Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-001598
First-tier Tribunal No: PA/59727/2024
LP/07186/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

30th September 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE IQBAL

Between

RK
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Ms McCarthy, Counsel, instructed by MTC Solicitors
For the Respondent: Mr Tufan, Home Office Presenting Officer

Heard at Field House on 21 July 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant (and/or any member of his family, expert, witness or other person the Tribunal considers should not be identified) 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 (and/or other person). Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
Factual and Procedural Background
1. The appellant appeals, with permission, against the decision of a judge of the First-tier Tribunal ("the judge"), promulgated on 16th January 2026, dismissing the appeal on asylum, humanitarian protection and human rights grounds. Permission to appeal was subsequently granted by the Upper Tribunal on the 8th May 2026. The appeal arose in the context of a protection claim in which the appellant asserted that he would be at risk from the Sri Lankan authorities on account of an actual or imputed political opinion.
2. The appellant’s claim was advanced on the basis that he would be at risk on return as he had previously been a fisherman working alongside his father in the northern region of Sri Lanka, offering assistance to Tamil civilians facing violence and helping those seeking refuge, including by assisting when boats broke down. Following the end of the civil war, he returned to the routine of his work. In 2015, he travelled to the United Kingdom on a seaman’s visa as an engineer and upon completion of his contract, returned to Sri Lanka.
3. He thereafter resumed working on boats. In January 2019, against the background of a changing political climate, he states he was abducted in a white van and blindfolded, accused of having links to the LTTE and detained for nearly two weeks. He subsequently left Sri Lanka and returned to the United Kingdom on 10th February 2019. In the United Kingdom, the appellant has been involved in sur place activities.
The Decision of the First-tier Tribunal
4. The appeal was heard on 27th November 2025, the appellant attended and gave evidence with the assistance of an interpreter. The judge recorded at [6] that the issues in dispute were whether the appellant was of interest to the Sri Lankan authorities and detained as a consequence, whether he would be at risk of persecution in Sri Lanka and whether there were any private life considerations arising from his case.
5. From [52] to [65], the judge identified a number of matters which adversely affected the appellant's credibility, including the absence of corroborative and medical evidence that could reasonably have been obtained, the delay in claiming asylum and matters arising from the appellant's immigration history. At [66], the judge noted that the appellant had not held political beliefs or opinions in Sri Lanka. Whilst accepting that the appellant's description of abduction by "white vans" was consistent with background evidence, the judge was not satisfied that the events described by the appellant, namely his abduction, detention and ill-treatment, were credible.
6. The judge also rejected the appellant's sur place claim. At [67], the judge stated: "I considered there was merit in Mr Grewal's submission that the appellant's support of the Tamil cause is opportunistic." At [69], the judge accepted that the appellant had become involved in sur place activities, observing that "the question to be considered is whether the appellant's sur place activities place him at risk." At [71], the judge noted that there was no indication that the appellant had joined the TGTE and that he was not of Tamil ethnicity. Taking into account headnote 7(a) of GJ, the judge at [73] concluded that the available information and evidence did not support a finding that the appellant would be perceived as having a significant role in relation to post-conflict Tamil separatism. At [74] having considered headnote 7(d), the judge concluded that there was no indication that the appellant's name appeared on a computerised stop list. The judge further noted at [75] that the appellant had been able to leave Sri Lanka using his own passport, which was indicative of the fact that he was not on a stop list due to any prior events, nor did the judge anticipate that he would be at risk under that category by reason of his sur place activities. In making this assessment, the judge concluded at [77] that the appellant's activities were of a low level and were not such as to bring him to the adverse attention of the Sri Lankan authorities on return. At [78], the judge concluded that the appellant had failed to establish that there would be very significant obstacles to his integration in Sri Lanka.
7. Accordingly, the appeal was dismissed.
Appeal to the Upper Tribunal
8. The grounds can be summarised as follows. First, that the judge failed to consider relevant evidence when rejecting the appellant’s account of past persecution in Sri Lanka, including background evidence and the appellant’s explanation as to why he came to the attention of the authorities in 2019, some ten years after he had assisted Tamil people. Second, it was argued that the judge failed to consider relevant evidence and relevant country guidance when rejecting the risk said to arise from the appellant’s sur place political activities in the United Kingdom. Third, it was contended that the judge failed to determine a material matter, namely the sincerity of the appellant’s political beliefs and any resulting risk applying HJ (Iran) v SSHD [2010] UKSC 31. Fourth it was argued that the judge failed to consider relevant evidence in assessing the appellant’s claim under Article 8 ECHR.
9. Permission to appeal was granted by the Upper Tribunal on 8th May 2026. The grant of permission stated:
"I am satisfied having read the grounds that it is arguable that the First-tier Tribunal did not expressly place into its assessment evidence and objective evidence favourable to the appellant. In the circumstances I consider it proper to grant permission to appeal. It will have to be for the appellant to establish materiality at the error of law hearing."
The Hearing
10. I had before me the composite bundle of 287 pages. There was no rule 24 response, although Mr Tufan confirmed that the respondent opposed the appeal on all grounds.
