In SR (Sri Lanka) v Secretary of State for the Home Department [2022] EWCA Civ 828, the Court of Appeal has considered whether an asylum seeker attending political demonstrations needs to be genuinely committed to the cause being promoted at the protest. Ultimately, genuine belief is relevant, but not decisive.

This has previously been considered by the Upper Tribunal in KK and RS (Sur place activities, risk) Sri Lanka (CG) [2021] UKUT 130 (IAC) (see Laura’s write-up here). The Home Office’s attempt to appeal that decision was unsuccessful (see Deborah’s write-up here). Nothing in SR (Sri Lanka) overrules or modifies what was said in KK and RS.

When is genuineness relevant?

The case concerned a Sri Lankan man who had attended Tamil protests in the UK. The First-tier Tribunal found that this was “entirely self-serving and not motivated by a genuine commitment to the cause of an independent Tamil state” [paragraph 57].

SR argued on appeal that the First-tier Tribunal judge was wrong to test whether he had a genuine commitment to the cause. He would be questioned on arrival in Sri Lanka and would have to admit attending anti-government protests; at that point, “the nuance of whether ‘he really meant it or not’ will not save him” [63]. The interrogator, SR said, would not care if his motivation was genuine.

Lady Justice Elizabeth Laing, providing the leading judgment, accepted that had this been the only test of the validity of the claim, it would have been an error of law [97]. But this was not what the First-tier Tribunal did. Rather, the claim was rejected because:

• the evidence was submitted late with no reasonable explanation for the delay,
• the evidence was limited, consisting of some undated photographs,
• the appellant had not engaged in any political activities for two years,
• the description of those activities in a supporting letter seemed greatly exaggerated, and
• the judge was not satisfied that SR’s limited activities would be known to the Sri Lankan authorities or of any interest to them.

This last point is crucial. If the judge finds that someone would come to the attention of the authorities and be questioned on return, the genuineness of their belief does become irrelevant:  KK and RS (Sur place activities, risk) Sri Lanka (CG) [2021] UKUT 130 (IAC) at [494] and KK and RS (Sri Lanka) [2022] EWCA Civ 119 at [20].

In his short concurring judgment Lord Justice Underhill highlighted that:

… it is well-established that in some circumstances an applicant for asylum can, however unpalatable this may be, rely on sur place activities undertaken opportunistically and without genuinely holding the political opinions that are said to put them at risk on return… it does not follow that it was irrelevant for the tribunal to consider whether the Appellant’s professed separatist opinions were genuinely held… if they were not genuine that is relevant to – though not, I accept, decisive of – the question whether they are likely to have come to the attention of the Sri Lankan authorities or (if they did) to have been taken seriously by them. [107]

As recognised in KK and RS it is also relevant to the argument, based on HJ (Iran) [2010] UKSC 31 and RT (Zimbabwe) [2012] UKSC 38, that nobody should be forced to have or express an opinion in which he does not believe:

If the Appellant does not genuinely hold separatist opinions, he will not be put in a position where he is compelled to conceal those opinions on return or… to lie if questioned at the airport. [107]

A finding that opinions are not genuinely held is therefore fatal to any such argument.

Assessing credibility

SR also argued that the First-tier Tribunal had made an error in describing aspects of his claim as “incredible”, as this applied too high a standard of proof. The court thought that this was irrelevant:

It is a consequence of the lower standard [of proof in asylum claims] that a judge is not required to make a positive finding that the evidence on which an applicant relies in support of their claim is true. But it does not of course follow that if the judge finds all or part of that evidence to be incredible that is irrelevant to the overall assessment which has to be made. [106]

As the First-tier Tribunal had not fallen into error in its approach to credibility, or the genuineness of the appellant’s political beliefs, the appeal was dismissed.

Boiler-plate paragraphs

Finally, the case highlights the risks of using content from previous cases when drafting (which most lawyers do). As, it seems, do judges:

… the FtT noted, in paragraph 11, in what seems to be a boiler-plate paragraph, the relevance to any assessment of proportionality under article 8 of the best interests of A’s minor children. A has no minor children. The likeliest explanation is that the judge used at least one standard paragraph in the determination and then did not proof-read the determination when she had finished writing it. [30]

Elizabeth Laing LJ was “troubled” by this:

It suggests, first, that the judge did not take the care in writing the 2020 determination which is important in every appeal, and particularly in an asylum appeal. Second… it is evidence of an automatic and uncritical use of a standard paragraph. It potentially undermines the reader’s trust in other legal directions in the 2020 determination. [86]

Despite her misgivings, this was not enough on its own to allow the appeal. Nonetheless, a useful reminder of the importance of proofreading your work!

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