of the Appellant’s credibility in light of the HA principles on the basis that the Appellant is not under her care and it was not clear that she had had access to his medical records (paragraph 22).
(x) The Respondent did not dispute that the Appellant had attended demonstrations in the UK in support of the TGTE, but the Judge found that neither his attendance at these events nor his membership of the TGTE made it any more likely that his account of events in Sri Lanka is credible (paragraph 23)
(xi) He found that the Appellant’s failure to call his brother who had attended the demonstration in Sri Lanka in 2022 to give evidence was highly relevant to his credibility, despite this not being an issue raised in the refusal letter. He found that this did not operate as a bar to him taking it into account and that the evidence was likely to be relevant to the grounds for refusal in the decision letter and that he attached significant weight to the Appellant’s failure to provide such evidence (paragraph 24).
(xii) He found that with regard to section 8 of the Asylum and Immigration (Treatment of Claimants Etc.) Act 2004 the Appellant’s credibility was damaged by his failure to claim asylum on arrival and his explanation, that he was not familiar with the process and was given bad advice that this might risk him being sent back to Sri Lanka, as to why he did not, was not a reasonable one (paragraph 25).
7. The Judge concluded that whilst his account has been generally consistent throughout the asylum process it was not supported to a significant degree by independent evidence and its credibility is damaged by the Appellant’s failure to call his brother and to claim asylum immediately on arrival in the UK. Therefore he concluded that the Appellant does not genuinely fear persecution for a Convention reason in the event of his return to Sri Lanka (paragraph 26).
8. The Judge’s findings as to issue (ii), notwithstanding his findings as to the credibility of the Appellant’s claim in relation to events in Sri Lanka, as to whether he was nevertheless at risk on account of his sur place activities, following KK and RS, were:
(i) The Appellant’s evidence is that he is a member of the TGTE and is expected to become involved in Heroes [sic] Day and other events. He found that his involvement was limited to attendance at events (paragraph 28)
(ii) He rejected the Appellant’s account that he had posted photographs of himself on open social media regarding such attendance on the basis that he had not been provided with a download of his Facebook profile (paragraph 28)
(iii) He found that the Appellant has not had a significant role in organising or directing events and he has not demonstrated a significant social media profile (paragraph 29)
(iv) In line with KK and RS that the authorities in Sri Lanka view the TGTE with a significant degree of hostility, he found that nevertheless it was not reasonably likely that the authorities would perceive the Appellant to have undertaken a significant role in Tamil separatism (paragraph 29)
(v) He found that even if the Appellant is on a watch list he is not likely to fall within KK and RS Headnote (19) sub-paragraph (i) (paragraph 29)
(vi) He found that if the Appellant came within sub-paragraph 19(ii) as to being at risk of monitoring that this would not amount to persecution or a risk of Article 3 ill-treatment (paragraph 29) (consistent with KK and RS Headnote (22)).
9. Hence he concluded at paragraph 30 that in light of his findings as to the Appellant’s credibility that he is not satisfied that the Appellant is a genuine Tamil nationalist and that the first requirement in HJ(Iran) is therefore not met.
Submissions
10. For the Appellant, Mr Heeps submitted that there was a challenge to the Judge’s findings in relation to the assessment of the Appellant’s sur place activities in the UK. The Judge showed a lack of engagement with the Country guidance case of KK and RS. The reasoning of the Judge leaves the reader in doubt as to why it was that he concluded that there was no risk to the Appellant on account of his sur place activities. The grounds of appeal (at para 6) refer to the case of Wordie Property Co. Ltd v Secretary of State for Scotland 1984 SLT 345 at 348, where (at paragraph 11) the Court concluded that the informed reader must not be left in such doubt. He submitted at paragraphs 29 and 30, that the Judge makes two findings, first, he did not find that the Appellant had undertaken a significant role in the TGTE, and second that he was not a genuine nationalist.
