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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> KK (Sri Lanka) v Secretary of State for the Home Department  EWCA Civ 2412 (12 December 2017)
Cite as:  EWCA Civ 2412
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ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION & ASYLUM CHAMBER)
Strand, London, WC2A 2LL
B e f o r e :
| KK (SRI LANKA)
|- and -
|SECRETARY OF STATE
FOR THE HOME DEPARTMENT
8th Floor, 165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 704 1424
Web: www.DTIGlobal.com Email: TTP@dtiglobal.eu
(Official Shorthand Writers to the Court)
The Respondent did not appear and was not represented
Crown Copyright ©
LORD JUSTICE FLAUX:
"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."
"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  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  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  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.