New country guidance issued by the Upper Tribunal in Sri Lankan asylum claims

View this post in Tamil here.

The Upper Tribunal (IAC) has issued new country guidance in the case of KK & RS (Sri Lanka) addressing the risk of persecution for Sri Lankan nationals as a result of sur place political activities in the United Kingdom which are (or are perceived to be) in opposition to the government in Sri Lanka. 

The judgment redrafts the country guidance in GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) and supplements that guidance to address recent developments in Sri Lanka and the current perception of the Sri Lankan government to those advocating in support of a Tamil separate state and involved in sur place activities including commemorative events. 

The Tribunal found the Government of Sri Lanka (GoSL) to be an authoritarian regime whose core focus is to prevent any resurgence of a separatism movement within Sri Lanka.  The Tribunal found that the GoSL draws no material distinction between the violent means of the LTTE and non-violent political advocacy including, but not limited to, organisations that have been proscribed and therefore banned as terrorist organisations in Sri Lanka.  Proscription is deemed to be a relatively significant risk factor but not determinative of whether a person faces persecution in Sri Lanka, given that the GoSL has a generally adverse mindset to the Tamil diaspora.  A number of Tamil organisations operating in the UK, including the Transnational Government of Sri Lanka (TGTE), the Global Tamil Forum (GTF) and British Tamil Forum (BTF) were found to be deemed by the GoSL to be fronts for the LTTE and viewed with a significant degree of hostility. The GoSL continues to operate an extensive intelligence-gathering regime in the UK with a view to identifying those working in support of Tamil separatism.

The Tribunal importantly acknowledged that the types of activities of interest to the GoSL that may place a person at risk of persecution are broader than just involvement with named Tamil diaspora organisations, but extends to attending meetings and demonstrations, holding flags or banners displaying the LTTE emblem, attendance at commemorative events, meaningful fundraising, any presence on social media, signing petitions perceived to be anti-government and political lobbying.  Contrary to the often stated position of the Home Office, a person does not need to demonstrate that they have a “significant role” in Tamil separatism by showing that they have a formal position in an organisation nor that their activities were high profile or prominent, but that an indicator-based approach taking into account a range of factors of interest to the GoSL needs to be considered.

The judgment importantly emphasises the need to apply wider principles of refugee law to country guidance frameworks and identified the importance of application of the principle in HJ (Iran) [2010] UKSC 31, as affirmed in RT (Zimbabwe) [2012] UKSC 38, namely that if a person is required to conceal or modify their genuinely held political beliefs to avoid persecution, that they will be entitled to international protection.

Both appellants were successful in their respective appeals. They were accepted to be committed Tamil activists and were found to have a well-founded fear of persecution and at risk of breach of their rights under Article 3 ECHR in the event of their return to Sri Lanka.  Both appellants also succeeded on the basis of HJ (Iran).

Alasdair Mackenzie and Antonia Benfield were instructed on behalf of the appellant KK by Arun Gananathan of Birnberg Peirce Solicitors and Alasdair Mackenzie and Ali Bandegani of Garden Court Chambers were instructed by Laura Smith of JCWI on behalf of the appellant RS.

Doughty Street Chambers will be hosting a seminar with the lawyers involved in the case to discuss the judgment and its application on Monday 14th June 2021 at 3pm

To register your place at this online seminar, click here.

The full judgment is available here.