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United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments


You are here: BAILII >> Databases >> United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments >> UI2025000899 [2025] UKAITUR UI2025000899 (21 May 2025)
URL: http://www.bailii.org/uk/cases/UKAITUR/2025/UI2025000899.html
Cite as: [2025] UKAITUR UI2025000899

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IN THE UPPER TRIBUNAL

IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2025-000899

First-tier Tribunal No: PA/61701/2023

LP/06346/2024

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

On 21 st of May 2025

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE DEAKIN

 

Between

 

JS

(ANONYMITY ORDER MADE)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Mr Patrick Lewis (counsel) instructed by York Solicitors

For the Respondent: Ms S Nwachuku, Senior Home Office Presenting Officer

 

Heard at Field House on 23 April 2025

 

Order Regarding Anonymity

 

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.

 

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

1.               The Appellant is a Sri Lankan national. He left Sri Lanka on an unspecified date in 2010 and arrived in the United Kingdom on a student visa on 16 June 2010. He subsequently overstayed and was arrested under immigration powers on 15 September 2018. The Appellant claimed asylum in the United Kingdom on 15 April 2020. He underwent a screening interview on the same day and was interviewed substantively on 23 July 2023. The Secretary of State refused the Appellant's claim by decision of 10 November 2024. The Appellant appealed that refusal to the First-tier Tribunal. In a decision promulgated 21 November 2024, FTJ Cohen dismissed the Appellant's appeal on asylum and human rights grounds. On 22 February 2025, FTJ Mills granted the Appellant permission to appeal FTJ Cohen's decision to the Upper Tribunal. That appeal now comes before me.

The Appellant's Account

2.               The Appellant states that he was born in the Jaffna region of northern Sri Lanka, a region that for many years was under the control of the Liberation Tigers of Tamil Eelam ['LTTE']. He states that his mother moved him to Colombo when he was five years old in order to avoid repercussions following the Sri Lankan Army's defeat of the LTTE in the region.

3.               The Appellant states that when he was 18 years old a friend ['SS'] asked if the Appellant could help the friend's uncle with LTTE activities in Colombo. The Appellant claimed that SS was one of his "best friends" and the Appellant explained why he had been asked to carry out this work as follows: " they needed people permanently living in Colombo because they would be able to function in Colombo relatively safely compared to other Tamils ... as I and [SS] were living in Colombo permanently and schooling in Colombo, we would be able to move around in Colombo relatively safely" (SJ's 21 March 2023 witness statement at paras 7-8). He also explained that SS' uncle promised to pay money for this assignment. The Appellant stated that he did this work "about 5 or 6 times until January 2009" (witness statement para. 9) and that he was paid.

4.               The Appellant claims that he left Sri Lanka for the United Kingdom on 16 June 2010 in order to undertake higher education. He states that he had no difficulties at the airport in Sri Lanka. The Appellant claims to have visited Sri Lanka on 7 August 2014 and to have returned to the United Kingdom on 21 August 2014 without incident.

5.               The Appellant states that he received a phone call from his mother in Colombo on 31 August 2014 in which she said that a number of police officers had attended her home and that they had told her that the Appellant was a "longstanding member of the LTTE ... involved in terrorist activities" and that " they had evidence [he] was indeed an undercover member of the LTTE and they arrested [SS and SS' uncle] who confessed to the police of [the Appellant's] involvement in the LTTE" (witness statement para. 15).

6.               The Appellant states that he first participated in pro-Tamil independence activities in the United Kingdom only after Sri Lankan authorities engaged with his mother. He states that he participated in the 27 April 2019 Transitional Government of Tamil Eelam ["TGTE"] parliamentary elections; that he attended TGTE offices in May 2019 where he met TGTE MPs and members and that he began working for the TGTE at that point. The Appellant states, in particular, that he been involved in volunteer fundraising activities for the TGTE, distributing leaflets, attending several celebrations and protests, being involved in "security duty" on one occasion and being involved in the organisation of one event as a volunteer. He states that he received a further phone call from his mother on 21 May 2019 to say that police in Sri Lanka had visited her and showed her a picture of the Appellant at the "forefront of a demonstration in the UK" (witness statement para. 43).

FTJ Cohen's Decision

7.               FTJ Cohen found the Appellant's account of his activities in Sri Lanka to be incredible and he found the Appellant to be lacking in credibility. He determined that the Appellant had "fabricated late asylum claim in a last-ditch attempt to gain status in the UK" (para. 37).