11. Ms McCarthy, on behalf of the appellant, relied upon the grounds of appeal. Her submissions focused principally upon the appellant's sur place activities. She submitted that the judge had failed adequately to consider the photographic evidence and the nature of the appellant's participation at pro-Tamil events. Relying upon Danian v SSHD [1999] EWCA Civ 3000, she argued that even opportunistic activities could give rise to a real risk on return. She further submitted that the judge had failed to make a clear finding as to whether the appellant's support for the Tamil cause was genuine. Whilst at [67] the judge stated that there was merit in the submission that the appellant's support for the Tamil cause was opportunistic, it was submitted that this did not amount to a clear finding. Alternatively, if it were to be read as a finding that the appellant's beliefs were not genuinely held, insufficient reasons were given. It was submitted that these errors were material because the appellant had attended pro-Tamil events, including Heroes Day and Mullivaikkal commemorative events and if those activities represented genuinely held political views, the risk assessment on return required consideration in accordance with HJ (Iran) v SSHD [2010] UKSC 31, [555] of KK and RS (Sur place activities: risk) Sri Lanka CG [2021] UKUT 130 and the respondent's CPIN material concerning Tamil separatism.
12. Mr Tufan resisted the appeal. He submitted that the judge had not materially erred in law. The judge had considered the evidence as a whole and made adverse credibility findings which were open to her. In relation to the sur place claim, he submitted that the photographs relied upon by the appellant, supported the judge's conclusion that the activities were opportunistic. He referred to various photographs within the bundle and submitted that the judge's findings at [67] were a proper reflection of the evidence. He further submitted that the country guidance made clear that a significant role was required before risk arose on return and that the judge had properly concluded that the appellant's activities were of a low level.
13. In reply, Ms McCarthy submitted that the respondent's criticisms of the photographs had not been raised before the First-tier Tribunal and had not been the subject of a rule 24 response.
14. I noted at this stage that, at [69], the judge had expressly accepted that the appellant had become involved in sur place activities and that the issue identified by the judge was whether those activities placed him at risk on return.
15. At the end of the hearing I reserved my decision.
Analysis and Conclusion
16. I have considered the First-tier Tribunal decision, documentation that was before it, the grounds of appeal and the submissions made at the hearing before reaching my decision.
17. I remind myself that the appellate jurisdiction of the Upper Tribunal is concerned with errors of law and not with the mere correctness of the outcome reached by the First-tier Tribunal. The expertise of the First-tier Tribunal in making findings of fact and evaluative assessments has repeatedly been emphasised by the higher courts and, more recently, by the Court of Appeal in MH (Bangladesh) v Secretary of State for the Home Department [2025] EWCA Civ 688 (see paragraph 29).
18. The Court of Appeal considered the guidance of the Supreme Court in HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22, which reiterated that judicial caution and restraint was required when considering whether to set aside a decision of a specialist tribunal. The following guidance was given at [72]:
(i) They alone are the judges of the facts. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. It is probable that in understanding and applying the law in their specialised field the tribunal will have got it right. Appellate courts should not rush to find misdirection’s simply because they might have reached a different conclusion on the facts or expressed themselves differently - see AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49; [2008] AC 678 per Baroness Hale of Richmond at para 30.
(ii) Where a relevant point is not expressly mentioned by the tribunal, the court should be slow to infer that it has not been taken into account - see MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49; [2011] 2 All ER 65 at para 45 per Sir John Dyson.
(iii) When it comes to the reasons given by the tribunal, the court should exercise judicial restraint and should not assume that the tribunal misdirected itself just because not every step in its reasoning is fully set out - see R (Jones) v First-tier Tribunal (Social Entitlement Chamber) [2013] UKSC 19; [2013] 2 AC 48 at para 25 per Lord Hope
19. Accordingly, I turn to grounds two and three together, as they are closely linked insofar as they raise an alleged error arising from the judge's consideration of the appellant's sur place activities.
20. At [67], having considered the appellant's sur place activities and attendance at a number of events, the judge stated: "I considered there was merit in Mr Grewal's submission that the appellant's support of the Tamil cause is opportunistic." That finding must be read alongside [69], where the judge stated: "I accept that the appellant has become involved in sur place activities, the question to be considered is whether the appellant's sur place activities place him at risk."
21. Reading the decision fairly and as a whole, I am satisfied that the judge made a finding contrary to the complaint in Ground 2 at [14](i) – (iv) that whilst the appellant had engaged in sur place activities, his support for the Tamil cause was opportunistic. Ground 3 therefore cannot succeed on the basis that the judge failed to determine that issue. The judge proceeded to consider whether, notwithstanding her view as to the appellant's motivation, his sur place activities gave rise to a risk on return, an approach consistent with the principles in Danian v Secretary of State for the Home Department [1999] EWCA Civ 3000, namely that the relevant question was not simply the appellant's motive for participation but whether the activities undertaken would place him at risk on return.
22. I note the judge’s findings on the appellant’s sur place activities from paragraphs [68] - [77] and take into account that at the outset at [70], the judge directed herself the relevant country guidance of KK and RS. At [72], she recorded the submission that the appellant fell within the risk categories identified in GJ at headnote 7(a) and 7(d), namely those perceived to have a ‘significant role’ in post-conflict Tamil separatism and those appearing on a computerised stop list. But concluded at [73] that the appellant would not be perceived to have a significant role. This also disposes with Ground 3.
