The Home Office has been refused permission to appeal against the latest Sri Lankan country guidance decision. The case is KK and RS (Sri Lanka) v Secretary of State for the Home Department [2022] EWCA Civ 119.

Background

Last year, in KK and RS (Sur place activities: risk) Sri Lanka CG [2021] UKUT 130 (IAC), the Upper Tribunal gave guidance on Sri Lankan asylum claims based on actual or imputed political opinion. It confirmed the continuing applicability of the previous country guidance — GJ and others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 319 (IAC) — as well as clarifying what exactly a “significant role” in Tamil separatism means and addressing the likely attitude of the Sri Lankan government to involvement with diaspora organisations such as TGTE. It also considered the position for those who would wish to express separatist views on return to Sri Lanka, but would refrain from doing so for fear of persecution (the HJ (Iran) point).

The appellants KK and RS both won their individual asylum appeals. The Home Office was refused permission to appeal by the tribunal and was granted an oral hearing at the Court of Appeal to renew its application for permission. All six grounds of appeal failed.

“Amendment” of GJ

One of the risk categories in GJ was those who had, or were perceived to have, a “significant role” in post-conflict Tamil separatism. Somewhat unhelpfully, however, the Upper Tribunal didn’t define what a “significant role” actually was. That left room for the Home Office to argue in subsequent cases that Sri Lankans who support a pro-separatist organisation but haven’t joined it, taken on a formal role, or acquired a public profile, aren’t “significant” enough to be at risk.

The Upper Tribunal in KK and RS said that was wrong. It clarified that a “significant role” requires neither a formal position nor a high profile. What matters is the nature and extent of the person’s political activities, set against the background of their and their family’s history in Sri Lanka. 

In the Court of Appeal, the Home Office said that the tribunal was wrong to “amend” the country guidance in GJ by explaining what “significant role” meant. Relying on comments from former Upper Tribunal President Blake in another case, it argued that there had to be “durable and well-established changes” in Sri Lanka before the KK and RS tribunal could add to what was said in GJ.

Lord Justice Underhill, giving the leading judgment, called this argument “misconceived”. Once the Upper Tribunal has decided to give new country guidance, it is “free to give whatever guidance it believes will be useful and is justified by the evidence which it hears”, whether the situation has changed or not.

An essentially identical argument about the tribunal’s decision to give guidance on the HJ (Iran) principle failed for the same reasons.

Motivation and “hangers on”

A recurring theme in sur place asylum claims is the Home Office alleging that the claimant is merely an opportunistic “hanger on” – in other words, that they don’t really support the cause they’re protesting about. In Sri Lankan cases, it’s frequently argued that a person photographed displaying a banner outside the High Commission doesn’t actually believe in Tamil separatism, and is just pretending that they do in order to get asylum.

The Upper Tribunal in KK and RS said it doesn’t matter. If the government of Sri Lanka perceives the person to have a significant role, then it “will have little or no inclination to enquire into an individual’s good faith or lack thereof”. The person will be at risk, and entitled to asylum, even if they are a hanger on.

Unsurprisingly, the Home Office wasn’t happy with this conclusion and tried to convince the Court of Appeal that it was contrary to the evidence. Underhill LJ disagreed. He pointed out that a government whose aim was to “identify those who are an actual or perceived threat to the integrity of the Sri Lankan state” might be “distinctly sceptical” of a returnee’s claim that it was all an act, and added:

It must be recalled that the question only arises where a person is known to have taken part in activities which, by reference to the other factors specified by the Tribunal (including the nature, extent and duration of those activities), show them playing a significant role in separatist activity… If a person’s activities pass that threshold, it is not difficult to see that the [government of Sri Lanka] might not wish to take the trouble of trying to ascertain how sincere they were; and in any event that was a conclusion which the Tribunal was unarguably entitled to reach.

He acknowledged, as did the tribunal, that a hanger on may well not be at risk if the Sri Lankan authorities already have information showing the person to be insincere. The point, however, is that they are unlikely to go looking for that information.

Expression of separatist views on return

The judgment being appealed had found that anyone publicly expressing separatist views in Sri Lanka is likely to be detained and persecuted. The Home Office argued that this was wrong, and pointed the Court of Appeal to evidence of specific instances in which, it claimed, the government of Sri Lanka had tolerated such views.

Underhill LJ gave this fairly short shrift, criticising the Home Office for “island-hopping” in its reliance on isolated snippets of evidence in an attempt to undermine a conclusion that was “conspicuously thorough and cogent”.

Conclusion

The country guidance in KK and RS stands. Although this judgment dismissing the appeal against it has been reported, Underhill LJ was at pains to point out that it is the Upper Tribunal’s judgment that immigration judges should refer to.