11. Mr Heeps submitted that it is essentially difficult to understand the Judge’s reasoning that the Appellant had no significant role. There was evidence about his sur place activities, evidence in his witness statement at paragraph 19, including attending the opening of the Glasgow branch of the TGTE [page 96]. The Appellant presented evidence that he was a TGTE member. He presented a copy of his membership card. He had attended protests and demonstration in private and public places. The Respondent had accepted (as the Judge noted at paragraph 23) that the Appellant was a member of the TGTE, which is not disputed in the Judge’s findings at paragraph 28. His evidence was that he was expected to participate and that he had a significant role. The TGTE have a very significant role in the Tamil separatist movement as noted by KK and RS. The importance of the TGTE is such a significant factor that they are viewed by the Government of Sri Lanka as a front for the LTTE, which is a proscribed organisation in Sri Lanka. That proposition is not something that is controversial. He further referred to the passages from the expert report of Dr Chris Smith in the composite bundle as to the tensions which are present in post-war Sri Lanka. At paragraph 85 [page 127] he states that “the TGTE diaspora is believed to be an LTTE front organization by the GoSL. It is therefore extremely likely that the Sri Lankan authorities are aware of the Appellant and his sur place activities, which have been plentiful and varied, beyond the TGTE.”
12. At para 102 [page 130] the expert notes: “GJ and Others clearly states that anyone who has a commitment to undermining Sri Lanka as a unitary state will be of adverse interest and this position is adopted by the UT in KK & RS. By definition the TGTE and its members and supporters are actively engaged in working towards a separate Tamil state within Sri Lanka’s border which directly seeks to undermine Sri Lanka. Indeed, in KK & RS the UT considered that the authorities would be highly suspicious of the TGTE as a proscribed organisation who seeks a separate Tamil state”.
13. Dr Smith's opinion was endorsed by the tribunal in KK and RS and the Headnote at (6)states that the TGTE is separatist organisation and it is currently proscribed. In relation to surveillance and monitoring, the Country Guidance case-law makes clear that the Sri Lankan Government make use of ‘stop’ and ‘watch’ lists to monitor those in whom they have an adverse interest. In GJ and Others, it was found – at Headnote (9) :
“The authorities maintain a computerised intelligence-led "watch" list. A person whose name appears on a "watch" list is not reasonably likely to be detained at the airport but will be monitored by the security services after his or her return”.
14. Mr Heeps submitted that the key factors are (i) that the Appellant is a TGTE member, (ii) the TGTE is proscribed, (iii) association with a proscribed organisation is clearly a risk factor on return. The Judge accepted that the Appellant had attended multiple events which were before the Tribunal and this was clearly documented in the various photographs in the Supplementary Bundle, (iv) the GoSL had an extensive intelligence gathering regime which was supported by the findings in KK. With all of this in mind this does not feature in paragraphs 29 and 30 of the determination when one has regard to the Judge’s reasoning there. Whilst Mr Heeps did not speculate on why the Judge made the findings he did as to the Appellant’s having no significant role, the Judge did not find that he was opportunistic or had acted in bad faith. In any event he submitted per KK and RS at [494] that motivation is not relevant:
“in terms of the evaluative assessment of an individual’s profile as it is reasonably likely to be perceived by GoSL, we agree with the appellants’ submission that motivation is not relevant. The reason for this lies within the previous sentence: the critical question is what the authorities will make of the activities in respect of which they have obtained information. They will have little or no inclination to enquire into an individual’s good faith or lack thereof. We acknowledge that there must exist the possibility of opportunistic “hangers on” making out a claim for international protection. Unattractive as this may seem, it cannot act as a valid basis for rejecting a risk”.
15. In this context he sought to challenge the Judge’s finding at paragraph 30 where he concluded that in light of his findings about the Appellant’s credibility of his account in Sri Lanka, that the Judge further concluded without more that the Appellant is not a genuine nationalist and thus he was outside the HJ (Iran) principle, i.e. that if returned, he would not manifest his belief (and that the GoSL would be therefore not be reasonably likely to detect at the same).
16. The final point relied on by Mr Heeps in his grounds of appeal is that the Appellant was not in possession of a valid Sri Lankan passport. He submitted that the evidence before the Judge from the Appellant was that he did not have a passport. (At question 1.7 of his asylum screening interview he stated that it was lost [page 991] although there was a copy of his passport in bundle [page 356]. The Appellant stated that he does not have that passport any longer and hence needs to be documented in order to be removed to Sri Lanka. Moreover at paragraph 16 of his statement [page 988], he stated that this passport had been given to him by an agent with a visa already placed in it. Hence the Appellant would be subject to a redocumentation process even if the passport were genuine because he is not in possession of it and this was not disputed by the Respondent. The redocumentation process is an important “pinch point” per para 411-412 of KK and RS. As part of that process as to his sur place activities the Appellant would have to tell the truth about what he has been doing in the UK since his arrival. The Judge made no finding on this issue – nor is there any record by the Judge as to issue of the loss of the passport in the determination, although as noted above, the Judge made a finding that the expert was wrong to concluded that the Appellant had not had a passport.
