The new Sri Lanka country guidance judgment in KK and RS (Sur place activities, risk) Sri Lanka (CG)  UKUT 130 (IAC) “clarifies and supplements” the previous decision in GJ and others  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:
- the nature of the associated organisation
- the type of activities undertaken (role played may “significantly increase” risk — para 490)
- the extent of any activities
- the duration of any activities
- any relevant history in Sri Lanka
- 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:
- the infiltration of diaspora organisations
- the photographing and videoing of demonstrations, and
- 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:
- The first question is genuineness of the belief in establishment of a Tamil Eelam.
- 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”.
- 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.
- 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):
- 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.
- One journalist claimed that torture did not occur in Sri Lanka and yet was cited as a reliable source in the summaries.
- 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”.
- One third to one half of the sources were from the Sri Lankan regime
- Only one Tamil source was interviewed
- 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:
- Neither was a formal member or held an official role in a Tamil diaspora organisation.
- 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.
- Coming from the war zone may be a positive indicator of genuine nature of Tamil separatism.
- 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.
- 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.
- 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)  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.