The Home Office has been refused permission to appeal against the latest Sri Lankan country guidance decision. The case is KK and RS (Sri Lanka) v Secretary of State for the Home Department [2022] EWCA Civ 119.

Background

Last year, in KK and RS (Sur place activities: risk) Sri Lanka CG [2021] UKUT 130 (IAC), the Upper Tribunal gave guidance on Sri Lankan asylum claims based on actual or imputed political opinion. It confirmed the continuing applicability of the previous country guidance — GJ and others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 319 (IAC) — as well as clarifying what exactly a “significant role” in Tamil separatism means and addressing the likely attitude of the Sri Lankan government to involvement with diaspora organisations such as TGTE. It also considered the position for those who would wish to express separatist views on return to Sri Lanka, but would refrain from doing so for fear of persecution (the HJ (Iran) point).

The appellants KK and RS both won their individual asylum appeals. The Home Office was refused permission to appeal by the tribunal and was granted an oral hearing at the Court of Appeal to renew its application for permission. All six grounds of appeal failed.

“Amendment” of GJ

One of the risk categories in GJ was those who had, or were perceived to have, a “significant role” in post-conflict Tamil separatism. Somewhat unhelpfully, however, the Upper Tribunal didn’t define what a “significant role” actually was. That left room for the Home Office to argue in subsequent cases that Sri Lankans who support a pro-separatist organisation but haven’t joined it, taken on a formal role, or acquired a public profile, aren’t “significant” enough to be at risk.

The Upper Tribunal in KK and RS said that was wrong. It clarified that a “significant role” requires neither a formal position nor a high profile. What matters is the nature and extent of the person’s political activities, set against the background of their and their family’s history in Sri Lanka. 

In the Court of Appeal, the Home Office said that the tribunal was wrong to “amend” the country guidance in GJ by explaining what “significant role” meant. Relying on comments from former Upper Tribunal President Blake in another case, it argued that there had to be “durable and well-established changes” in Sri Lanka before the KK and RS tribunal could add to what was said in GJ.

Lord Justice Underhill, giving the leading judgment, called this argument “misconceived”. Once the Upper Tribunal has decided to give new country guidance, it is “free to give whatever guidance it believes will be useful and is justified by the evidence which it hears”, whether the situation has changed or not.

An essentially identical argument about the tribunal’s decision to give guidance on the HJ (Iran) principle failed for the same reasons.

Motivation and “hangers on”

A recurring theme in sur place asylum claims is the Home Office alleging that the claimant is merely an opportunistic “hanger on” – in other words, that they don’t really support the cause they’re protesting about. In Sri Lankan cases, it’s frequently argued that a person photographed displaying a banner outside the High Commission doesn’t actually believe in Tamil separatism, and is just pretending that they do in order to get asylum.

The Upper Tribunal in KK and RS said it doesn’t matter. If the government of Sri Lanka perceives the person to have a significant role, then it “will have little or no inclination to enquire into an individual’s good faith or lack thereof”. The person will be at risk, and entitled to asylum, even if they are a hanger on.

Unsurprisingly, the Home Office wasn’t happy with this conclusion and tried to convince the Court of Appeal that it was contrary to the evidence. Underhill LJ disagreed. He pointed out that a government whose aim was to “identify those who are an actual or perceived threat to the integrity of the Sri Lankan state” might be “distinctly sceptical” of a returnee’s claim that it was all an act, and added:

It must be recalled that the question only arises where a person is known to have taken part in activities which, by reference to the other factors specified by the Tribunal (including the nature, extent and duration of those activities), show them playing a significant role in separatist activity… If a person’s activities pass that threshold, it is not difficult to see that the [government of Sri Lanka] might not wish to take the trouble of trying to ascertain how sincere they were; and in any event that was a conclusion which the Tribunal was unarguably entitled to reach.

He acknowledged, as did the tribunal, that a hanger on may well not be at risk if the Sri Lankan authorities already have information showing the person to be insincere. The point, however, is that they are unlikely to go looking for that information.

Expression of separatist views on return

The judgment being appealed had found that anyone publicly expressing separatist views in Sri Lanka is likely to be detained and persecuted. The Home Office argued that this was wrong, and pointed the Court of Appeal to evidence of specific instances in which, it claimed, the government of Sri Lanka had tolerated such views.

Underhill LJ gave this fairly short shrift, criticising the Home Office for “island-hopping” in its reliance on isolated snippets of evidence in an attempt to undermine a conclusion that was “conspicuously thorough and cogent”.

Conclusion

The country guidance in KK and RS stands. Although this judgment dismissing the appeal against it has been reported, Underhill LJ was at pains to point out that it is the Upper Tribunal’s judgment that immigration judges should refer to.

The Upper Tribunal had provided welcome clarification of what it means to have a “significant role” in Tamil separatism, and it is a relief that the Court of Appeal endorsed its decision to do so. The country guidance on “hangers on” was equally helpful, although in practice Presenting Officers frequently fail to read beyond the headnote and continue to allege bad faith as an answer to claims of sur place activity. It is to be hoped that Underhill LJ’s comments will put an end to this practice. 

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