17. Hence his submission in conclusion was that this error was material to the determination of the appeal such that it should be set aside and cannot stand. If there were such an error of law, this issue of risk arising from the Appellant’s sur place activity a narrow point and can be retained in the Upper Tribunal for determination for a face to face hearing in Edinburgh. The Appellant can give evidence via interpreter for fresh consideration and further updates on his activities since June 2025. It was noted that any onward appeal right of appeal would be to the Court of Session.
18. Ms McKenzie for the Respondent relied on her rule 24 notice dated 5 December 2025 which addressed the specific points in the grounds. Therein the Respondent relied on paragraph 21 of KK and RS as to the interpretation of “significant role”.
19. Her submission was that the assessment of what constitutes ‘significant role’ is clearly for the Judge to assess and at paragraphs 28-29 the Judge provided adequate reasons as to why he did not accept that the Appellant had a significant role that would bring him to the attention of the authorities. The Respondent further submitted that the grounds and the grant of permission failed to consider that it was perfectly open to the Judge to find that attendance at demonstrations in the UK were for opportunistic reasons. Such attendances for non-genuine reasons cannot lead to an assumption that an Appellant’s account of what occurred in his home country are credible. Again that assessment is for the Judge to make and cannot be interfered with on the basis that a different tribunal may have come to another conclusion.
20. Ms McKenzie addressed the first part of the grounds which is concerned with ground that the Judge misdirected himself as to the test set out in Headnote (20) of KK and RS. As to paragraph 6 of the grounds it was said that it was unclear how the Judge arrived at that conclusion that the Appellant’s political opinions were not genuine.
21. As to the first part of the ground – KK (20) it was argued at paragraph 2 and 3 of the grounds that at paragraph 29 the Judge failed to have regard to KK and RS that the Appellant would nevertheless -will be perceived as a Tamil separatist in light of his role in and activities for the TGTE in the UK (per KK(19). She submitted that paragraphs 2 and 3 are misconceived. The grounds refer to the test in Headnote (20):
(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.
22. The Appellant did not fall within (i) and so the Judge did not have to go on to consider the risk any further. The Judge referred to the watch list and concluded that the Appellant was not likely to fall sub-para(i) identified in (19). This shows that the Judge had regard to the caselaw and followed it. Headnote (20) did not apply here as it only applies if the Appellant falls within (19)(i). Hence there was no material error of law. In terms of the Judge stating at paragraph 29 that Appellant was not at risk of persecution if he were to be monitored should he fall within (ii) and were he to be on a watch list, she submitted that this was a comment not a finding. Her submission was that monitoring does not amount to persecution and the Judge was very clear in his conclusion on that. The findings to the Appellant’s overall credibility are not challenged and he does not have a genuine Tamil nationalist political opinion and thus per re: HJ Iran would not be at risk of persecution for the same.
23. At paragraph 28, the Judge’s reasons are very clear. The Appellant’s evidence is that he was a member of the TGTE and attended the Heroes’ Day and was expected to become involved. That is a finding that his involvement was limited to attendance at events. This was one reason as to why the Judge did not find that the Appellant held a genuine political opinion.
24. As to paragraph 6 of the grounds, the Judge recorded at paragraph 23 was that the Appellant’s membership of the TGTE was insufficient to say that his account of events in Sri Lanka was credible. Membership was not sufficient to show involvement, per KK and RS a person had to show a level of involvement in order to demonstrate risk. Ms McKenzie accepted that the Judge was talking about past events in Sri Lanka at paragraph 23, but the Judge heard oral evidence from the Appellant and found that any events he attended in Sri Lanka were not political but economic. Hence she submitted that even if I were to find that the Judge did not consider the relevance and impact of the current demonstrations in the UK, that membership of the TGTE on its own was not sufficient. KK and RS requires a significant role. She submitted that if I were to find that there was an error and the Judge had made an error in relation to failing to properly consider the current events, this was not material because membership alone is not enough. KK requires a significant role and involvement and membership is not, she submitted, the main factor going to risk, relying on para 219 of KK:
219: the appellants submitted that there was no basis for a significant change in the country guidance set out in GJ. At the same time, they contended that decision-makers would benefit from “greater clarity” as to who was and was not reasonably likely to be at risk on return by virtue of diaspora activities. In particular, it was said that the term “significant role” used in paragraph 356(7)(a) of GJ should be understood to encompass “any actual or perceived involvement in or linked to diaspora activism of which the authorities are aware” and that “known membership of, affiliation to or involvement with any diaspora organisation” would lead to risk (we note that this is later qualified in the skeleton argument by the insertion of “separatist” between “any” and “diaspora”). The term was not limited to activists with a “high profile”, those regarded as “prominent”, or those with a “leading role” in diaspora activities. It is accepted that an extremely low level of involvement in activities, described as “the most trivial level” (defined as, for example, a brief attendance at a single demonstration or making a token financial donation), would not place an individual at risk.
