Upper Tribunal (Immigration and Asylum Chamber) Appeal Numbers: PA/09978/2016 PA/13288/2018 THE IMMIGRATION ACTS Heard at Field House Decision & Reasons Promulgated On 7, 8, 9, 10, and 11 September 2020 On 27 May 2021 With further written submissions On 7 Dec 2020 and 12 Jan 2021 Before UPPER TRIBUNAL JUDGE BLUM UPPER TRIBUNAL JUDGE RIMINGTON UPPER TRIBUNAL JUDGE NORTON-TAYLOR Between KK RS (ANONYMITY DIRECTION MADE) Appellants and SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, we make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the appellants or members of their families. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings. We make this order owing to the content and nature of the proceedings. Representation: For the appellant KK: Mr A Mackenzie and Ms A Benfield, of Counsel, instructed by Birnberg Peirce Solicitors © CROWN COPYRIGHT 2021 Appeal Numbers: PA/09978/2016 PA/13288/2018 For the appellant RS: Mr A Mackenzie and Mr A Bandegani, of Counsel, instructed by the Joint Council for the Welfare of Immigrants For the respondent: Ms N Patel, Mr T Tabori, and Ms H Higgins, of Counsel, instructed by the Government Legal Department CONTENTS PARAGRAPHS Introduction 1-6 Glossary 7-8 General approach to country guidance cases 9-15 The current country guidance 16-19 Procedural matters 20-28 Summary of the evidence 29-32 Dr Smith 33-82 Dr Nadarajah 83-115 Professor Gunaratna 116-135 Mr Yogalingam 136-146 Mr Uthayasenan 147-153 TGTE 154-158 Mr Stares 159-175 FFM 176-184 DFAT 185-187 Other relevant country information 188-192 CPIN 193 KK 194-204 RS and ST 205-217 The parties’ submissions 218 2 Appeal Numbers: PA/09978/2016 PA/13288/2018 The appellants’ submissions 219-237 The respondent’s submissions 238-258 Post-hearing matters 259-261 General comments on the evidence The expert evidence 262-268 Dr Smith 269-271 Dr Nadarajah 272-276 Professor Gunaratna 277-281 The FFM and Mr Stares’ evidence 282-300 The CPIN 301 The DFAT 302-305 Other country evidence 306 Mr Yogalingam 307-309 Mr Uthayasenan 310-312 Analysis and conclusions Preliminary observations 313-314 Detention and the risk of persecution and serious harm 315-323 The current political landscape in Sri Lanka 324-328 Separatism in the Sri Lankan context 329-349 GoSL attitudes to the Tamil diaspora in general 350-358 Proscription under the 2012 UN Regulations 359-374 The TGTE 375-387 3 Appeal Numbers: PA/09978/2016 PA/13288/2018 Tamil Solidarity 388-391 Other diaspora organisations 392-402 Monitoring and information gathering in the United Kingdom 403-418 Information processing and storage 419-432 The assessment of an individual’s profile 433-502 The position of returnees at the airport 503-515 Beyond the airport: monitoring, “rehabilitation”, and recruitment as an informant 516-534 The country guidance 535-536 The HJ (Iran) principle 537-555 The two individual appeals: 556 KK’s case in outline 557 Decision of the First-tier Tribunal 558 Error of law decision 559 The parties’ submissions 560-565 Findings of fact 566-591 Conclusions 592-602 RS’s case in outline 603-604 Decision of the First-tier Tribunal 605-606 Error of law decision 607 The parties’ submissions 608-614 Findings of fact 615-642 Conclusions 643-657 4 Appeal Numbers: PA/09978/2016 PA/13288/2018 Notice of Decision 658-661 Appendices: A: the country information B: error of law decision in KK’s appeal C: error of law decision in RS’ appeal DECISION AND REASONS A: INTRODUCTION 1. These linked appeals provide the vehicle for country guidance on the following issue: “The extent of the risk in Sri Lanka to individuals on the basis of sur place political activities in the United Kingdom which are (or are perceived to be) in opposition to the government in Sri Lanka.” 2. The appeals also involve the determination of protection claims made by two individuals. KK is of Tamil ethnicity and originates from the north of Sri Lanka. He arrived in United Kingdom in January 2009 with entry clearance as a student. Following an extension of leave to remain as a Tier 1 (Post-Study Migrant), he sought further leave as a Tier 1 Entrepreneur. This application was refused. On 6 March 2016 KK made his asylum claim. This was based on two elements: a claimed fear of the Sri Lankan authorities owing to previous detention and ill-treatment in consequence of suspected LTTE assistance; and activities undertaken in the United Kingdom. The claim was refused and an appeal against that decision was dismissed by the First-tier Tribunal. That decision was challenged and set aside by the Upper Tribunal. The appeal was remitted to the First-tier Tribunal and once again dismissed. A further appeal was brought before the Upper Tribunal. By a decision promulgated on 7 January 2020, Upper Tribunal Judge Rimington set aside the First-tier Tribunal’s decision and retained the appeal in the Upper Tribunal for a resumed hearing to redetermine the issue on the appellant’s sur place activities. 