Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Case No: UI-2025-005131

(First-tier Tribunal No: PA/59173/2023)

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 14 January 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE FROOM

Between

ND
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms R Akther, Counsel, instructed by M & K Solicitors
For the Respondent: Ms A Ahmed, Senior Home Office Presenting Officer

Heard on 6 January 2026 at Field House

DECISION AND REASONS

1. The Appellant appeals with the permission of the First-tier Tribunal against a decision, signed on 9 June 2023, of a Judge of the First-tier Tribunal (Birmingham) sitting remotely (“the judge”) dismissing his appeal against a decision of the Respondent refusing his protection claim, dated 18 October 2023.
2. The First-tier Tribunal made an anonymity order because this is a protection appeal. I continue that order because the risk of harm outweighs the usual requirement for open justice. As such I am satisfied, having had regard to the guidance in the Presidential Guidance Note No 1 of 2013: Anonymity Orders, that it would be appropriate to make an order in accordance with Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 in the following terms:

“Unless and until a tribunal or court directs otherwise, or the Appellant’s protection claim is finally determined, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him, any of his witnesses or any member of his family. This direction applies to, amongst others, both the Appellant and the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.”
The factual background and First-tier Tribunal decision
3. The Appellant left Sri Lanka on 11 June 2017 and arrived in the United Kingdom on 24 November 2017. He claimed asylum. In brief, he claimed to be at risk of persecution by the government of Sri Lanka due to their perception of his political opinions resulting from his father’s involvement with the LTTE. He claimed to have been arrested by the CID on 10 January 2017, held for six days, beaten and tortured. He said his mother returned from Saudi Arabia and paid a bribe to secure his release. She then sold the house to pay an agent to get the Appellant out of the country. There was a condition of his release that the Appellant report when called upon to do so. The Appellant stayed in Nigeria before coming to the United Kingdom. The CID had issued a case against him alleging he had been involved with weapons. The Appellant said he had not seen his father since 2000, when he joined the LTTE, and he presumed he was dead. He said his sister committed suicide after being detained in 2008.
4. The Respondent disbelieved the Appellant’s account. The Appellant appealed on protection grounds only. The issues in dispute were (1) whether the Appellant was at risk due to his father’s involvement with the LTTE, and (2) whether the Appellant was at risk due to his sur place activities.
5. The judge heard oral evidence from the Appellant and she gave reasons for finding his account not credible. Her reasons included the following:
(1) The Appellant had not provided evidence of his father’s role in the LTTE and he was unable to provide any details [23],
(2) It was “implausible” that the authorities would question the Appellant’s sister in 2008 but wait until 2017 to question him [23];
(3) There was no evidence the Appellant’s older sister had been questioned [23];
(4) The Appellant had not provided evidence that bribes would be accepted to secure the release of a prisoner suspected of links to a terrorist organisation [24];
(5) It was not plausible that the Appellant’s mother was able to fly back, locate the Appellant and secure his release within a couple of days [24];
(6) It made no sense the Appellant’s mother was able to locate his place of detention because the Appellant himself did not know where it was [25];
(7) It was highly unlikely the police would not have proceeded against the Appellant if they believed he had helped his father hide weapons for the LTTE. At the very least, there would have been stringent reporting conditions, whereas the Appellant was not asked to come back even once [26];
(8) There was no evidence from the Appellant’s mother to explain how she was able to raise funds to bribe the police [27];
(9) The letter purporting to have been written by the Appellant’s mother in 2023 made no mention of the Appellant’s arrest and torture, his release or the suicide of her daughter after being detained [28];
(10) The Appellant could not identify a reason the authorities would be interested in him so many years later [29];
(11) Little weight could be given to the letter purporting to have been written by the Human Rights Commission in Sri Lanka because it made no mention of the Appellant’s mother paying a bribe to secure his release [30];
(12) Little weight could be given to the document which the Appellant said was an arrest warrant because such documents were not issued to the wanted person or their family [31], the Appellant had given inconsistent answers as to who informed him of the warrant [31], and the document had not been translated [32];
(13) The medical report written in 2024 did not corroborate the Appellant’s account because it referred to trauma wounds without saying how those wounds were caused [34];