25. As to his findings at paragraph 28, nowhere in the determination does the Judge find that the Sri Lankan authorities had become aware of any significant role on the part of the Appellant. Even if the judge had not been specific in determining the Appellant’s precise role in the UK there was nothing to say that even if he had, that the authorities would be aware of this.
26. As to the third point in the grounds which was that the Appellant would be exposed to risk by the trigger point at the airport, the Judge relied on KK and RS headnote (19) that the Appellant would be on a watch list but would not be at risk of persecution as a result of this monitoring. Paragraph (1) of the headnote in KK states:
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.
27. The Appellant had said he was involved in the UK, this is not the focus of GoSL which is to prevent resurgence of separatist movement in Sri Lanka. The Judge made a finding as to the credibility of his past account in Sri Lanka which is not challenged and at paragraph 30, he made a finding that he is not a Tamil nationalist. Hence any errors would not be material because of that unchallenged credibility finding. The Judge had found the Appellant’s past account not to be credible and the Respondent’s position was that it was not plausible that he was not using own passport. As to the question of whether the Appellant would have to be redocumented and whether he would thus be at risk, the Appellant is not a genuine Tamil nationalist and would not be at risk at this trigger point. The issue of the passport goes to risk. The Judge found not he was not at risk, so no risk arises re: the lack of a passport. The Respondent submitted that the Appellant must have had passport and there is no risk in the redocumentation process for that reason.
28. Ms McKenzie submitted that if I were to find an error of law, then the appeal should be retained in the Upper Tribunal as there was only a narrow issue to be determined. The credibility findings are unchallenged, hence this could be dealt with by way of submissions only. If it was said that there was further evidence to be called this should be country evidence and/or country expert evidence only, however she disagreed with the 2nd category and submitted that this was not necessary.
29. In reply Mr Heeps submitted that the first test for ‘significant role’ as the country guidance makes clear at para 455 is not a high bar.
30. This conclusion followed from para 219 in KK and RS which was a summary of that appellant’s submissions recording those at risk:
The appellants submitted that there was no basis for a significant change in the country guidance set out in GJ. At the same time, they contended that decision-makers would benefit from “greater clarity” as to who was and was not reasonably likely to be at risk on return by virtue of diaspora activities. In particular, it was said that the term “significant role” used in paragraph 356(7)(a) of GJ should be understood to encompass “any actual or perceived involvement in or linked to diaspora activism of which the authorities are aware” and that “known membership of, affiliation to or involvement with any diaspora organisation” would lead to risk (we note that this is later qualified in the skeleton argument by the insertion of “separatist” between “any” and “diaspora”). The term was not limited to activists with a “high profile”, those regarded as “prominent”, or those with a “leading role” in diaspora activities. It is accepted that an extremely low level of involvement in activities, described as “the most trivial level” (defined as, for example, a brief attendance at a single demonstration or making a token financial donation), would not place an individual at risk.
31. Nowhere in the determination does the Judge address the issue of the Appellant’s lost passport and the issue of redocumentation pre-return as a result and the risk at the point of return. Were an error of law to be found, the Appellant has advised that he has further evidence he would seek to adduce in relation to further demonstrations that he has attended.
Analysis
32. The single ground of appeal is that the Judge misdirected himself as to the applicable country guidance. This is then broken down into 10 paragraphs concluding that the Judge did not properly apply the country guidance of KK and RS for the following reasons:
33. First that in paragraph 28 the Judge’s findings as to the Appellant not having a significant role in organising or directing events in the UK and/or not demonstrating a significant social media presence failed to apply to the test in Headnote (20) of whether an individual has, or is perceived to have, undertaken a “significant role” in Tamil separatism is flawed.
34. This is not designed to be an onerous test in respect of the level of activity undertaken. The key issue is whether the Appellant would be or would be at risk of being perceived on return to Sri Lanka.
