MP & Anor v Secretary of State for the Home Department

Country guidance may depart from UNHCR guidance where an expert tribunal considers all the evidence, has a rational evidential basis for its conclusions and sufficiently explains its approach. For Tamil returnees to Sri Lanka, past LTTE links, including more elaborate links, do not alone establish present risk. The decisive inquiry is whether the authorities would perceive the returnee as posing a current or future threat to the integrity of the state. Diaspora activism is the principal, but not exclusive, basis for that perception.

Subsidiary protection under Council Directive 2004/83/EC does not extend to cases where removal engages article 3 solely through illness, mental health or suicide risk rather than a need for international protection.

The Upper Tribunal promulgated new country guidance on the risk facing Tamil returnees to Sri Lanka in [2013] UKUT 00319 (IAC). It replaced earlier guidance and identified persons perceived as posing a present threat to the integrity of Sri Lanka as a principal risk category.

MP and NT appealed against the dismissal of their asylum appeals. They challenged the guidance as unduly restrictive when compared with UNHCR guidance and criticised the treatment of returnee decisions, NGO material, diaspora activity and potential war-crimes witnesses. NT also challenged the assessment of his personal risk. MP, whose removal had already been found to engage article 3 because of mental illness and suicide risk, claimed subsidiary protection under Council Directive 2004/83/EC.

1. Generic challenge dismissed. The Upper Tribunal was entitled to adopt country guidance less generous than the UNHCR Guidelines. UNHCR material commands considerable respect, but its weight remains for the tribunal assessing the evidence. The Upper Tribunal had a rational evidential basis for finding that the Sri Lankan authorities had shifted their focus from historic LTTE involvement to present or future threats to the unitary state. Its explanation, although capable of being fuller and more direct, was sufficient.

2. The guidance establishes that past LTTE activism, even involving the more elaborate links identified by UNHCR, does not by itself create a present risk. Diaspora activism, actual or perceived, is the principal indicator that a returnee may be regarded as a current threat. It is not an absolute prerequisite. Paragraph 356(7)(a) is disjunctive and can encompass an atypical case in which other evidence shows that the authorities would perceive a person as having a significant role in renewed hostilities within Sri Lanka.

3. The Upper Tribunal adopted an unduly narrow approach when it treated recent unreported tribunal determinations as inadmissible. A documented pattern of such decisions can materially assist the formulation of country guidance. The error was immaterial because the undisputed tabular analysis had been admitted and given some weight, while the underlying decisions would have had limited value in context.

4. The Upper Tribunal was entitled to give reduced weight to composite reports and other NGO evidence because of small samples, extensive redaction, methodological concerns and the inability to test some witnesses. The possible risk to future war-crimes witnesses or persons wishing to speak publicly was hypothetical or unsupported by sufficiently concrete evidence. The issue might require reconsideration on later evidence.

5. NT’s appeal allowed and remitted. The Upper Tribunal materially erred by inferring from NT’s absence from the rehabilitation programme that he had not been of sufficient concern to the authorities. His bribed release occurred while selection for rehabilitation or prosecution was continuing. That erroneous premise also affected the assessment of his mother’s evidence.

6. MP’s appeal dismissed. His historic LTTE involvement and absence of later activity did not satisfy the asylum guidance. Article 3 protection based on mental illness and suicide risk did not make him eligible for subsidiary protection. Read with its recitals, Council Directive 2004/83/EC addresses a need for international protection and does not encompass health or suicide cases arising from naturally occurring illness and inadequate treatment resources.

1. Court of Appeal (Civil Division): The generic challenge to the country guidance was dismissed. NT’s individual appeal was allowed and remitted to the Upper Tribunal. MP’s asylum and humanitarian-protection appeal was dismissed.
2. Upper Tribunal (Immigration and Asylum Chamber): In [2013] UKUT 00319 (IAC), the tribunal promulgated replacement country guidance for Sri Lanka, dismissed NT’s appeal, dismissed MP’s asylum appeal, and allowed MP’s appeal under article 3 on mental-health and suicide-risk grounds.