8.               FTJ Cohen based this conclusion on the following findings:

a.        FTJ Cohen found the Appellant's account of his activities in Sri Lanka to be "lacking in cohesive detail" and that he had failed to "explain why the LTTE required him, as a non--LTTE member or supporter to undertake this function on their behalf" (para. 31).

    1. FTJ Cohen found the Appellant's claim that his mother's house had been raided to be incredible given the length of time since the Appellant's claimed involvement in LTTE transactions and the fact that these were all in cash (para. 32).
    2. The Appellant had failed to offer any credible explanation for his delay in claiming political asylum (para. 33).
    3. FTJ Cohen found it to " particularly noteworthy" that the Appellant was able to enter/exit Sri Lanka in 2014 without difficulty. The Judge found: "... the fact that the appellant was able to enter and exit Sri Lanka on his own properly issued passport without any issues whatsoever in 2014 to be indicative of the fact that he was of no interest whatsoever to the authorities at that time and would equally be of no interest in the authorities based on his claimed activities in Sri Lanka upon return now" (para. 34).
    4. FTJ Cohen placed reliance on the fact that the Appellant had given "...changeable evidence before me as to whether a warrant had been issued against him or not initially indicating that it had not and then changing his evidence to indicate that he did not know." (para. 35).
    5. FTJ Cohen was not impressed by the manner in which the Appellant gave evidence and found that this damaged his credibility (para. 36).

9.               As to the Appellant's claimed sur place activities:

    1. FTJ Cohen determined in relation to the Appellant's photographic evidence of his attendance at demonstrations that "The photos however appear staged with him facing the camera in a group or crowd. I do not find that the appellant would be identifiable to the Sri Lankan authorities upon return based upon his simple attendance at these demonstrations." (para. 38).
    2. The Judge attached little weight to a letter produced by a TGTE MP. The Judge found it " noteworthy" that the letter writer was "unaware of the details of the appellant's claim or of him coming to the attention of the authorities in Sri Lanka", that the letter was " largely generic" and that the author did not attend court (para. 39).
    3. The Judge found the gap between the Appellant's arrival in the United Kingdom in 2010 and his engaging in political activities to be "particularly noteworthy" and that the Appellant had "undertaken low level political activities in order to enhance and bolster a week (sic) asylum claim." (para. 40).
    4. At paras. 41 and 42 FTJ Cohen explained that, while the: ...threshold set in the country guidance case is an individual must show that they have a significant role in separatist activities for there to be a risk upon return. In the photos the appellant does not appear to be playing an active role at the demonstration. He is not an organiser. He is not speaking. He has not produced any written materials or posted about the demonstrations or activities on social media." The Judge went on to find as follows:

...The appellant appears to have attended some events but that he does not appear to be shouting, chanting, leading, engaging with any of the other individuals in the photographs and while stood close to a banner, there is only one photo in which he may be appearing to be one of a number of people holding a banner although it is not entirely clear from the photograph. There is no persuasive evidence that he volunteers for the TGTE or that he is involved in the administration, organisation or that his involvement is anything other than the lowest level of involvement that an individual could have whilst being in the UK short of not having been involved at all...

    1. FTJ Cohen accepted that, as a proscribed organisation, the TGTE is likely to have been monitored by the Sri Lankan authorities in the United Kingdom but, noting the "...the nature of the appellant's activities; the extent of the activities; the duration of the activities which in the main have been undertaken from 2022 onwards and limited to some degree by the Covid lockdowns; the fact that he is not a leader; his lack of relevant history in Sri Lanka and familial connections", he did not accept that the Appellant would be of interest to the Sri Lankan authorities either when interviewed in the United Kingdom or on return (para. 43).

10.           FTJ Cohen accordingly dismissed the Appellant's protection claim.

Discussion

11.           The Appellant advanced several grounds of appeal in which he alleges that the Judge materially erred in law. As the grounds were not individually numbered, I have added numbers below for clarity.

12.           I note at the outset of my decision the well-established principles articulated by Haddon-Cave J (as he then was) in the headnote to Budhathoki (reasons for decisions) [2014] UKUT 341 (IAC):

"It is generally unnecessary and unhelpful for First-tier Tribunal judgments to rehearse every detail or issue raised in a case. This leads to judgments becoming overly long and confused and is not a proportionate approach to deciding cases. It is, however, necessary for judges to identify and resolve key conflicts in the evidence and explain in clear and brief terms their reasons, so that the parties can understand why they have won or lost"

13.           Ground 1: The Appellant criticises FTJ Cohen's finding that the Appellant's account of why he had been selected to carry money for the LTTE was "lacking in cohesive detail". The Appellant argues that the Judge's failure to give reasons as to why the Appellant's account was rejected amounts to a material error of law.

