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

In a protection appeal, the lower standard of proof does not prevent a tribunal from finding that asserted past facts are untrue, unsupported or uncertain. It may use credibility and inherent plausibility as part of the overall assessment, provided it states and applies the real-risk standard and explains its conclusions.

A sur place claim cannot be rejected solely because political commitment is not genuine. Genuineness remains relevant to whether activity would be noticed or taken seriously. A claimant without genuine political opinions cannot rely on the principle against compelled concealment or lying. Later country guidance need not be followed retrospectively. A claim under paragraph 276ADE of the Immigration Rules requires proof of a profile creating a real risk on return.

The appellant, a Sri Lankan citizen, appealed against the Upper Tribunal’s dismissal of his challenge to a 2020 First-tier Tribunal decision. The First-tier Tribunal had dismissed his appeal against refusal of a protection claim based on alleged LTTE assistance, detention and torture, illegal departure, and later TGTE activities in the United Kingdom.

The Upper Tribunal found no material error of law. The Court of Appeal considered whether the First-tier Tribunal had applied the correct standard of proof, lawfully assessed credibility and sur place activity, and correctly dealt with paragraph 276ADE of the Immigration Rules.

1. Disposition. The appeal was dismissed unanimously. Laing LJ gave the principal judgment. Dingemans LJ agreed with both judgments, and Underhill LJ gave additional reasons reaching the same result.
2. Standard of proof and credibility. The burden lay on the appellant, but the relevant question was whether there was a real risk of persecution or Convention ill-treatment, not whether past events were proved on the balance of probabilities. A tribunal may find particular assertions true, unproved, or incredible, provided it explains its reasoning and continues to assess the overall risk from all the evidence. The use of credibility or plausibility findings was not itself a heightened standard of proof. Karanakaran was consistent with that approach. HK, Y, and MN confirmed that credibility assessment is not a separate technical stage and should not be distorted by cultural assumptions. The First-tier Tribunal had stated and applied the correct standard. Its boilerplate error concerning the best interests of non-existent children did not invalidate its substantive reasoning.
3. Missing evidence. Although corroboration was not required, the tribunal was entitled to ask why relevant supporting evidence from available witnesses had not been produced and to take the explanation into account.
4. Sur place activity. A tribunal would err if it treated genuine political commitment as the sole test. Genuineness was nevertheless relevant to whether activities were likely to attract attention or be taken seriously. On the findings, the appellant’s evidence was late, limited, exaggerated, and unsupported by evidence that the Sri Lankan authorities would know of or care about it. The proscription of the TGTE was considered but did not justify departure from the existing country guidance. The principle in RT (Zimbabwe) did not assist a person found not to hold genuine political opinions and who was not shown likely to be questioned on return.
5. Later guidance and article 8. Failure to follow country guidance promulgated after the First-tier Tribunal’s determination was not an error of law. The appellant’s paragraph 276ADE claim also failed because he had not established the core profile said to create a risk of ill-treatment on return.

• Court of Appeal (Civil Division): dismissed the appeal against the Upper Tribunal’s determination, [2022] EWCA Civ 828.
• Upper Tribunal (Immigration and Asylum Chamber): held that the First-tier Tribunal had made no material error of law.
• First-tier Tribunal (Immigration and Asylum Chamber): dismissed the appellant’s appeal against the Secretary of State’s refusal of his protection claim.