(14) If the Appellant had been under a reporting condition, he would not have been able to pass through the airport on departure without being stopped [35];
(15) The Appellant was found to be in possession of false documents on arrival, relating to a sailor’s course he had undertaken and he had claimed to have worked on a ship in Mongolia, a landlocked country [36];
(16) The one rally the Appellant had produced a photograph of showed him holding a banner referring to environmental issues, whereas the Appellant said the rally was to honour the dead [39]; and
(17) The Appellant was unable to give any details of the other rallies he claimed to have attended [40].
6. In sum, the Judge concluded the Appellant was not a reliable witness and she rejected his account in its entirety.
7. The Appellant appealed on the following grounds:
(1) The judge referred throughout her decision to the LTTE as “a party”, whereas it was a proscribed terrorist organisation and this had tainted her assessment of the Appellant’s credibility;
(2) The judge’s summary of the claim at [20] makes no sense and it was unclear what the judge regarded the Appellant’s claim as being. The sentence in question reads as follows: “He states that he has no LTTE involvement by (sic) the authorities do not accept this as he is Tamil.”;
(3) The judge does not engage with country guidance: GJ and others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC), which showed that bribery was a means of facilitating release from detention, contrary to the judge’s finding;
(4) The judge does not particularise why she found it implausible the Appellant would be arrested in 2017 so many years after his father went missing; and
(5) The judge did not assess the implications of the Appellant’s sur place activities in the context of the country guidance: KK and RS (Sur place activities, risk) CG [2021] UKUT 130 (IAC).
8. Permission to appeal was granted to argue all grounds.
9. The Respondent has not filed a Rule 24 response, but Ms Ahmed confirmed the Respondent opposed the appeal.
The submissions
10. Ms Akther argued the case was clear-cut and the judge’s failure to mention the country guidance cases was a fundamental error. Had the judge understood the context of the Appellant’s position, she could not have made the adverse credibility findings she made. The judge referred several times to the LTTE as “a party”, whereas it was a proscribed organisation.
11. Ms Akther said it was unclear what evidence the judge expected the Appellant to be able to provide of his father’s activities. The Appellant said at interview that the authorities thought his father had weapons at home.
12. Ms Akther pointed out that the case of GJ showed that it was possible to secure release through the payment of bribes.
13. Ms Akther made lengthy submissions on the judge’s assessment of the Appellant’s sur place activities. She pointed out the judge mistakenly referred to the CPIN at [31], when the actual reference was to the Fact-Finding Mission report on Sri Lanka published in January 2020. On her reading, this showed that arrest warrants may be issued to the family, contrary to the judge’s finding. In any event, had the judge referred to KK, she would have known that the Appellant’s attendance at a rally would have placed him at risk. He was shown in photographs, which were stills from YouTube, holding a banner with Tamil Tiger symbols. She also added that environmental issues were as aspect of Tamil liberation. The Appellant would be on the watch list.
14. In relation to the arrest warrant, Ms Akther argued that the document was in fact written in Sinhalese and English, so the judge’s point about a lack of translation fell away.
15. Finally, Ms Akther said the judge had not considered Article 8, even though this was not mentioned in the grounds. She did not pursue the point when Ms Ahmed pointed out that Article 8 had not even been pursued before the judge (see [9]).
16. Ms Ahmed vigorously defended the decision and said there was no error. As an experienced judge, it was inconceivable the judge did not fully appreciate the nature of the LTTE notwithstanding her reference to “the LTTE party”.
17. Ms Ahmed argued the judge had referred to the documents provided, including the Respondent’s bundle, and the refusal letter referenced GJ. The judge could not have been unaware of it. She noted the judge had given multiple reasons for finding the Appellant not credible. She described his evidence as “at times … deliberately vague or evasive and gave totally different answers to questions to avoid giving certain answers or to give himself time to think” [21].
18. On the point about bribery as a means of securing release from detention, Ms Ahmed argued the judge was entitled to rely on paragraph 7.3.4 of the Fact-Finding Mission report (not the CPIN), which stated that,
“HRC told the FFT that there have been allegations that people have been able to bribe their way out of prison, but they have seen no concrete evidence that this has occurred.”
19. Turning to the sur place points, Ms Ahmed noted the grounds accepted there was little evidence in support. There were only five photographs which were all taken at the same event. The Appellant had confirmed the rally was not a political event, but was to honour the dead. KK would not have made a difference because that case showed that a person needed to have had a significant role.