14.           Ms Nwachuku for the Secretary of State submitted that the Appellant had provided no detailed account of why the LTTE had requested him to carry money when he was not a member or supporter of the cause and that the Judge was entitled to reach this conclusion.

15.           In my judgement there is merit in the Appellant's submission. The Appellant gave a clear and detailed account of his smuggling money for the LTTE. It is not apparent from FTJ Cohen's decision why he found that the Appellant's account was "lacking in cohesive detail". This constitutes a material error of law. Further, FTJ Cohen's finding at para. 31 that "It is not explain (sic) why the LTTE required him, as a non--LTTE member or supporter to undertake this function on their behalf" is not correct. The Appellant did provide an explanation (he was friends with SS, SS' uncle was an LTTE member, and people in the Appellant's position could move about Colombo in relative safety). FTJ Cohen accordingly failed to properly address this core factual element of the Appellant's case when reaching his findings on credibility. In my judgement that constitutes a material error of law.

16.           Ground 2: The Appellant criticises FTJ Cohen's finding that the Appellant's claim that his mother's house was raided 5 years after the events in question was "incredible". Ms Nwachuku argued that this was a finding the Judge was entitled to reach.

17.           The Appellant does not clearly state the what error of law is alleged. However, on analysis, I find that that the Judge did err in law in his approach to this issue. The Appellant had asserted that the police who raided his mother's house informed her that he had come to the attention of the Sri Lankan authorities after SS and SS' uncle had been arrested and identified the Appellant to the police. In my view this provides an explanation for the timing of the raid. This was a highly material fact with which the Judge was required to engage when reaching his conclusions. In my judgement the Judge's failure address this point/failure to provide adequate reasons for his conclusion that the timing of the raid was "incredible" constituted a material error of law.

18.           Ground 3: The Appellant argues that FTJ Cohen erred in failing to have regard to his explanation as to why he was not arrested when exiting Sri Lanka in 2014 amounted to an error of law.

19.           Ms Nwachuku argued that the Judge was not required to expressly have regard to the Appellant's explanation as had he found the Appellant's account to be incredible and the Appellant's account of why he had not been arrested on exit in 2014 was speculative.

20.           In my judgement FTJ Cohen erred in law in failing to have proper regard to the fact that, on the Appellant's account, he had left Sri Lanka before his mother's house had been raided which gives rise to the obvious inference that the Sri Lankan authorities were not aware of the Appellant's activities until after he had left the country. I note that the Judge found the Appellant's ability to enter and exit Sri Lanka in 2014 to be " particularly noteworthy" and expressly held it to be relevant to current risk on return (para. 34). This supports my conclusion that the Judge's error was material.

21.           Ground 4: The Appellant argues that FTJ Cohen's finding that the Appellant's first stating that no arrest warrant had been issued before stating he did not know if authorities in Sri Lanka had issued an arrest warrant damaged the Appellant's credibility was not properly open to him.

22.           Ms Nwachuku submitted that it was open to the Judge to make this finding, especially given the Judge's additional adverse credibility findings (see e.g. the Judge's criticisms at para. 36 namely the Appellant's " giving changeable evidence and being extremely evasive").

23.           In my judgement it was open to FTJ Cohen to come to the conclusion that the manner in which the Appellant had given his evidence was damaging to his credibility. In my judgement Ground 4 discloses no error of law.

24.           Ground 5: In relation to the FTJ Cohen's finding that the Appellant would not be identifiable to the Sri Lankan authorities on return, the Appellant argues that the Judge erred in law by (i) failing to apply KK and RS (sur place activities: risk) Sri Lanka CG UKUT 130 (IAC) and/or (ii) failing to give reasons for departing from the findings of KK and RS.

25.           Mr Lewis relied on para. 8 of the headnote to KK and RS (which provides that the Government of Sri Lanka "continues to operate an extensive intelligence-gathering regime in the United Kingdom which utilises information acquired through the infiltration of diaspora organisations, the photographing and videoing of demonstrations, and the monitoring of the Internet and unencrypted social media."). He argued that the Judge departed from this approach at para. 38 of his decision without providing reasons and that this departure constituted an error of law. I note also para. 10 of the headnote to KK and RS which explains the information that Sri Lankan authorities are likely to have obtained prior to a person's being issued with a temporary travel document.

