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

An asylum claimant relying on evidence allegedly supplied to an international inquiry must establish more than the possible hostile content of that evidence. There must be a proper evidential basis for concluding that it reached or was used by the inquiry and that the claimant’s identity is, or may become, known to the authorities. General evidence of diaspora penetration does not by itself establish a real risk. A possible risk category for identified witnesses to future inquiries may require reconsideration where specific evidence is available. Family members do not automatically share the witness’s risk. On the evidence presented below, both appeals were dismissed.

Two brothers from Sri Lanka appealed against the Upper Tribunal’s determination of 29 June 2016, which had rejected their appeals from First-tier Tribunal decisions dated 16 February 2016. The First Appellant relied on alleged evidence supplied through the ICPPG to the UN OISL inquiry, as well as diaspora activities. He argued that this created a risk comparable to the category identified in GJ and Others (post-civil war; returnees) Sri Lanka CG [2013] UKUT 00329 (1AC). The Second Appellant relied principally on association with his brother. The central issue was whether the evidence established that the First Appellant had given evidence to the inquiry and was, or might become, known to the Sri Lankan authorities. Additional OISL and TAG material was not before the tribunals below.

1. Disposition and fresh evidence. Irwin LJ gave the judgment, with Hickinbottom and Underhill LJJ agreeing. Both appeals were dismissed. The Court refused admission of the UN OISL report and the TAG report because they had not been before the tribunals below and would materially change the basis of the case. The appeal was therefore determined on the evidence previously available.
2. Risk principle. The country guidance in GJ and Others (post-civil war; returnees) Sri Lanka CG [2013] UKUT 00329 (1AC) identified a relevant risk category among persons who had given evidence to the LLRC implicating Sri Lankan authorities, but the risk depended on the witnesses being identified to those authorities. General evidence that diaspora organisations had been penetrated by informers did not remove that evidential requirement.
3. Application to the First Appellant. The ICPPG letter confirmed only that written evidence had been provided under oath for submission and that the Appellant might later be called as a witness. No statement was produced, and there was no clear evidence that his evidence had reached or been used by the OISL inquiry, or that it was known to the Sri Lankan authorities. Although the Court accepted that the material was likely to be hostile to those authorities, the adverse credibility findings reduced the likelihood of its future use. The claimed risk was properly characterised as speculative, and the First-tier Tribunal had not erred in dismissing it.
4. Other grounds and future cases. The challenge to the assessment of diaspora activities was parasitic on the first ground and failed with it. The Second Appellant had given no evidence to the ICPPG or OISL. There was no credible basis for treating relatives of witnesses as automatically exposed to the same risk. The Court approved the observations in MP and NT [2014] EWCA Civ 829 that a future inquiry might create a potential risk category, but left that issue for a case supported by specific evidence, particularly evidence that the witness had been identified. Anonymised evidence channelled through organisations was unlikely, without more, to establish the necessary risk.

1. Court of Appeal (Civil Division): On 1 February 2019, both appeals were dismissed and the application to rely on additional OISL and TAG material was refused.
2. Upper Tribunal (Immigration and Asylum Chamber): Upper Tribunal Judge McGeachy rejected the appeals against the First-tier Tribunal’s determinations on 29 June 2016.
3. First-tier Tribunal: Judge Bennett rejected the asylum claims on 16 February 2016, making adverse credibility findings and finding that the activities relied on did not establish a real risk on return.