20. In reply, Ms Akther emphasised that the judge’s failure to have regard to GJ was a material error and the decision was unsafe. The judge had not applied the risk factors or appreciated that the government is intent on stamping out separatism. Even minimal sur place activity would be taken seriously and the judge had underestimated its significance.
Decision on error of law
21. I have reminded myself that I must exercise caution when determining whether the First-tier Tribunal has erred in law. I summarise the applicable principles from AH (Sudan) v SSHD [2007] UKHL 49, [2008] 1 AC 678 at [30], MA (Somalia) v SSHD [2010] UKSC 49, [2011] 2 All ER 65 at [45], AA (Nigeria) v SSHD [2020] EWCA Civ 1296, [2020] 4 WLR 145 at [34], KM v SSHD [2021] EWCA Civ 693, [2021] 5 WLUK 93 at [77], and Volpi v Volpi [2022] EWCA Civ 464, [2022] 4 WLR 48 at [2] – [5], as follows:
1. The First-tier Tribunal is an expert tribunal, and an appellate court should not rush to find a misdirection an error of law merely because it might have reached a different conclusion on the facts or expressed themselves differently;
2. The Upper Tribunal should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that they were plainly wrong;
3. The Upper Tribunal should be astute not to characterise as an error of law what, in truth, is no more than a disagreement with its own assessment of the facts;
4. Where a relevant point is not expressly mentioned by the First-tier Tribunal, the court should be slow to infer that it has not been taken into account;
5. The Upper Tribunal is an appellate court, and it is bound, unless there is compelling reason to the contrary, to assume that the First-tier Tribunal has taken the whole of the evidence into consideration. The mere fact that the First-tier Tribunal does not mention a specific piece of evidence does not mean that it overlooked it;
6. Experienced judges in this specialised tribunal are to be taken to be aware of the relevant authorities and to be seeking to apply them without needing to refer to them specifically;
7. Reasons for a judgment will always be capable of having been better expressed. An appellate court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it were a piece of legislation or a contract;
8. Decisions should be respected unless it is quite clear that the First-tier Tribunal has misdirected itself in law; and
9. The focus should be on the way the First-tier Tribunal performed the essence of the task required.
22. What is plain from reading the judge’s decision as a whole is that, having heard and observed the Appellant give evidence, even applying the low standard of proof applicable [17], the judge found the Appellant’s evidence wholly incredible both as to his claimed past experiences in Sri Lanka and his sur place activities in the United Kingdom.
23. The judge expressed herself robustly to reflect her decision [21] and she proceeded to set out a lengthy set of reasons for disbelieving the Appellant and attaching little weight to his evidence, including to the documents he had adduced. These reasons run from [23] to [41] over approximately three pages. Only some of them are challenged.
24. I shall consider the grounds in sequence as they appear in the written grounds seeking permission to appeal (all headed under “Ground 1- Credibility Assessment”), which I appreciate were not prepared by Ms Akther.
25. There is nothing at all in the point that the judge refers to the LTTE as “a party”. I agree it is an odd word to use to designate a militant, separatist organisation which has been proscribed under the Terrorism Act 2000. However, any doubt that a judge of an expert tribunal, experienced in hearing protection appeals, was unaware of the nature of the LTTE is entirely dispelled by the judge’s reference at [24] to prisoners linked to a terrorist organisation being released on a bribe. The judge also shows she was aware of the Fact-Finding Mission report, albeit she refers to a CPIN, which deals extensively with the LTTE.
26. There is clearly a typographical error in the fifth sentence of [20], but I do not think anybody reading the decision would have difficulty in understanding that the judge meant “but” rather than “by”, so that the sentence reads: “He states that he has no LTTE involvement but the authorities do not accept this as he is Tamil”. At this point the judge is simply summarising the account and it is absurd to argue (which Ms Akther did not) that this error means the decision is “totally unclear”.
27. I agree that it would have been advisable for the judge to have referred to country guidance in a case of this nature. A failure to follow country guidance is a clear error of law. In my view, the strongest argument levelled against the decision is that the judge may not have applied GJ when deciding that the Appellant’s account of being released on payment of a bribe by his mother was not credible [24].
28. On the face of it, a bald finding that the Appellant’s account of his release on payment of a bribe was implausible because that could simply not happen in Sri Lanka in 2017 to someone suspected of links to the LTTE, might raise significant concerns about the judge’s reasoning because it is clear from GJ, which was heard in 2013, that the panel accepted that bribery and corruption were pervasive and that release on payment of a bribe was credible in respect of the first appellant.
