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Cite as: [2017] EWCA Civ 2412

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Neutral Citation Number: [2017] EWCA Civ 2412
Case No: C5/2016/3429


Royal Courts of Justice
Strand, London, WC2A 2LL
12 December 2017

B e f o r e :



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Ms Antonia Benfield (instructed by Theva Solicitors) appeared on behalf of the Applicant
The Respondent did not appear and was not represented



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  1. The two applicants renew their applications for permission to appeal against the decision of the Upper Tribunal dated 29 June 2016 dismissing their appeals against the decision of the First Tier Tribunal dated 16 February 2016 which, in turn, dismissed their appeals against the refusal of their asylum claim by the Secretary of State. Their applications for permission to appeal to the Court of Appeal were refused on paper by Sir Stephen Silber.
  2. The applicants are brothers now aged 27 and 24, Sri Lankan nationals from the Jaffna region where some of the fiercest fighting in the civil war between the Sri Lankan army and the Tamil separatists occurred. Some time after the civil war ended in 2009 they came to the United Kingdom. The first applicant came on 7 July 2010 with entry clearance as a student valid until 16 July 2012. He did not claim asylum until November 2013. The second applicant came on 15 June 2011 with entry clearance as a student valid until 11 October 2012, which was extended until 30 January 2014. He claimed asylum on 13 April 2014.
  3. Their appeals against the refusal of asylum by the Secretary of State had two distinct aspects. 1) Contentions about their activities with the LTTE in Sri Lanka and their detention and mistreatment, which were said to lead to risk on return to Sri Lanka. 2) Contentions about their diaspora or sur place activities since they came to the United Kingdom, which were also said to lead to risk on return to Sri Lanka. In the light of the adverse findings made by the First Tier Tribunal as to delay in the case of the first applicant, inconsistencies in their accounts and their credibility in relation to those accounts of what had occurred in Sri Lanka, the first aspect of their appeals was bluntly hopeless by the time the case was before the Upper Tribunal, as the Upper Tribunal judge essentially found.
  4. In the circumstances, Antonia Benfield, on behalf of the applicants, pursues two narrow grounds related only to the second aspect. First that the Upper Tribunal failed to determine ground 4 of the original grounds of appeal, that is the applicants' challenge to the First Tier Tribunal's determination that the first applicant was not at risk of persecution on the grounds of having given evidence to the United Nations OHCHR Investigation on Sri Lanka, the OISL, through the National Centre for the Prevention and Prosecution of Genocide, the ICPPG, based here in the United Kingdom. It is contended that the First Tier Tribunal erred in its approach to this issue. Secondly that the Upper Tribunal failed properly to apply the country guidance in GJ and Others Post Civil War Returnee Sri Lanka CG [2013] UKUT 319. So far as the first point is concerned, the conclusion of the First Tier Tribunal judge is at paragraph 79 of his decision, which is as follows:
  5. "That leaves the First Appellant's activities with the ICPPG. He says that he has given evidence to the ICPPG, which has been confirmed by the ICPPG (AB1-65). The ICPPG says that its primary objective is to collect evidence against perpetrators of genocide and that it is working with international prosecutors with a view to bringing criminal and civil prosecutions against the Sri Lankan Government and military officials. My attention was not drawn to any evidence that any such prosecutions or proceedings are pending or expected to be announced imminently. At this juncture, it is premature to equate those who have provided evidence to the ICPPG to those who gave evidence to the lessons learned and Reconciliation Commission. If any such prosecution or proceedings are launched, it is far from clear that the first appellant's testimony will be used or otherwise made available in the course of such prosecution or proceedings. The ICPPG says that the First Appellant has provided written evidence but the first appellant did not produce a copy of this evidence. This means that I am unable to form any view about his written evidence, including about whether he has said anything about himself or about anyone else that would make him of adverse interest to the Sri Lankan Government if his evidence has reached them through one of its informers. On the evidence before me I can only see his concerns about this as being speculative. I do not therefore accept that it is reasonably likely that he is of adverse interest to the Sri Lankan government because of anything he has done thus far for the ICPPG."
  6. Ms Benfield submitted to the Upper Tribunal that the FTT was in error in two significant respects. Firstly it was wrong to say that there was no evidence that prosecutions or proceedings are pending or expected to be announced imminently since it was expressly stated that the witness evidence was being passed on to the UNOISL enquiry into war crimes in Sri Lanka. And secondly, that the statement that because the first applicant had not provided a written copy of his evidence, the First Tier Tribunal could not come to a view as to whether it would place him at adverse interest to the Sri Lankan authorities. That was not a concern that was expressed by the First Tier Tribunal judge at the hearing and had it been, counsel would have pointed out that the first applicant could not disclose his evidence that he was giving to the UN enquiry on the basis that it was confidential. Ms Benfield submits that whilst the Upper Tribunal judge referred to this aspect of the First Tier Tribunal's decision, and quoted paragraph 79 at paragraph 16 of his own decision, then referred to the particular ground of appeal at paragraph 21 of his own decision, he did not, in fact, consider this ground of appeal in his consideration of the appeal.
  7. Ms Benfield points out that in the GJ country guidance, one of the categories of individuals identified as at risk of persecution at paragraph 356.7(c) was those who had given evidence to the Lessons Learned and Reconciliation Commission implicating the Sri Lankan authorities in alleged war crimes, which reported in November 2011. The evidence given to the UNOISL through the ICPPG post-dated both that report and the GJ country guidance. The possibility that there might be other individuals who gave evidence to some other enquiry, who would be equally at risk was raised in the Court of Appeal in MP and NT [2014] EWCA Civ 829, where Underhill LJ said at paragraphs 36 and 37:
  8. "The complaint in relation to this risk category is it is too narrow. The ground of appeal is advanced on behalf of the appellants and it is also vigorously supported by submissions made on behalf of the Intervener, Tamils against Genocide (TAG), represented by Ms Shivani Jegarajah and Ms Parosha Chandran. Their submissions essentially seek to extend the need for the protection to, (1) individuals who did not give evidence to the LLRC, but wish to give evidence to any future enquiry or investigation and (2) individuals who may never give such evidence but who may wish to speak out about egregious conduct witnessed by them - whether for therapeutic, political or other personal reasons. As to the second group, it is submitted that their protection needs are comparable to those of homosexuals who might be returned to Iran (see HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31) or citizens of Zimbabwe who might feel obliged to simulate support for ZANU/PF on return (RT (Zimbabwe) v Secretary of State for the Home Department [2012] UKSC 38
    At the moment, the evidence about these circumstances is understandably vague and speculative. It may well be that, if international pressure were to lead to the establishment of a different form of enquiry, the position would call for further consideration in a case in which appellants could give an adduce evidence about specific difficulties. However, we are not in that position, (although Ms Jagarajah was able to point to current developments at the United Nations and elsewhere which could give rise to such developments). Nor is the evidence of the second putative group in concrete form. It rests on a passage in the report of Dr Smith which, on analysis, seems to relate to those who have provided evidence of war crimes. At this stage, there is no evidence of an evidence-receiving body beyond the LLRC in relation to which protection is established."