26.           The Judge concluded that the Appellant would not be identifiable "based on his simple attendance at these demonstrations" (para. 38) . In my judgement that is not consistent with the position as set down in in KK and RS and the Judge has failed to explain the basis for his departure from that authority. Further, the Judge has failed to take into account the Appellant's claim to have been involved in volunteer organisational roles with the TGTE. In my judgement the Judge erred in his approach to the Appellant's identifiability. Whether or not this error is material will turn on whether, if identified by the the Sri Lankan authorities, the Appellant's activities would be a cause for concern (see paras. 19-22 of the headnote to KK and RS). For reasons set out below in relation to Grounds 6-8, I find that the Judge erred in his approach the issue of what role the Appellant actually played in the TGTE while in London and that, as such it is not possible to find that Judge's error in relation to the Appellant's identifiability was not material to the outcome of his decision.

27.           As such, in my judgement, the Judge erred as alleged in Ground 5.

28.           Ground 6: The Appellant argues that FTJ Cohen erred in finding that the TGTE MP was not aware of the Appellant's history in Sri Lanka when, in fact, the letter provided by the MP was silent on this issue.

29.           The letter of 19 July 2023 concerned the Appellant's activities with the TGTE while in the United Kingdom. It makes no mention of the Appellant's activities before his involvement with the TGTE as such, in my judgement, it was not reasonably open to the Judge to conclude that the failure of the MP to address the Appellant's claimed activities in Sri Lanka indicated that he was not aware of them. In any event, in my judgement, the Judge provided no reasons as to why he considered that the MP should have been aware of these activities. In my judgement the Judge erred in his approach to this letter. That error had the potential to infect the Judge's conclusions as to the nature and seriousness of the Appellant's involvement in the TGTE in the United Kingdom and, as such, was material.

30.           Ground 7: The Appellant argues that FTJ Cohen was factually mistaken in his assessment of the photographic evidence and that this constitutes an error of law within the meaning of E and R v Secretary of State for the Home Department [2004] 2 WLR 1351.

31.           At para. 42 the Judge held that

The appellant appears to have attended some events but that he does not appear to be shouting, chanting, leading, engaging with any of the other individuals in the photographs and while stood close to a banner, there is only one photo in which he may be appearing to be one of a number of people holding a banner although it is not entirely clear from the photograph.

32.           It is difficult to assess from a photograph whether or a not a person is shouting, chanting or leading others. In my judgement this assessment was a matter for the Judge at first instance and I find he was entitled to reach the conclusions on these points that he did.

33.           I do, however, find that the Judge erred in concluding that the Appellant did not appear to be "engaging with any of the other individuals in the photographs" and that "there is only one photo in which he may be appearing to be one of a number of people holding a banner". While the Appellant does appear to be alone on several photographs, he is clearly engaging with an individual in at least one photograph and, further, the Appellant is plainly holding banners in several photographs. The Judge's conclusions on these points of fact were not reasonably open to him and, as his findings on these points were relevant to his assessment of the role played by the Appellant in the TGTE, I find that these errors to be material.

34.           Ground 8: The Appellant argues that, in light of the photographic evidence confirming the Appellant's volunteer activities for the TGTE and two letters confirming this, the Judge's conclusion that the Appellant provided "no persuasive evidence that he volunteers for the TGTE or that he is involved in the administration, organisation or that his involvement is anything other than the lowest level of involvement that an individual could have whilst being in the UK short of not having been involved at all" was not open to him/not adequately reasoned.

35.           The Appellant provided photographic evidence of what he claimed was his voluntary activity for the TGTE. He also relied on the TGTE MP's letter (considered above) which referenced his TGTE activities while in the United Kingdom. I have not seen a second letter in support of this claim. As set out above, I consider the Judge to have erred in law in his approach to the photographic evidence and/or MP's letter of support. In my judgement these errors infect the Judge's conclusions as to the persuasiveness of the evidence and the cogency of the Judge's assessment as to the extent of the Appellant's involvement in the TGTE while in the United Kingdom.

Conclusion

36.           For the reasons set out above, I conclude that FTJ Cohen erred in law and the appeal is allowed on Grounds 1-3 and 5-8.

Disposal

37.           Mr Lewis submitted that, should an error of law be found, that this matter should be remitted to the First-tier Tribunal. Ms Nwachuku submitted that this matter should be retained in the Upper Tribunal. In my judgement, given the number of errors of law identified and the limited reasons provided, this matter should be remitted to the First-tier Tribunal for rehearing.

 

Notice of Decision

38.           The appeal against FTJ Cohen's decision is allowed.

39.           FTJ Cohen's decision is set aside.

40.           The appeal is remitted to the First-tier Tribunal for rehearing by a different Judge.

 

 

Andrew Deakin

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

15 May 2025

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