KK v SECRETARY OF STATE FOR THE HOME DEPARTMENT

The risk to Sri Lankan returnees arising from sur place activity remains fact-sensitive. The relevant question is whether the individual has, or is perceived to have, undertaken a significant role in Tamil separatism. That does not require formal membership, office, leadership, prominence or a high public profile.

The assessment requires an indicator-based evaluation of the organisation concerned, the type, extent and duration of activities, relevant history in Sri Lanka and familial connections. Proscription under the 2012 UN Regulations is significant but not determinative. The HJ (Iran) principle applies where a person genuinely holds separatist beliefs and would conceal them to avoid persecution.

The linked appeals concerned two Sri Lankan nationals of Tamil ethnicity whose protection claims relied principally on political activities undertaken in the United Kingdom for the Transnational Government of Tamil Eelam and other diaspora organisations.

The First-tier Tribunal decisions had been set aside for error of law in failing adequately to assess the risk arising from those activities. The Upper Tribunal retained the appeals, reviewed the existing country guidance in GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC), and considered the interaction between sur place activity, information gathering, return procedures and the principle in HJ (Iran) [2010] UKSC 31.

1. Country guidance. The guidance in GJ and Others [2013] UKUT 00319 (IAC) remained broadly accurate but required clarification and supplementation.
2. GoSL is hostile to Tamil separatism and draws no material distinction between violent and non-violent advocacy where the underlying aim is the establishment of Tamil Eelam. It views the Tamil diaspora generally adversely, but does not regard every member as politically active or at risk.
3. Proscription under the 2012 UN Regulations is a relatively significant risk factor, but is not determinative. Activity for a non-proscribed organisation may also attract adverse interest where the organisation has, or is perceived to have, a separatist agenda.
4. The appropriate touchstone remains whether the individual has, or is perceived to have, undertaken a significant role in Tamil separatism. This is assessed through a non-exhaustive, indicator-based approach. Relevant indicators include the organisation, the type, extent and duration of activities, relevant history in Sri Lanka and familial connections. Formal office, membership, prominence and leadership are unnecessary.
5. Information gathered in the United Kingdom is reasonably likely to be processed and stored on a general electronic database. TTD applicants will be interviewed at the Sri Lankan High Commission. Returnees on the watch list divide into those whose existing profile warrants detention after leaving the airport and those who will generally be monitored. Monitoring alone will not generally amount to persecution, although exceptional mental-health cases may differ.
6. The evidence did not establish a general risk of rehabilitation, recruitment as an informant, or prosecution for refusing to become one.
7. The HJ (Iran) principle applies to genuinely held political beliefs. A tribunal must assess genuineness, intended conduct on return, detection, consequences, and whether concealment is motivated by fear of persecution. A person need not manifest the same level of activity in Sri Lanka as in the United Kingdom, nor accept a different political creed.
8. KK’s sustained activity for the proscribed TGTE, including organisational and promotional responsibilities, disclosed a significant role and a real risk of detention and persecution. RS’s activities for the TGTE and Tamil Solidarity, her evidence to UN OISL, and her relationship with an active partner likewise disclosed a significant role. Both appeals were allowed.

• First-tier Tribunal: The appeals of KK and RS were dismissed.
• Upper Tribunal: The First-tier Tribunal decisions were set aside for material errors of law. The Upper Tribunal re-made the decisions and allowed both appeals.