    7. As Ms Benfield correctly points out, what was then vague and speculative has now come about. Individuals, including the first appellant, have given evidence to the UN enquiry and although it is true that he has not yet been called to give oral evidence, it is the case that the letter from the ICPPG states in terms that he is one of the witnesses who is likely to be asked to provide evidence in person in establishing the correct position and it is also clear from that letter, that there is now a current enquiry by the UNOISL. There is also evidence from the United Nations that individuals within Sri Lanka who have given evidence to the enquiry have been the subject of persecution. Ms Benfield submits that the judgment in MP recognises that in that eventuality, the risk category in GJ might well be too narrow.

    8. In my judgment there is considerable force in these submissions and it seems to me that this ground does raise an important point of principle, namely whether those who have given evidence to the UNOISL are as much a category at risk as those who gave evidence to the LLRC. I do not consider that either the First Tier Tribunal or the Upper Tribunal has dealt with this point adequately. Accordingly I will give permission to appeal on the first ground.

    9. In relation to the second ground, the thrust of Ms Benfield's submissions is that neither the First Tier Tribunal nor the Upper Tribunal has given proper consideration to the risk to the appellants on return to Sri Lanka in the light of their diaspora activities in the United Kingdom. I have to say that I am more sceptical as to whether this ground is arguable or satisfies the second appeals test given that the First Tier Tribunal dealt with this issue fully and carefully in its decision. However, I have been persuaded by Ms Benfield that insufficient weight was given to the appellants involvement with the Transnational Government of Tamil Elan, TGTE, particularly that of the second appellant and that it is arguable that their membership of that organisation could place the appellants at risk. This is a matter which was, at least, considered to some extent in the more recent decision of this court in UB v Secretary of State [2017] EWCA Civ 85, a decision given on 22 February of this year. Furthermore it seems to me that if the first appellant's first ground of appeal is successful, that could have a significant impact on whether viewed in the round the diaspora activities of the first appellant and his brother including his giving evidence to the UNOISL was such as to place them in one of the risk categories in GJ or in a further risk category extending beyond GJ in the light of more recent developments. In all the circumstances, permission to appeal on both grounds will be granted.

    Order: Permission granted.

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