JA (Sri Lanka) v Secretary of State for the Home Department

In a protection claim based on political activity abroad, an opportunistic claim does not by itself determine the risk on return. The decision-maker must still assess whether the authorities in the country of origin are likely to know of, observe or record the activity and what consequences may follow.

That assessment must reflect the current country situation. Low-level, opportunistic diaspora activism by a person without deep-seated political beliefs may present no material risk where the evidence shows that the foreign authorities are concerned principally with activists who pose a current or future threat to the state. An asserted application of the HJ (Iran) principle cannot succeed where it ignores that country-specific guidance.

The applicant challenged adverse findings made in the First-tier Tribunal and Upper Tribunal concerning his protection claim. The tribunals found that he had attended two demonstrations in the United Kingdom, but that his participation was opportunistic, low-level and did not reflect deeply held political beliefs. The Upper Tribunal inferred that the demonstrations followed his decision to claim asylum.

On a renewed application for permission to appeal, the applicant argued that the tribunals had failed to assess the risk arising from his United Kingdom activism. The application had been adjourned pending the Court of Appeal’s decision in NT and MP [2014] EWCA Civ 829. The applicant then abandoned reliance on the HJ (Iran) point and relied on publicity of his protest activity and the possibility of questioning on return.

1. Application dismissed. The Court of Appeal held that the proposed HJ (Iran) point was untenable in light of the guidance given in NT and MP [2014] EWCA Civ 829 concerning the assessment of risk to Sri Lankan returnees.
2. An opportunistic claim for asylum does not automatically remove the need to assess risk arising from political activity undertaken in the United Kingdom. The relevant inquiry includes whether the authorities in the country of origin are likely to observe and record the claimant’s activity and what consequences would follow: YB (Eritrea) [2008] EWCA Civ 360.
3. That inquiry had to be applied against the country-specific findings made in this case. The tribunals had found that the applicant lacked deep-seated political beliefs and that his participation was low-level. The current evidence indicated that the Sri Lankan authorities’ principal concern, several years after the end of hostilities, was diaspora activism capable of presenting a current or future threat to the unitary state. The applicant did not fall within those categories and his activity was unlikely to attract interest.
4. No question of principle or special reason justified a second appeal. The renewed application was therefore dismissed.

1. Court of Appeal (Civil Division): on 16 July 2015, the renewed application for permission to appeal was dismissed.
2. Court of Appeal (Civil Division): on 20 May 2014, consideration of the renewed application was adjourned pending the decision in NT and MP [2014] EWCA Civ 829; the judgment on that occasion was cited as [2014] EWCA Civ 862.
3. Upper Tribunal (Immigration and Asylum Chamber): made adverse findings that the applicant’s United Kingdom demonstrations were opportunistic, low-level and unlikely to create risk on return.