3. RS is a woman of Tamil ethnicity who lived in the eastern region of Sri Lanka. She entered the United Kingdom in October 2007 and claimed asylum on the same day. Her claim was that she had been detained and mistreated by the Sri Lankan army because of suspected LTTE assistance. Her claim was rejected by the respondent. An appeal was dismissed by the First-tier Tribunal in May 2008. Over the course of time, RS submitted further submissions which were rejected 5 Appeal Numbers: PA/09978/2016 PA/13288/2018 by the respondent. Eventually, the respondent accepted that further submissions put forward in 2018 constituted a fresh claim pursuant to paragraph 353 of the Immigration Rules. The claim was refused and RS appealed. The appeal was dismissed by the First-tier Tribunal in September 2019. On appeal, Upper Tribunal Judge Rimington set the First-tier Tribunal’s decision aside and ordered that the decision be re-made by the Upper Tribunal. 4. These two appeals were considered to be appropriate cases in which the Upper Tribunal could address the existing country guidance on Sri Lanka and the specific issue set out in paragraph 1, above. There followed intensive case management over the course of several months involving a very substantial amount of correspondence between the parties and with the Upper Tribunal. A series of case management directions were issued and hearings conducted with the aim of ensuring that both parties had a fair opportunity to obtain relevant evidence and present their respective cases in a thorough and efficient manner. 5. Before moving on, we wish to express our gratitude to the legal teams on both sides for the enormous amount of work put into the preparation and presentation of these cases. At any other time their collective effort would be commendable. However, in light of the exceptional circumstances brought about by the Covid-19 pandemic, what they have done deserves all the more appreciation. 6. It is also appropriate, perhaps unusually, to offer a word of gratitude to the administrative staff of the Upper Tribunal for the exceptional effort that they put into the processing of correspondence and in respect of the logistical issues involved in the hearing itself. B: GLOSSARY 7. As in other country guidance cases, we deem it appropriate to set out a glossary of the terms and abbreviations that we have employed most often when referring to the evidence presented and the arguments made thereon. Abbreviation Full description 2012 UN Regulations The United Nations Regulations Nos. 1 and 2 made respectively on 13 May and 30 May 2012 by the Sri Lankan Minister of External Affairs under section 2 of the United Nations Act 1968 BIA Bandaranaike International Airport, the only international airport in Sri 6 Appeal Numbers: PA/09978/2016 PA/13288/2018 Lanka and the point of return for all failed-asylum seekers BTC British Tamil Conservatives BTF British Tamil Forum CID Sri Lankan Criminal Investigation Department CPIN Country Policy Information Note Sri Lanka: Tamil Separatism, version 6.0, May 2020 DFAT Australian Department of Foreign Affairs and Trade report entitled Country Information Report on Sri Lanka, dated 4 November 2019 DIE Department of Immigration and Emigration FCO The United Kingdom’s Foreign and Commonwealth Office FFM Report of a Home Office fact-finding mission to Sri Lanka, conducted between 28 September and 5 October 2019 and published on 20 January 2020 GoSL The current Government of Sri Lanka GTF Global Tamil Forum ICPPG International Centre for the Prevention and Prosecution of Genocide IOM International Organisation for Migration ITAK Illankai Tamil Arasu Kachchi (also known as the Federal Party) LLRC Lessons Learnt and Reconciliation Commission set up by former President Mahinda Rajapaksa, in 2010. 7 Appeal Numbers: PA/09978/2016 PA/13288/2018 LTTE Liberation Tigers of Tamil Eelam President Gotabaya President Gotabaya Rajapaksa: for ease of reference, as his brother, Mahinda Rajapaksa, had previously been President Proscribed The status of an individual or organisation formally designated under the 2012 UN Regulations. Proscription is the act of proscribing under those Regulations PTA Prevention of Terrorism (Temporary Provisions) Act, originally enacted on 24 July 1979. SIS Sri Lankan State Intelligence Service SLHC Sri Lankan High Commission in London Tamil Eelam A proposed separate and independent Tamil State on the island of Sri Lanka TFL Tamils for Labour TFLD Tamils Friends of Liberal Democrats TGTE Transnational Government of Tamil Eelam The Constitution The Constitution of the Democratic Socialist Republic of Sri Lanka, as amended up to 15 May 2015.