English Court of Appeal refuses asylum appeal by man who claimed to have participated in Sri Lankan civil war

About this case:

• Citation:
  [2022] EWCA Civ 828
• Judgment:
  External link
• Court:
  England and Wales Court of Appeal
• Judge:
  Lady Justice Laing

The appellant, A (SR), originally claimed asylum in the UK at port on 11 September 2012. He alleged that the risk to his life had been increased by activities he had undertaken in the UK on behalf of the Transnational Government of Tamil Eelam.

The appeal was heard in the Court of Appeal of England and Wales by Lord Justice Underhill, Lord Justice Dingemans and Lady Justice Laing. Abin Mahmood appeared for the appellant and Ben Keith for the Secretary of State for the Home Department.

Low-level helper

The appellant claimed to have helped the Liberation Tigers of Tamil Eelam during the Sri Lankan civil war and had left the country illegally. He further alleged that he had been detained and tortured by the Sri Lankan authorities and would be at further risk if he returned to the country. His protection claim was refused by the Home Secretary in a decision dated 16 July 2019.

In the refusal letter, the Secretary of State concluded that the appellant was only a “low-level helper” and while there was evidence that he might be questioned on arrival in Sri Lanka, there were no reports of any arrests for diaspora activities with any proscribed groups. She did not accept that A had a genuine fear of returning to Sri Lanka or that the evidence was sufficient that he was at risk.

An appeal was made to the First-tier Tribunal, which concluded that the appellant’s claim was “inherently incredible” and not supported by sufficient reliable evidence. It found that he had left Sri Lanka on his own passport and not, as he claimed, a false one, and he was not in any of the risk categories suitable for a protection claim.

Before the Court of Appeal it was submitted that the FtT had erred in law by finding A’s claim to be “incredible” rather than “implausible”, and applied a higher standard of proof than it should have done. Further, the FtT had applied the wrong test to his activities in the UK, as country guidance demonstrated that regardless of his level of commitment, the fact that he had attended protests against the Sri Lankan government would cause him to be persecuted.

Correct burden of proof

In her opinion, with which the other judges agreed, Lady Justice Laing observed: “[The FtT] stated, correctly, that the burden of proof was on A. It stated that the standard A must reach was to show, as regards each aspect of his claim, that there was a ‘real risk’ (such as a real risk of persecution for a Convention reason). The FtT therefore said that it would apply, to all aspects of A’s claim, a standard of proof which was as favourable to A as it could be.”

She continued: “The FtT directed itself correctly in law about the risk of persecution based on A’s account of his experiences in Sri Lanka. The authorities relied on by Mr Mahmood support the FtT’s legal approach. It applied the correct burden of proof in form and in substance. It was entitled to decide whether or not it was satisfied of the facts asserted by A. In doing so, it did not err in law in describing parts of his account as incredible, and explaining why it found them incredible. Its use of the credibility of those claims as a tool for assessing them does not show that it applied the wrong standard of proof to A.”

Addressing the appellant’s activities in the UK, Laing LJ said: “The FtT rejected this part of A’s claim for a number of quite different, but sound, reasons. The evidence in support of that part of the claim had been submitted very late, with no reasonable explanation for that delay. The evidence was limited. It consisted of some photographs of A attending a Tamil protest or protests in the United Kingdom on unknown dates.”

She went on to say: “On his own case, A had not engaged in any activities for two years. His explanation for the lack of recent activity was not supported by any evidence. The description of A’s activities did ‘not fit with his own account and seem[ed] greatly exaggerated’ [and] the FtT was not satisfied that those limited activities would be known to the Sri Lankan authorities or of any interest to them.”

Laing LJ concluded: “In order to have a viable claim, A would have had to persuade the UT (and, more importantly, the FtT) of the truth of the core of his protection claim: essentially, that his profile was such that he would be at risk of ill treatment by the authorities if he returned to Sri Lanka. He did not do so. I have held that the FtT did not err in law in dismissing the protection claim.”

The appeal was therefore dismissed.