29. However, that was not the point being made by the judge and, when this decision is looked at more closely, I do not see there was a failure to follow country guidance.
30. Firstly, the judge was shown some evidence postdating GJ suggesting there were no known cases with “concrete evidence” of releases on payment of a bribe.
31. Secondly, and more significantly, the judge gave a number of reasons why she did not find the whole account as given to her of the circumstances of the Appellant’s release credible. She did not accept the Appellant’s mother could have organised his release so quickly [24]. She noted the inconsistency as regards knowing where the Appellant was held [25]. She did not accept he would have been released with only a reporting condition were he believed to have been involved in storing weapons [26]. She noted the lack of explanation as to how the Appellant’s mother was able to raise the money [27]. She noted the mother’s letter failed to mention her role in securing the Appellant’s release [28].
32. There is no merit in the ground that the judge failed to particularise why the Appellant’s account of what happened to him in 2017 was not plausible. This refers to [29] where the judge says,
“The Appellant was asked what had happened in 2017 that meant that after all those years after his father went missing the authorities suddenly arrested him. He had no plausible answer or explanation for this.”
33. I read this as one of a list of reasons provided by the judge for disbelieving the account. The Appellant’s case was that his father disappeared in 2000, his sister was detained in 2008 and he was detained in 2017. Evidently, the Appellant was invited to address the time gap and, following his inability to provide a cogent explanation, the judge drew an adverse inference from it. No further particularisation is required. The judge is criticised for failing to refer to GJ, but had she done so, the following headnote might have been instructive:
“(8) The Sri Lankan authorities’ approach is based on sophisticated intelligence, both as to activities within Sri Lanka and in the diaspora. The Sri Lankan authorities know that many Sri Lankan Tamils travelled abroad as economic migrants and also that everyone in the Northern Province had some level of involvement with the LTTE during the civil war. In post-conflict Sri Lanka, an individual’s past history will be relevant only to the extent that it is perceived by the Sri Lankan authorities as indicating a present risk to the unitary Sri Lankan state or the Sri Lankan Government.”
34. Ms Akther was unhappy with the judge’s rejection of the arrest warrant on the basis it had not been translated, although this was not a point raised in the written grounds on which permission had been granted. It can be dealt with very speedily because there is a section in handwriting (presumably in Sinhalese) on the second page which has not been translated. The judge was plainly entitled to rely on this when giving the document little weight. Similarly, Ms Akther’s submission that the judge had misread the Fact-Finding Mission report [31] is simply wrong. Paragraph 7.2.1 of the report says the A-G’s Department told the team that arrest warrants are not issued to the wanted person or their family. Nothing in the subsequent paragraphs about receipts and summonses displaces that. The document the Appellant produced was an arrest warrant, not a receipt or summons, and the judge was entitled to rely on the background evidence showing such documents are not given to the family.
35. The remaining ground argues the judge failed to assess the risk arising from the Appellant’s sur place activities properly and in the context of the guidance in KK. Again, I start from looking at what the judge actually found. As with his claimed past experiences, the judge found the Appellant’s evidence lacked credibility [38] and she gave cogent reasons for that. She noted the Appellant only provided photographs of one attendance, although he claimed to have attended a variety of them [39]. She noted the Appellant said the photographs were not taken at a political event [39]. She noted he said the event was held to honour the dead, but he was depicted holding a banner protesting about environmental issues [39]. The Appellant was unable to give any details of the dates or locations of any other events he had attended [40].
36. Turning to the question of whether the judge erred by failing follow country guidance, neither representative took me to any specific parts of the decision, but I note the headnote of KK contains the following:
“(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.
…
(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.
…
(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.”
37. On the facts found, the Appellant could not conceivably show a well-found fear based on attendance at a single event at which he did not play a significant role.
38. The judge’s decision does not contain a material error of law and shall stand. The Appellant’s appeal is dismissed.
Notice of Decision
The decision of the First-tier Tribunal dismissing the appeal did not contain an error of law and is upheld.

Signed

N Froom

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

Date 8 January 2026