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Anonymous war crimes evidence against Sri Lankan government does not create a risk of persecution

Anonymous war crimes evidence against Sri Lankan government does not create a risk of persecution

The KK brothers are two young men from Sri Lanka who claimed asylum in the UK off the back of claimed associations with the Tamil Tigers. Their asylum applications were rejected, by the Home Office and on appeal up through the immigration tribunals. In the Court of Appeal, their appeal centred on evidence given by KK the elder to an inquiry run by the Office of the High Commissioner for Human Rights Investigations on Sri Lanka, referred to in the judgment as UN OISL.

KK’s lawyers conceded that “even now there is no clear evidence that anything the First Appellant wrote or said will be known or will become known to the Sri Lankan authorities”. Lord Justice Irwin, citing GJ and Others (post-civil war; returnees) Sri Lanka CG [2013] UKUT 329 (1AC), held that to be decisive: “it is only when the identity of the witnesses is known to the Sri Lankan authorities that the relevant risk arises”. Anyone claiming to be at risk because of their involvement with UN OISL would have to be identified as a witness:

I stress the word “identified” since that aspect of risk would be consistent with the ruling in GJ and accords with common sense. It would seem inherently unlikely that anonymised evidence channelled through one or more submissions from organisations feeding information to such an inquiry as the UN OISL could be a proper basis for establishing the necessary level of risk.

In theory this was obiter (not binding as precedent) and so open for debate in a future case, although with Hickinbottom and Underhill LJJ agreeing with Irwin’s reasoning it seems like a tall order. The case is KK (Sri Lanka) & Anor v Secretary of State for the Home Department [2019] EWCA Civ 59.

Conor James McKinney

CJ is Free Movement's deputy editor.

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