35. The Upper Tribunal in KK and RS confirm at paragraph [455]: ‘It is clear to us that "significant role" should not, and was never intended to, require an individual to demonstrate that they have held a formal role within an organisation’ and at paragraph [457] ‘Nor should the term "significant role" denote the need for an individual to show that their role (whether formal or not) has been "high profile" or "prominent" to the extent that these descriptions might suggest a position of leadership or, for example, particularly substantial media exposure or organisational duties’. For this reason, the test to be applied is not a rigorous or onerous test. The Appellant is not required to show that he holds a political role or that he is a major player.
36. Here the accepted evidence is that he is a member of the TGTE (which is and remains a proscribed organisation) and he has been attending a number of public and private events and public protests in support of Tamil nationalism in the UK, supported by the evidence in the bundle before the Judge which is not disputed which included photographs of the Appellant at various events including TGTE commemorative events and protests.
37. The Judge erred in finding that the Appellant was not at risk on account of his sur place activities in the UK. The Judge found that his involvement was limited to attendance at TGTE events including Heroes Day. However the Appellant has attended pro-Tamil protests and demonstrations and he is also a member of a proscribed organisation, the TGTE. The evidence of his activities was unchallenged by the Judge at paragraph 28, save as to the finding as to his claimed social media profile.
38. Hence whilst the Judge rejected the Appellant’s past account of his arrest, detention and torture in Sri Lanka for the detailed reasons he gave, no such reasons were given in relation to his conclusions at paragraph 30 for rejecting him as a genuine as a Tamil nationalist in the UK. Notwithstanding his accepted activities for the TGTE as a member attending events in the UK, the Judge rejected his claim to be a genuine nationalist only because of his earlier rejection of his past events in Sri Lanka. In that context I note that the Judge at paragraph 23 had stated:
“The respondent does not dispute that the appellant has attended demonstrations in the UK in support of the TGTE. I do not find that his attendance at these events nor his membership of the TGTE makes it any more likely that his account of event since Sri Lanka is credible”.
39. Whilst he may have been entitled to so conclude in respect of his past account (and this is not challenged) in my judgment the Judge was not entitled without more reasoning to conclude, as he did at paragraph 30, simply on the basis of his rejection of that account, that the Appellant was not a genuine Tamil nationalist, when set against his membership and accepted activity for the TGTE and his attendance at pro-Tamil demonstrations in the UK. Whilst the Judge rejected his past account where he claimed to have attended a demonstration in Sri Lanka in support of economic reform and not Tamil separatism, this of itself does not justify a conclusion that his activity in the UK is not one of genuine nationalism as a TGTE member.
40. As noted above whilst the Judge was not satisfied overall, for the reasons he gave, that the Appellant had a genuine fear of persecution in Sri Lanka arising from that claimed history, as he concluded at paragraph 26, this does not address the risk arising to him by reason of his sur place activity. Importantly in that context the Judge’s findings as to the Appellant’s claim at paragraph 28 does not fully or properly reflect the evidence that was before him which was not disputed. In paragraph 19 of his witness statement the Appellant states that since he has been in the United Kingdom he has been active in terms of attending pro-Tamil events in the UK. In 2022 and 2023 he attended the Heroes’ Day event in Glasgow and this was to pay his respects to those who died during the war and to pay respect to those heroes who died for the Tamil cause. He also stated that he attended an event for the opening of the TGTE branch in Glasgow which was in March 2024. He stated that the TGTE are an organisation that are fighting for the rights of Tamils. They have a branch in London and now they are now opening a branch in Glasgow and he attended the first meeting for this. He went there to help set up the meeting and to take part in the discussions. He is a TGTE member and he has been given me an ID card. He stated that he strongly believes that the events that he is attending are being monitored by the Sri Lankan authorities because of the fact that he says they were shared on social media and the authorities are monitoring this. I also note that in the photographs in the bundle before the Judge the Appellant is pictured with photographs of the ‘heroes’ who are being commemorated and also at a public pro-Tamil demonstration.
41. Whilst the Judge acknowledges at paragraph 29 that the Sri Lankan authorities view the TGTE with a significant degree of hostility with reference to the guidance in KK and RS, his reasoning as to Appellant not having a ‘significant role’ against the KK test set out in Headnote (21) and in light of the evidence presented to him which he did not dispute (save as to his social media profile on the basis that the Appellant’s profile was not provided to him) is flawed when properly considered against those factors set out there:
(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.
