Upper Tribunal (Immigration and asylum chamber), 2022-10-25, PA/12147/2019
| Appeal Number | PA/12147/2019 |
| Hearing Date | 02 September 2022 |
| Published date | 09 November 2022 |
| Date | 25 October 2022 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: PA/12147/2019
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/12147/2019
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On the 2 September 2022 |
On the 25 October 2022 |
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Before
UPPER TRIBUNAL JUDGE SMITH
DEPUTY UPPER TRIBUNAL JUDGE MONSON
Between
Nt (Sri Lanka)
(anonymity direction MADE)
Appellant
and
Secretary of state for the home department
Respondent
Representation:
For the Appellant: Ms Ursula Miszkiel, Counsel instructed by KT Solicitors Ltd
For the Respondent: Ms S Lecointe, Senior Home Office Presenting Officer
DECISION AND REASONS
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Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, we make an anonymity order. Unless the Upper Tribunal directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the appellant. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of Court proceedings.
Introduction
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This appellant was the second appellant in the case of GJ & Others (Sri Lanka) CG [2013] UKUT 00319, and the second appellant in the Court of Appeal case of MP and NT [2014] EWCA Civ 829. This is his appeal against the decision of First-tier Tribunal Judge Khawar, promulgated on 11 March 2020, by which he dismissed the appellant’s appeal against the respondent’s refusal on 22 November 2019 to accept his fresh claim for asylum based on his asserted sur place activities in the UK, in particular his claim to be a long-standing activist for the TGTE, which has been proscribed by the Sri Lankan government (“GoSL”).
Relevant Background
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In GJ, at paragraph [432], having heard oral evidence from the appellant and submissions, the UT referred to the appellant as having not taken any part - still less a significant part - in Tamil separatist activity in the UK. The appellant also did not claim to have engaged in Tamil separatist activity in his second appeal to the Court of Appeal in 2014.
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His case was remitted back to the UT for reconsideration because the UT was found by the Court of Appeal in MP and NT to have erred in law in holding that it appeared that the appellant was not of sufficient concern in 2009 to be one of the 11,000 active LTTE cadres who were considered to require re-education through the rehabilitation programme. At [43] of MP and NT, the Court said that the problem with this approach was that the appellant was released following payment of a huge bribe only three months after the commencement of his detention. The selection process for rehabilitation or prosecution was still taking place until mid-2010. It was plain that the authorities knew enough about the appellant to move him to Anuradhapura Camp within two days. It was also not without significance that his cousin was still in detention four years after the end of the civil war. The Court continued: “The UT was entitled to attach significance to the fact that the appellant has not participated in Tamil separatist activity in the United Kingdom but that is not an absolute pre-requisite for protection under the Guidance.”
The Decision of Upper Tribunal Judge Coker
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On 29 April 2015, the appellant’s appeal came before Upper Tribunal Judge Coker for reconsideration following the second remittal from the Court of Appeal. In a witness statement signed on 11 February 2015 that was filed for the hearing, the appellant claimed for the first time that he had been involved in diaspora activities since 2011.
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In her decision dated 3 May 2015, UTJ Coker gave her reasons for dismissing the appellant’s appeal on all grounds raised, including the new ground that he would be perceived to be a threat to the integrity of Sri Lanka as a single state because he had, or would be perceived to have, a significant role in relation to post-conflict Tamil separatism within the diaspora.
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At [14], UTJ Coker summarised the evidence which he gave about his diaspora activity. He said that, since he had given his mobile number to one of the organisers of an event, whenever there was an event, he received a text and he went to the event, and to meetings dealing with the event. He was given jobs such as marshalling, taking banners or water or leaflets. UTJ Coker said that there were numerous photographs of him at the demonstrations wearing a reflective jacket and/or with a loud hailer. The appellant confirmed in oral evidence that he was not involved with the actual planning of events, but was someone who regularly participated in them, and was regularly called upon to undertake various tasks associated with large-scale events.
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In her discussion of the evidence, UTJ Coker said as follows at [23]:
“There is no doubt but that the appellant has been going on demonstrations on a fairly regular basis since his appeal to the First-tier Tribunal was dismissed and that he has been photographed with a loudspeaker. I accept that he was allocated tasks at some of the events such as handing out leaflets, taking banners to the demo or bringing water. These were tasks that were given to him by the organisers of the events. He was asked to do things and he did them. He did not, on his evidence, participate in the decision- making process either in terms of who should do what or whether an event should be held, how or where or why it should be held. He is no more than a willing volunteer who essentially did what he was asked to do. He did this for three separate organisations and gave no evidence whatsoever of his understanding of the different organisations’ ideals or political ethos. He gave no indication whatsoever of whether he agreed with one or other or less than another. The only question he was asked about why he did these things was replied to in vague general terms that there are Tamils in Sri Lanka, he is a Tamil and he cannot give up his feelings for the Tamils. These are not the sentiments of a political activist committed to Tamil separatism or working towards the destabilisation of the unitary Sri Lankan State. Even if photographed by the Sri Lankan authorities (which it is reasonable to assume he has been) given the extent of Sri Lanka intelligence it is inconceivable that it would not be known to the authorities (assuming he is identifiable) that he was no more than a person who undertook minor tasks in relation to events, when asked to do so. It is inconceivable that the Sri Lanka authorities would consider him to be an activist working for Tamil separatism merely because of these activities. Ms Isherwood took issue with the late disclosure of his activities and that he had only started to take part in such activities after his appeal to the First-tier Tribunal had been dismissed. Whilst that is correct and his activities do smack of an attempt to bolster his claim, even at its highest, namely that he was asked to do the various jobs, those activities are not commensurate with the descriptive role submitted by Mr Spurling as working for Tamil separatism and (or indeed ‘or’) seeking to destabilise the State.”
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UTJ Coker went on to make findings on the other main thread of the appellant’s asylum claim, which was that there was continuing adverse interest in him on account of his history, including him being allegedly listed as an escapee from Anuradhapura camp - and that this continuing adverse interest was manifested in the fact that the appellant’s mother had been visited by security forces in 2011, 2013 and 2014. UTJ Coker said:
“38. [307] and [308] of GS sets out the process of obtaining a Temporary Travel Document. Of critical importance is the underlying acceptance that an individual cannot be expected to lie in order to protect himself from the threat of persecution. TTDs are issued from Colombo; it is more likely than not that the Sri Lankan authorities can distinguish those waging an alternative war and those who are not involved with attempts to revive the LTTE in the diaspora (see [323] of GS. From the high level of intelligence the security services have of individuals both within Sri Lanka and in the diaspora, it can be assumed that the authorities are aware that the appellant was in the camps and is now in the UK; has attended demonstrations and handed around leaflets and shouted using a loudhailer etc. It can be assumed that the authorities know and have a record of his activities for the LTTE - including manning a checkpoint when the LTTE controlled the area and his forcible recruitment to dig bunkers and help with the wounded in the closing stages of the war; of his brother’s disappearance and the incarceration of his cousin.
39. It cannot be concluded that the applicant’s activities in the UK are significant political activities that would attract the adverse attention of the GOSL as being intended to destabilise the State.
40. Even though the applicant had been in the camps and not gone through the rehabilitation process, the concern of the GOSL now is not what happened then but what an individual might do in the future. As [351] of GS says, Tamils returning from the diaspora now who have not...
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