23. I consider the complaint raised in Ground 2 at [14](v) and (vi), that the judge did not engage with the country guidance, concerning the monitoring by the Sri Lankan authorities of diaspora activities. GJ at [354] recognises that attendance at protests may be monitored and KK and RS at [406] records that such monitoring has increased since GJ.
24. It was further submitted that the judge failed to assess the appellant's attendance at TGTE events, including Heroes Day 2023 and the Mullivaikkal Genocide Exhibition, against the background evidence. In particular as, KK and RS records that the TGTE is proscribed in Sri Lanka and regarded by the authorities as an LTTE front organisation: see [536(6)]. The CPIN Tamil Separatism (21 August 2025) further notes the close monitoring of the Tamil diaspora in the United Kingdom and indicates that adverse interest is not confined to individuals with a high public profile.
25. The submissions are also consistent with headnote [21] of KK and RS, which makes clear that the question whether an individual has played a "significant role" is a fact-sensitive assessment. Formal membership, prominence or high-profile activity are not prerequisites. The assessment requires consideration of a range of indicators, including:
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
26. I accept that the country guidance does not confine risk to individuals occupying leadership or prominent positions. Rather, the assessment requires consideration of the cumulative effect of the relevant indicators identified in headnote [21], with no single factor being determinative.
27. Whilst the judge referred to KK and RS, I am not satisfied that the required assessment was undertaken. Although she concluded that the appellant's activities were "low level" and that he would not be perceived as having a significant role in post-conflict Tamil separatism, the decision contains no discernible analysis of the indicators identified in headnote [21]. In particular, there is no consideration of the significance of the TGTE as a proscribed organisation in Sri Lanka, the nature and extent of the appellant's participation in TGTE-related events, the duration of his activities or the extent to which those activities may have come to the attention of the Sri Lankan authorities. Nor does the decision explain how those matters were weighed in reaching the conclusion that the appellant would not be perceived as having a significant role. Given that the sur place claim formed a central component of the appellant's case on risk on return, I am satisfied that this omission amounts to a material error.
28. In relation to Ground 1, I have considered the submission that the judge failed to engage with background evidence said to support the appellant's account of why he came to the attention of the Sri Lankan authorities. However, the evidence relied upon at [10] of the grounds, namely the CPIN Tamil Separatism at [3.5.10], refers to relatives of former LTTE members who have actively participated in commemorations or protests, particularly around symbolic dates, and who may consequently face monitoring, harassment or questioning by the Sri Lankan authorities. That evidence does not correspond with the appellant's claimed profile. The judge was also aware of the appellant's explanation that the alleged adverse interest arose as a consequence of changing political circumstances and was not required to accept that explanation. Properly analysed, this ground amounts to a challenge to the judge's factual assessment rather than identifying any error of law. I therefore reject Ground 1.
29. Ground 4 concerns Article 8. I do not accept that the judge's Article 8 assessment is, of itself, vitiated by error. However, those findings cannot properly be separated from the judge's overall assessment of the appellant's circumstances. Given my conclusion that the decision must be set aside owing to a material error in the assessment of risk arising from the appellant's sur place activities, I set aside the Article 8 findings as well.
30. I have considered whether any of the judge's findings may properly be preserved. The material error identified is confined to the assessment of the appellant's sur place activities and their consequences on return. It does not undermine the judge's findings regarding the appellant's account of events in Sri Lanka. Accordingly, I preserve the findings at [52]-[66], including the finding that the appellant did not come to the adverse attention of the Sri Lankan authorities in 2019 as claimed.
31. I also preserve the finding at [69] that the appellant had participated in sur place activities. However, I do not preserve the findings at [67]-[77] insofar as they concern the nature, significance and consequences of those activities. The assessment of the appellant's motivation for engaging in such activities, their significance when considered in light of the applicable country guidance and the resulting risk on return all require fresh determination.
Disposal
32. Further findings of fact will therefore be required concerning the appellant's sur place activities, including any activities undertaken since the hearing before the First-tier Tribunal and the significance of those activities when assessed against the relevant country guidance.
33. Having regard to the general principle set out in paragraph 7 of the Senior President’s Practice Statements and the guidance in AEB v SSHD [2022] EWCA Civ 1512 (see also Majera v SSHD [2025] EWCA Civ 159) and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC)), I have considered whether the appeal should be remade in the Upper Tribunal or remitted to the First-tier Tribunal. In light of the further fact-finding that is required regarding the appellant's sur place activities and the assessment of risk on return, I am satisfied that remittal to the First-tier Tribunal is the appropriate course.
Notice of Decision
The decision of the First-tier Tribunal involved the making of a material error of law, and the decision of the First-tier Tribunal is set aside.
The findings at [52]-[66] and [69] are preserved.
The appeal is remitted to the First-tier Tribunal for rehearing on the preserved findings identified above.

Judge Iqbal

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

28 September 2026