42. Here as to (i) the TGTE as an organisation is proscribed and membership of it in and of itself will be relatively significant in terms of the level of adverse interest reasonably likely to be attributed to an individual associated with it. As to (ii) and (iii) the type and extent of his activities these were public Heroes’ Day events organised by the TGTE, pro-Tamil demonstrations supporting Tamil Eelam (i.e. Tamil separatism) and private meetings organising TGTE branch in Scotland. As to (iv) the duration of activities the Appellant has been involved with the TGTE for around 3 years, from 2022 to 17 June 2025 (the date of the determination). Hence whilst as to (v) his history in Sri Lanka was not accepted, this is only one of the factors that is relevant to this assessment as a whole.
43. In any event even if (which I have not accepted) the Judge was entitled at paragraph 30 to conclude that the Appellant was not a genuine Tamil nationalist, the further issue in any event is how he would be perceived by the Sri Lankan authorities at the point of return in light of his accepted UK activities, which are reasonably likely to be monitored, and where in that context his motivation is irrelevant. He failed to adequately address that risk against the above factors whether they were caried out in good faith or bad faith or were opportunistic.
44. Second in relation to the crucial issue as to whether the Appellant did or did not have a valid Sri Lankan passport, or whether for the purposes of return he was required to be re-documented in the United Kingdom by the Sri Lanka authorities, the Judge failed to make any clear finding as to whether he accepted this aspect of the Appellant’s account and if so how this affected any risk assessment on return.
45. This is a key factual and legal omission (as noted in paragraph 7 of the grounds) given the relevance of this as per the Headnote (10) and (11) in KK and RS. Further whilst those in possession of a valid passport are not interviewed at the Sri Lanka High Commission (SLHC) it is noted there that 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).
46. Hence expressly the Headnote states at (11):
“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”
47. The Judge failed to do this and this was clearly material factor in the determination of the appeal, irrespective of his rejection of the Appellant’s credibility as to his past account in Sri Lanka or the genuineness or otherwise of his Tamil nationalism.
48. Alternatively had the Judge accepted that the Appellant did not have a passport, as noted in the grounds at paragraph 7, there was no analysis of how the Appellant’s interview with the Sri Lankan High Commission may lead his sur place activities becoming known to the GoSL. The accepted position in those circumstances is that he would have had to attend an interview at the Sri Lankan High Commission in London (“SLHC”) as he required a Temporary Travel Document (“TTD”), per Headnote KK and RS (10).
(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.
49. What is clear from Headnote (12) KK and RS clearly state:
“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.
50. There is no clear finding from the Judge either way in relation to the issue of the passport and the ensuing inquiries or process as noted above. As I have found above, the Judge’s summary of the evidence at paragraph 28 as to his sur place activities does not reflect the detail of the Appellant’s account and evidence in that regard. I cannot accept that, because of the adverse credibility findings as to his past account, that the error is not material to the outcome. The question of sur place activity has to be addressed and considered against the evidence of the Appellant’s activities, how this risks being perceived by the GoSL and what information may be known to the authorities in the process of any re-documentation in the UK and/or at the point of return. This is a clear and material error of law, essential as it is to the question of risk on return on the basis of the Appellant’s perceived political opinion.

Notice of Decision
1. The decision of the First-tier Tribunal involved the making of an error of law and is set aside to be remade in the Upper Tribunal in relation to his reasoning in paragraphs 28 and 29 of the determination and his assessment of the risk per KK and RS arising from the Appellant’s sur place activities in the UK. Notwithstanding the rejection of the Appellant’s account in Sri Lanka this is a material error of law.
2. The findings of fact by the Judge as to the Appellant’s historical account in Sri Lanka are not challenged in this appeal and remain. The findings at to the Appellant’s sur place activities in the UK and his genuineness as a Tamil nationalist at paragraph 30 and any risk arising therefrom set out at paragraphs 28 and 29 are set aside. The appeals falls to be re-made on those issues alone.
3. The Appellant has indicated that there is further evidence that he would wish to present to the Upper Tribunal although no rule 25 notice has been filed to date.

Directions
1. The appeal is allowed on the basis of a material error of law. The appeal shall proceed in the Upper Tribunal.
2. The Appellant may file any further evidence if so advised 21 days before the resumed hearing. There is no limitation on further oral evidence from the Appellant on that issue.
3. Re-list for half a day with a Tamil interpreter.


Signed: S Naik KC

Deputy Upper Tribunal Judge Naik KC


1 June 2026