ON APPEAL FROM UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBERS)
Deputy Upper Tribunal Judge Pickup
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE DAVID RICHARDS
LORD JUSTICE IRWIN
| UB (SRI LANKA)
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Ivan Hare (instructed by Government Legal Department) for the Respondent
Hearing date: 9 February 2017
Crown Copyright ©
Lord Justice Irwin :
i) Individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they are, or are perceived to have, a significant role in relation to post conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka.
ii) Journalists or human rights activists who have criticised the Sri Lankan government, in particular its human rights record …
iii) Individuals who have given evidence to the Lessons Learned in Reconciliation Commission implicating the Sri Lankan security services, armed forces or the authorities in alleged war crimes.
iv) A person whose name appears on a computerised "stop" list accessible at the airport, comprising a list of those against whom there is an extant court order or arrest warrant. Individuals whose names appear on a "stop" list will be stopped at the airport and handed over to the appropriate Sri Lankan authorities, in pursuance of such order or warrant.
"The authorities know that many Tamils travelled abroad as economic migrants and that almost everyone had some level of involvement with the LTTE during the civil war. In post-conflict Sri Lanka, an individual's past history is relevant only to the extent that it is perceived by the Sri Lankan authorities as indicating a present risk to the unitary Sri Lankan state or government."
"88. The Appellant has provided two letters from Mr Sivaratnam confirming that he is involved in the Transitional [sic] Government of Tamil Eelam. The first letter was a handwritten letter dated 28 June 2014 which appears in the appellant's bundle at page 79. This is a handwritten letter with various spelling mistakes. The second letter is dated 8th September 2014 and is a typed letter from Mr Sivaratnam. Both letters state that the appellant actively takes part in rallies, demonstrations and meetings against the government. The letter states that the appellant also distributes leaflets and stands as a volunteer during the rallies.
89. The appellant has also provided numerous photographs showing him attending various rallies and demonstrations, often carrying a banner with headlines such as "UK stop helping Sri Lanka abduct Tamil children" or "Tamil Eelam are not terrorists". Some of these photographs have been published in Demotix. None of the photographs show him as an organiser of the rally but simply as somebody who attends the various rallies. The photographs in the bundle are variously dated 2014. These include a large demonstration in Glasgow where a demonstration was held to condemn participation of Sri Lanka in the Commonwealth Games.
91. The former Tamil areas in the diaspora are heavily penetrated by the security services. Photographs are taken of public demonstrations and the government of Sri Lanka may be using face recognition technology. The key question which concerns the government of Sri Lanka is the identification of Tamil activists working for Tamil separatism and to destabilise the unitary Sri Lankan state. However the court held that attendance at demonstrations in the diaspora alone is not sufficient to create a real risk or a reasonable degree of likelihood that a person will attract adverse attention on return to Sri Lanka.
92. Whilst I accept that the appellant has attended various demonstrations both in London and within the United Kingdom, I note that at paragraph 351 of GJ it held that "attendance at one, or even several demonstrations in the diaspora is not of itself evidence that a person is a committed Tamil activist seeking to promote Tamil separatism against Sri Lanka".
93. I note the appellant is not a leader in any of the communities within which he supports. His role appears to be that of very low level activity in simply attending demonstrations and giving out leaflets. He has not claimed that he is involved in public speaking, funding the LTTE or any other role. Even the letter from Mr Seevaratnam MP only claimed that he attends demonstrations, distributes leaflets and stands as a volunteer during rallies.
94. I therefore do not find that the appellant's activities in the United Kingdom reaches the threshold to be granted asylum in the United Kingdom. Nor do I find that the appellant is a "committed Tamil activist working for Tamil separatism and to destabilise the unitary Sri Lankan state". I find the appellant wishes to demonstrate his opposition to the government – but this is significantly different from somebody who is actively working to destabilise the government."
"Guidance to Home Office decision makers on handling claims made by nationals/residents of … Sri Lanka. This includes whether claims are likely to justify the granting of asylum, humanitarian protection, or discretionary leave … Decision makers must consider claims on an individual basis, taking into account the case specific facts and all relevant evidence, including: the guidance contained with this document; the available COI, any applicable caselaw; and the Home Office casework guidance in relation to relevant policies."
"Proscribed Terrorist Groups
On 1 April 2014, the government of Sri Lanka announced the designation of 16 Tamil Diaspora organisations and 424 individuals under the UN Security Council resolution 1373 on counter-terrorism. The order was issued by the Secretary of Defence. The government asserts that this action has been taken to stop attempts to revive the LTTE. The BHC [i.e. British High Commission] has asked the government of Sri Lanka to provide evidence to support this decision.
Among the organisations proscribed are the Transnational Government of Tamil Eelam (TGTE) and the UK-based Global Tamil Forum (GTF) and British Tamil Forum (BTF). When making the announcement on 1 April, Brigadier Ruwan Wanigasooriya said that individuals belonging to these organisations would face arrest under anti-terrorism laws … [T]o date, there have been no known arrests based on membership of one of the newly proscribed groups."
"The spokesperson from the DIE stated that returnees may be questioned on arrival by immigration, CID, SIS and TID. They may be questioned about what they have been doing whilst out of Sri Lanka, including whether they have been involved with one of the Tamil Diaspora groups. He said that it was normal practice for returnees to be asked about their activities in the country they were returning from.
The spokesperson from the SIS said that people being "deported" will always be questioned about their overseas activities, including whether they have been involved with one of the proscribed organisations. He said that members of the organisations are not banned from returning to Sri Lanka, they are allowed to return, but will be questioned on arrival and may be detained."
Conclusion: Service of the Guidance and Letters
"27. [It was submitted by the appellant that] the attention of the adjudicator should have been drawn by the Secretary of State's representative to the policy on interviewing unaccompanied minors, so as to avoid him being misled: see R v. Special Adjudicator, ex parte Kerrouche  Imm AR 610.
28. As a matter of law, that is right. The Secretary of State should draw relevant parts of his policy to the adjudicator's attention. Merely because those policy documents are publicly available in print or on a website is not enough: where issues of risk of persecution are involved, a decision to return a person or not to his country of origin should not depend on the diligence of that person's representatives."
"irrespective of whether the specialist judge might reasonably be expected himself to have been aware of it, the Home Office presenting officer clearly failed to discharge his duty to draw it to the tribunal's attention as policy of the agency which was at least arguably relevant to Mr Mandalia's appeal." (paragraph 19)
"Associated with the Transnational Government of Tamil Eelam (TGTE)
55. You claim that you are a member of the TGTE and you submitted a letter purported to be from Nimalan Seevaratnam MP and was dated 28/06/2014. It is noted that the letter was hand written and contains grammatical and spelling errors. Irrespective of the poor quality of the letter, it is noted that you were asked questions relating to the organisation, which you claimed to be a member of (Q116-Q124). You were asked to provide the names of some of the officers in this organisation and it is noted that you could only provide the last name of someone you claim to be prime minister of Canada and two others who you claim to be based in the UK. Consideration has been given to your responses and it is found to be inconsistent with someone who claims to not only be a member of the organisation, but also attends meetings. It is therefore not accepted that you have any links with this organisation."
Conclusion 2: Might this Material have Affected the Outcome?
Lord Justice David Richards:
The President of the Family Division: