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Game-changer for Sri Lankan Tamil activists seeking asylum in the UK
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Game-changer for Sri Lankan Tamil activists seeking asylum in the UK

The new Sri Lanka country guidance judgment in KK and RS (Sur place activities, risk) Sri Lanka (CG) [2021] UKUT 130 (IAC) “clarifies and supplements” the previous decision in GJ and others [2013] UKUT 319 (IAC) “with particular reference to sur place activities”. GJ was a complicated and often seemingly contradictory decision with a headnote that led many asylum claims from Tamil activists to fail. KK and RS changes all that. 

What sur place activities is the Sri Lankan government interested in?

Having a “significant role” in Tamil diaspora activity remains the litmus test. The major problem with GJ was that the term was not defined. Helpfully, the Upper Tribunal in KK and RS explains that it is not necessary to have a formal role, to be a member of a particular organisation, or to be high profile or prominent (see paragraphs 455-456). The tribunal provides a non-exhaustive list of relevant factors:  

  1. the nature of the associated organisation
  2. the type of activities undertaken (role played may “significantly increase” risk — para 490)
  3. the extent of any activities
  4. the duration of any activities
  5. any relevant history in Sri Lanka
  6. any relevant familial connections

KK and RS broadens the list of UK activities that generate risk, including attending Heroes’ Day commemoration events, signing petitions, social media activity (whether writing or reposting) and appearance online (405). 

The relevance of a history with the Liberation Tigers of Tamil Eelam (LTTE) is an important addition. The government of Sri Lanka “regards the TGTE [Transnational Government of Tamil Eelam] as a ‘front’ for the LTTE: as a matter of the logic reasonably likely to be applied by the regime, actual or perceived LTTE links in the past would not be left out of account”. 

Similarly, an LTTE history, whether personal or familial, combined with a very small level of Tamil separatist activity may meet the risk threshold. However, a pre 2009 LTTE history (or imputed history) will not alone create a real risk “save in very exceptional circumstances” (498).

Familial connections to the LTTE or other Tamil separatists is another helpful addition though they are “generally considered to carry less weight” than other factors (499).

Motivation is not relevant to a risk assessment based on the Sri Lanka authorities’ monitoring of the UK diaspora; it is the perception of the Sri Lankan government that is all important, and the person may still be perceived as a Tamil separatist (494). (It is relevant to whether an individual would want to continue activities in Sri Lanka per the later HJ (Iran) assessment.) 

How will the government know about any sur place activities?

Through its monitoring: the tribunal held that the Sri Lankan government has greater capacity to gather information than when GJ was decided (406) and “continues to operate an extensive intelligence-gathering regime which attempts to cover ‘all forms of communication’” (405). It acquires information through:

  1. the infiltration of diaspora organisations
  2. the photographing and videoing of demonstrations, and 
  3. the monitoring of the Internet and unencrypted social media

Monitoring alone will not usually constitute persecution. However, in an important paragraph that does not form part of the headnote, the tribunal accepts that there will be cases where being on the watchlist alone will be persecutory due to the appellant’s “very significant mental health problems” (520).

Ultimately those who have a “significant role” are detained after their return to their home, while those without a significant role continue to be monitored (paragraph 19 of the headnote, reproduced in full below).

If an organisation is proscribed it is “reasonably likely to entail a higher degree of adverse interest”. But even for those which are not proscribed, “it is reasonably likely that there will, depending on whether the organisation in question has, or is perceived to have, a separatist agenda, be an adverse interest on the part of GoSL, albeit not necessarily at the level applicable to proscribed groups” (374). 

The tribunal also held that the TGTE (which has been proscribed since 2014) is regarded with “a significant degree of hostility”, as are the Global Tamil Forum and British Tamil Forum (headnote paragraph 6). It is “likely” there is also hostility towards Tamil Solidarity which has never been proscribed. 

HJ (Iran) and self-censorship on return

The tribunal also considered the risk to returnees based on what they “would do, or at least wish to do, after return” to Sri Lanka (541). This is relevant to returnees on the government’s watchlist without a “significant role” (headnote 17) but also those for whom the regime holds no records. The tribunal applied the HJ (Iran) step-by-step approach to the expression of political opinion: 

  1. The first question is genuineness of the belief in establishment of a Tamil Eelam.  
  2. Second is whether open expression of separatist belief would result in persecutory treatment. Any separatist activity is “incredibly dangerous” (547). In the North and East “the authorities would be reasonably likely to become aware of pro-separatist activities or the open expression of such beliefs undertaken by a returnee, in whatever form they may be manifested”. 
  3. Third, the tribunal must ask whether the individual would wish to express their political opinion on return. If the answer is yes, they will be a refugee. 
  4. Finally, if they would not do so, the question is why.  If a material reason is persecution, the person is a refugee.

The Home Office had argued that Tamils could instead support federalism, which the tribunal robustly rejected: “In our judgment, it is wrong in principle to expect an individual who holds a particular set of political beliefs to ‘make do’, as it were, with another, solely in order to avoid persecution or serious harm. This would amount to a material modification of the protected right. To conclude otherwise would run the risk of diluting the protection afforded by the Refugee Convention” (553).

Shortcomings of Home Office policy and evidence 

The tribunal’s analysis of the Home Office’s evidence is useful to note more generally.

On the Country Policy and Information Note on Tamil separatism, which has now been withdrawn: the tribunal explains “it is simply evidence of the respondent’s position as it was at the date of its publication in May 2020” (301). The Home Office is not an expert witness and its analysis is not relevant before the tribunal; insofar as it summarises evidential sources, it is those sources to which weight can be attached. This is clearly right: otherwise every immigration law firm could publish a document providing its opinion on who is at risk and then rely on those words in court as if it were evidence.

On the 2019 fact-finding mission to Sri Lanka: only the “interview notes” section can have any weight before the tribunal. This would not be obvious from the presentation of the fact-finding report, which includes the interview notes as an add-on, in an annex to the document after two sets of Home Office “summaries”. Even concerning the section of the report that could potentially have evidential value, the tribunal makes a number of criticisms to conclude that the fact-finding report is of “limited value” (289): 

  1. Despite the report being intended to inform analysis of Tamil aylum appeals, sources had a “low level of general awareness” of the TGTE. The tribunal did not accept the argument that this indicated a lack of risk to separatists. 
  2. One journalist claimed that torture did not occur in Sri Lanka and yet was cited as a reliable source in the summaries. 
  3. The International Organization for Migration is quoted as holding the view that Tamil communities claim to be victims of discrimination to serve their “own ends”. 
  4. One third to one half of the sources were from the Sri Lankan regime
  5. Only one Tamil source was interviewed
  6. One source had disapproved of their interview notes

See further this report by the Asylum Research Centre (ARC) Foundation showing that the summaries in the CPIN and FFM reports are highly inaccurate.

The tribunal also criticises the methodology of a 2019 report by the Australian Department of Foreign Affairs and Trade, a popular Home Office source:

…none of the sources are identified, there is no explanation as to how the information from these sources was obtained, and there is no annex containing, for example, records of any interviews (unlike the FFM). Indeed, it is unclear whether any formal interviews took place. The report does not provide direct quotes from any source. In light of these matters, it is difficult to gauge the reliability of the sources which have informed the ‘judgement and assessment’ applied to them by the authors of the report.

Finally, the tribunal rejected “the unqualified assertion contained in a letter from the British High Commission in Colombo, dated 18 May 2017, that ‘… members of [the eight groups de-proscribed in 2015] whether active or lay, have no reason to fear persecution as a consequence of their affiliation to them from the government of Sri Lanka'” (374). 

The outcome for KK and RS themselves

Both appellants were recognised as refugees by the tribunal and therefore features of their cases are noteworthy: 

  1. Neither was a formal member or held an official role in a Tamil diaspora organisation. 
  2. Both were subject to previous significant credibility findings – both had appeals dismissed with their accounts of torture rejected and this was not open to be re-argued in these proceedings. 
  3. Coming from the war zone may be a positive indicator of genuine nature of Tamil separatism.
  4. In the case of KK, the Upper Tribunal overturned a finding of the First-tier which questioned whether the claimed activism was consistent with suffering from the mental health effects of torture. 
  5. RS’s risk was raised due to her brother having been a member of the LTTE in 2007. The guidance confirms that records created are permanent so those with even very LTTE history themselves can rely on these as a relevant factor.
  6. RS’s activities within TGTE were given particular importance by the group as women are underrepresented in TGTE supporters.

Risk of torture in detention

It is now long established – as the Tribunal held at paragraph 321 – that if detained, Tamils are at real risk of torture. And yet the Home Office continues to make immoral and legally indefensible allegations against Tamils who are at risk.

In one recent shameful episode, the Home Office accused Tamil asylum seekers of inflicting torture scars on one another. The Sri Lankan regime used this to discredit international human rights campaigns against torture and referred to Freedom from Torture as a “proxy terror group”. This continued until the Supreme Court in KV (Sri Lanka) [2019] UKSC 10 pointed out that there was no evidence of this practice.

In KK and RS, the Home Office argued that returnees arrested by the authorities could save themselves from harm by informing on their communities, who would then in turn be at risk of torture. Asking refugees to do so could be “relatively innocuous” and that as the Tamil North is underdeveloped, returning Tamils might willingly do so for financial gain. The tribunal did not entertain this frankly offensive and unevidenced submission. To do so would have undermined a legally literate and principled decision, rooted in the evidence, which clearly explains that the majority of sur place activists are reasonably likely to be refugees.

The official headnote

COUNTRY GUIDANCE

In broad terms, GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) still accurately reflects the situation facing returnees to Sri Lanka. However, in material respects, it is appropriate to clarify and supplement the existing guidance, with particular reference to sur place activities.

The country guidance is restated as follows:

(1)       The current Government of Sri Lanka (“GoSL”) is an authoritarian regime whose core focus is to prevent any potential resurgence of a separatist movement within Sri Lanka which has as its ultimate goal the establishment of Tamil Eelam.

(2)       GoSL draws no material distinction between, on the one hand, the avowedly violent means of the LTTE in furtherance of Tamil Eelam, and non-violent political advocacy for that result on the other. It is the underlying aim which is crucial to GoSL’s perception. To this extent, GoSL’s interpretation of separatism is not limited to the pursuance thereof by violent means alone; it encompasses the political sphere as well.  

(3)       Whilst there is limited space for pro-Tamil political organisations to operate within Sri Lanka, there is no tolerance of the expression of avowedly separatist or perceived separatist beliefs.

(4)       GoSL views the Tamil diaspora with a generally adverse mindset, but does not regard the entire cohort as either holding separatist views or being politically active in any meaningful way.

(5)       Sur place activities on behalf of an organisation proscribed under the 2012 UN Regulations is a relatively significant risk factor in the assessment of an individual’s profile, although its existence or absence is not determinative of risk. Proscription will entail a higher degree of adverse interest in an organisation and, by extension, in individuals known or perceived to be associated with it. In respect of organisations which have never been proscribed and the organisation that remains de-proscribed, it is reasonably likely that there will, depending on whether the organisation in question has, or is perceived to have, a separatist agenda, be an adverse interest on the part of GoSL, albeit not at the level applicable to proscribed groups. 

(6)       The Transnational Government of Tamil Eelam (“TGTE”) is an avowedly separatist organisation which is currently proscribed. It is viewed by GoSL with a significant degree of hostility and is perceived as a “front” for the LTTE. Global Tamil Forum (“GTF”) and British Tamil Forum (“BTF”) are also currently proscribed and whilst only the former is perceived as a “front” for the LTTE, GoSL now views both with a significant degree of hostility.

(7)       Other non-proscribed diaspora organisations which pursue a separatist agenda, such as Tamil Solidarity (“TS”), are viewed with hostility, although they are not regarded as “fronts” for the LTTE.

(8)       GoSL continues to operate an extensive intelligence-gathering regime in the United Kingdom which utilises information acquired through the infiltration of diaspora organisations, the photographing and videoing of demonstrations, and the monitoring of the Internet and unencrypted social media. At the initial stage of monitoring and information gathering, it is reasonably likely that the Sri Lankan authorities will wish to gather more rather than less information on organisations in which there is an adverse interest and individuals connected thereto. Information gathering has, so far as possible, kept pace with developments in communication technology.

(9)       Interviews at the Sri Lankan High Commission in London (“SLHC”) continue to take place for those requiring a Temporary Travel Document (“TTD”).

(10)     Prior to the return of an individual traveling on a TTD,  GoSL is reasonably likely to have obtained information on the following matters:

i. whether the individual is associated in any way with a particular diaspora organisation;

ii. whether they have attended meetings and/or demonstrations and if so, at least approximately how frequently this has occurred;

iii. the nature of involvement in these events, such as, for example, whether they played a prominent part or have been holding flags or banners displaying the LTTE emblem;

iv. any organisational and/or promotional roles (formal or otherwise) undertaken on behalf of a diaspora organisation;

v. attendance at commemorative events such as Heroes Day;

vi. meaningful fundraising on behalf of or the provision of such funding to an organisation;

vii. authorship of, or appearance in, articles, whether published in print or online;

viii. any presence on social media;

ix. any political lobbying on behalf of an organisation;

x. the signing of petitions perceived as being anti-government.

(11)     Those in possession of a valid passport are not interviewed at the SLHC. The absence of an interview at  SLHC does not, however, discount the ability of GoSL to obtain information on the matters set out in (10), above, in respect of an individual with a valid passport using other methods employed as part of its intelligence-gathering regime, as described in (8). When considering the case of an individual in possession of a valid passport, a judge must assess the range of matters listed in (10), above, and the extent of the authorities’ knowledge reasonably likely to exist in the context of a more restricted information-gathering apparatus. This may have a bearing on, for example, the question of whether it is reasonably likely that attendance at one or two demonstrations or minimal fundraising activities will have come to the attention of the authorities at all.

(12)     Whichever form of documentation is in place, it will be for the judge in any given case to determine what activities the individual has actually undertaken and make clear findings on what the authorities are reasonably likely to have become aware of prior to return.

(13)     GoSL operates a general electronic database which stores all relevant information held on an individual, whether this has been obtained from the United Kingdom or from within Sri Lanka itself. This database is accessible at the SLHC, BIA and anywhere else within Sri Lanka. Its contents will in general determine the immediate or short-term consequences for a returnee.

(14)     A stop list and watch list are still in use. These are derived from the general electronic database.

(15)     Those being returned on a TTD will be questioned on arrival at BIA. Additional questioning over and above the confirmation of identity is only reasonably likely to occur where the individual is already on either the stop list or the watch list.

(16)     Those in possession of a valid passport will only be questioned on arrival if they appear on either the stop list or the watch list.

(17)     Returnees who have no entry on the general database, or whose entry is not such as to have placed them on either the stop list or the watch list, will in general be able to pass through the airport unhindered and return to the home area without being subject to any further action by the authorities (subject to an application of the HJ (Iran) principle).

(18)     Only those against whom there is an extant arrest warrant and/or a court order will appear on the stop list. Returnees falling within this category will be detained at the airport.

(19)     Returnees who appear on the watch list will fall into one of two sub-categories: (i) those who, because of their existing profile, are deemed to be of sufficiently strong adverse interest to warrant detention once the individual has travelled back to their home area or some other place of resettlement; and (ii) those who are of interest, not at a level sufficient to justify detention at that point in time, but will be monitored by the authorities in their home area or wherever else they may be able to resettle.

(20)     In respect of those falling within sub-category (i), the question of whether an individual has, or is perceived to have, undertaken a “significant role” in Tamil separatism remains the appropriate touchstone. In making this evaluative judgment, GoSL will seek to identify those whom it perceives as constituting a threat to the integrity of the Sri Lankan state by reason of their committed activism in furtherance of the establishment of Tamil Eelam.

(21)     The term “significant role” does not require an individual to show that they have held a formal position in an organisation, are a member of such, or that their activities have been “high profile” or “prominent”. The assessment of their profile will always be fact-specific, but will be informed by an indicator-based approach, taking into account the following non-exhaustive factors, none of which will in general be determinative:

i. the nature of any diaspora organisation on behalf of which an individual has been active. That an organisation has been proscribed under the 2012 UN Regulations will be relatively significant in terms of the level of adverse interest reasonably likely to be attributed to an individual associated with it;

ii. the type of activities undertaken;

iii. the extent of any activities;

iv. the duration of any activities;

v. any relevant history in Sri Lanka;

vi. any relevant familial connections.

(22)     The monitoring undertaken by the authorities in respect of returnees in sub-category (ii) in (19), above, will not, in general, amount to persecution or ill-treatment contrary to Article 3 ECHR.

(23)     It is not reasonably likely that a returnee subject to monitoring will be sent for “rehabilitation”.

(24)     In general, it is not reasonably likely that a returnee subject to monitoring will be recruited as an informant or prosecuted for a refusal to undertake such a role.

(25)     Journalists (whether in print or other media) or human rights activists, who, in either case, have criticised the Sri Lankan government, in particular its human rights record, or are associated with publications critical of the government, face a reasonable likelihood of being detained after return, whether or not they continue with their activities.

(26)     Individuals who have given evidence to the LLRC implicating the Sri Lankan security forces, armed forces, or the Sri Lankan authorities in alleged war crimes, also face a reasonable likelihood of being detained after their return. It is for the individual concerned to establish that GoSL will be aware of the provision of such evidence.

(27)     There is a reasonable likelihood that those detained by the Sri Lankan authorities will be subjected to persecutory treatment within the meaning of the Refugee Convention and ill-treatment contrary to Article 3 ECHR.

(28)     Internal relocation is not an option within Sri Lanka for a person at risk from the authorities.

(29)     In appropriate cases, consideration must be given to whether the exclusion clauses under Article 1F of the Refugee Convention are applicable.

APPLICATION OF THE PRINCIPLE IN HJ (IRAN)

It is essential, where appropriate, that a tribunal does not end its considerations with an application of the facts to the country guidance, but proceeds to engage with the principle established by HJ (Iran) [2010] UKSC 31; [2010] 1 AC 596 , albeit that such an analysis will involve interaction with that guidance.

When applying the step-by step approach set out in paragraph 82 of HJ (Iran), careful findings of fact must be made on the genuineness of a belief in Tamil separatism; the future conduct of an individual on return in relation to the expression of genuinely held separatist beliefs; the consequences of such expression; and, if the beliefs would be concealed, why this is the case.

Laura Smith is a solicitor and legal team supervisor at JCWI.

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