The Upper Tribunal had provided welcome clarification of what it means to have a “significant role” in Tamil separatism, and it is a relief that the Court of Appeal endorsed its decision to do so. The country guidance on “hangers on” was equally helpful, although in practice Presenting Officers frequently fail to read beyond the headnote and continue to allege bad faith as an answer to claims of sur place activity. It is to be hoped that Underhill LJ’s comments will put an end to this practice. 

Free Movement

A power cut of seven and a half hours has been approved for tomorrow, revealed the Public Utilities Commission of Sri Lanka (PUCSL).

Accordingly, the power cut will occur in the period of 08 am – 11 pm, it added.

Tomorrow, therefore, is likely to be a darkened day, the PUCSL noted.

MIAP

The Federation of Health Professionals speaking to a briefing in Colombo today (01) urged the public not come to hospitals and complain that they are not aware of a strike action despite being already informed.

The Federation disclosed that they will be holding a 48-hour strike action from 08 am tomorrow (02).

Speaking to the briefing, Ravi Kumudesh emphasised that this strike action comes in following a 14-day hiatus during which the Health Ministry had enough time to prevent one. Had the Ministry used the 14-day period properly, the strike action could have been prevented, he added.

MIAP

A strike action of two days organised by 17 trade unions responding to the Health Sector will be held tomorrow (02) and the day after tomorrow (03).

Speaking on behalf of the Government Nurses Association, its President Saman Ratnapriya stated that his Union will not join the strike action as the Court injunction against it is still in effect.

Following the continuous strike action held recently, the government had promised that their demands will be met. But no promises have been fulfilled yet, due to which the latest strike action has been organised by the Federation of the Health Professionals.

The Cabinet paper on resolving the salary anomalies of the health workers was supposed to be tabled but neither the promises nor the paper have been processed, the trade unions alleged.

The trade unions revealed that they have also informed the Health Secretary that they are ready to discuss the matters at any given time in the understanding that they do not wish to oppress the public in meeting the demands, but also urged the public not to come to the hospitals tomorrow and say that they were unaware of the strike action despite being informed of it in advance.

The Foreign Ministry continues to closely monitor developments in Ukraine.  Towards this end, the Ministry is currently engaged in the evacuation of approximately forty (40) Sri Lankan nationals, including two (02) students in Ukraine via the Ukraine – Polish border.  The process is facilitated by the Sri Lanka Embassies in Warsaw and Ankara, the latter being concurrently accredited to Ukraine.

The Ministry has strengthened the provision of resources to the Sri Lanka Embassy in Warsaw in order to ensure the effective facilitation of the evacuation process. The Ambassadors of Sri Lanka in Ankara and Warsaw continue to maintain close contact with the Sri Lankan nationals leaving Ukraine, in order to enable their safe passage and return to Sri Lanka.

The Foreign Ministry is also engaged in monitoring the status of Sri Lankan nationals in countries which share land borders with Ukraine.  Sri Lanka’s accredited missions are in contact with the relevant Honorary Consuls and Sri Lankan nationals in the respective countries.

The Sri Lanka Embassy in Moscow which is concurrently accredited to Belarus continues to be in close communication with the approximately 1,600 Sri Lankan nationals, including 1,556 students studying in over eight (08) universities / higher education institutes in Belarus.  Sri Lanka’s Ambassador in Moscow is in direct contact with the relevant university authorities, student and parent groups, as well as other concerned institutions in Belarus, with regard to the safety and welfare of the Sri Lankan students.  Regular status updates are being provided to the parents, as deemed necessary.

The Ministry requests Sri Lankan nationals in the region to be in close contact with the relevant Sri Lanka Missions.

Foreign Ministry

Colombo

28 February 2022

A maximum compensation of Rs. 50,000 per hectare will be distributed to the farmers whose crops were damaged during the Maha Season due to the chemical fertiliser ban, the Cabinet concluded.

This compensation will be distributed to the farmers as an incentive, said Agriculture Minister Mahindananda Aluthgamage.

Accordingly, 1.1 million farmers will be compensated for eight hundred thousand hectares of crops, he revealed.

“In April last year, a decision was made to ban the importation of chemical fertiliser. Accordingly, farmers who have been cultivating in eight hundred thousand hectares of land during the Maha Season, 2021 had to engage in agriculture by using organic fertiliser. As the Ministry, it failed to supply organic fertiliser in time. The farmers could not be informed. So, the farmers’ production met with a decline. We as the government then made it clear that we will not allow farmers to be treated unfairly and would compensate for any decline in production. Accordingly, the Cabinet yesterday concluded to pay a compensation to the farmers for the damage caused to their crops during the Maha Season. So, we have decided to pay Rs. 50,000 per hectare as an incentive for the 1.1 million farmers who cultivated in the last Maha Season from next week for eight hundred thousand hectares,” the Minister noted.

MIAP