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

Later developments may make existing asylum country guidance arguably too narrow. Evidence of a current international inquiry, evidence given to it, and persecution of comparable witnesses can raise an important point of principle, particularly where the tribunals below have not addressed the issue adequately. A challenge concerning diaspora activities may also be arguable where insufficient weight may have been given to organisational membership and the outcome of another ground could affect the overall risk assessment. Permission to appeal was granted on both grounds. The court made no final determination of asylum entitlement or risk on return.

Two Sri Lankan brothers challenged the refusal of their asylum claims. Their cases relied on alleged LTTE-related activities and mistreatment in Sri Lanka, evidence given to the United Nations inquiry on Sri Lanka through the ICPPG, and diaspora activities including membership of the Transnational Government of Tamil Eelam.

The First-tier Tribunal dismissed their appeals, and the Upper Tribunal dismissed their appeals against that decision. Permission to appeal was refused on paper, and the applications were renewed before the Court of Appeal. The central issues were whether evidence concerning the later United Nations inquiry raised an arguable risk category beyond that identified in GJ and Others Post Civil War Returnee Sri Lanka CG [2013] UKUT 00319, and whether the tribunals had properly assessed the applicants’ diaspora activities.

1. Disposition. Permission to appeal was granted on both grounds. The court was concerned only with arguability and the second appeals test. It did not determine whether either applicant was in fact at risk on return or entitled to asylum.
2. Evidence given to the United Nations inquiry. The country guidance in GJ and Others Post Civil War Returnee Sri Lanka CG [2013] UKUT 00319 identified as a risk category persons who had given evidence to the Lessons Learned and Reconciliation Commission implicating the Sri Lankan authorities in alleged war crimes. The applicants’ evidence to the UNOISL through the ICPPG post-dated that guidance. The Court of Appeal in MP and NT [2014] EWCA Civ 829 had previously regarded the possibility of a different inquiry and an expanded risk category as vague and speculative. The judge considered that the relevant circumstances had since materialised: there was a current inquiry, the first applicant was a witness likely to be asked to give evidence in person, and there was evidence that witnesses within Sri Lanka had suffered persecution.
3. The First-tier Tribunal had treated the first applicant’s concerns as speculative, partly because his written evidence had not been produced. The Upper Tribunal referred to the issue but failed adequately to determine the challenge to that reasoning. The question whether witnesses to the UNOISL were exposed to a risk comparable to witnesses to the earlier commission therefore raised an important point of principle.
4. Diaspora activities. Although initially sceptical, the judge considered it arguable that insufficient weight had been given to the applicants’ involvement with the Transnational Government of Tamil Eelam, particularly that of the second applicant. The issue had been considered to some extent in UB v Secretary of State [2017] EWCA Civ 85. Success on the first ground could also affect the assessment, viewed in the round, of the applicants’ diaspora activities and whether they fell within an existing or further risk category.
5. Order. Permission to appeal was granted.

1. Court of Appeal (Civil Division): Permission to appeal granted on both grounds on renewal.
2. Upper Tribunal (Immigration and Asylum Chamber): Appeals dismissed on 29 June 2016.
3. First-tier Tribunal: Appeals dismissed on 16 February 2016.