JA (Sri Lanka) v Secretary of State for the Home Department

LORD JUSTICE TOMLINSON: This is the second occasion upon which this renewed application for permission to appeal has come before me.

It first came before me on 20 May 2014. On that occasion, I was persuaded by Ms Jegarajah for the Applicant to adjourn consideration of the application for permission to appeal pending the outcome of the hearing of the appeal brought by NT and MP, which had been heard by the Court of Appeal on 17 and 18 March 2014. Ms Jegarajah appeared on that appeal instructed on behalf of the intervener party, Tamils Against Genocide.

I do not propose to repeat what I said in my judgment on 20 May 2014, the neutral citation number of which is [2014] EWCA Civ 862.

However, I pointed out at paragraph 5 that it had been found that the Applicant had been involved in two demonstrations against the Government of Sri Lanka in 2012. He took part in a demonstration on 29 May 2012, described as a full political awakening, and a photograph had been produced showing him among a large crowd of demonstrators in Trafalgar Square.

At paragraph 6, I pointed out that the Applicant had also taken part in a demonstration on 6 June 2012 which was a demonstration to protest against the presence of the President of Sri Lanka, President Rajapaksa, at the Diamond Jubilee celebrations which took place that year. Again, there was a photograph. The Applicant can be seen among a crowd marching from the Mansion House to the Hilton Hotel in Park Lane where the President was staying. But as I there pointed out, the finding was that he did not appear in photographs taken outside the hotel itself, in which security officials from Sri Lanka can apparently be seen taking photographs of the demonstrators before they were chased off by the police.

At paragraph 7, I pointed out that the approach of both the First-tier Tribunal and the Upper Tribunal was broadly to the effect that the Applicant had not demonstrated that he had any deeply felt political beliefs about which he might be questioned or which he might find difficult to suppress upon his return, because the inference was drawn that it was only as a result of deciding to claim asylum, which he did on 9 July 2012, that he had taken part in the demonstrations to which reference was made.

That was the finding made by Upper Tribunal Judge McKee in paragraph 16 of his determination. It was, I think, to an extent an inference which Ms Jegarajah had been minded to challenge, but which she now recognises that she cannot realistically challenge. Accordingly, she accepts that this was an opportunistic claim or, at any rate, that it has been found to be so in a manner which she cannot challenge.

As I pointed out at paragraph 8 of my judgment, the thrust of the submission that Ms Jegarajah made to me was that neither the Upper Tribunal nor the First-tier Tribunal had approached in the proper manner the considerations which arise in the light of the decision of the Supreme Court in HJ (Iran) [2011] 1 AC 596 and also RT (Zimbabwe) [2012] UKSC 38.

Ms Jegarajah submitted that it was incumbent on the judges in the Tribunals to ask themselves: what would be the questions which would be asked of a forced returnee upon his arrival in Sri Lanka? What will be the answers and what will be the consequences of what are assumed to be truthful answers?

As I explained, I adjourned in the light of the circumstance that considerations of that sort had been argued in NT and MP.

Yesterday afternoon, at shortly after 4.30 pm, there was placed before me on behalf of the Appellant a bundle of documents together with a note dated 15 July, which was, I think, yesterday, prepared by Ms Jegarajah which says that the note was provided to the court to clarify what has happened following the adjournment of this application pending the decision of this court in NT and MP.

It was said at paragraph 2 that the case raises an important point of principle of what is the proper application of the HJ (Iran) principle in Sri Lankan asylum cases and it was said in paragraph 4 that the Court of Appeal does not provide guidance in respect of the HJ (Iran) point.

Having looked at the decision of this court in NT and MP, the neutral citation number of which is [2014] EWCA Civ 829, it is apparent to me that the court did indeed provide guidance in relation to the HJ (Iran) point at paragraphs 35 to 38 of the judgment. It is no doubt in the light of that that Ms Jegarajah announced at the outset of the hearing this morning that the HJ (Iran) point is untenable, as indeed it is.

Ms Jegarajah indicated this morning that she wished instead to rely upon the point that appears at paragraph 5(3) of her grounds of appeal, which is to the following effect:

Ms Jegarajah also draws to my attention the decision of this court in YB (Eritrea) v Secretary of State for the Home Department [2008] EWCA Civ 360. There it is pointed out that even if an opportunistic claim for asylum is made, still there is a need to evaluate the risk which arises as the result of an attendance at political protests whilst in this country.

Sedley LJ in the course of giving his judgment pointed out that:

He also pointed out at paragraph 15 that what initially will be for inquiry is whether the authorities in the country of origin are likely to observe and record the Claimant's activity and what will be the consequence.

Ms Jegarajah has drawn to my attention two further photographs, or at any rate one further photograph, and perhaps a better copy of one that I had already seen. She points out that one of these photographs at any rate is available on a Tamil website in which the Applicant can clearly be seen attending the relevant protest, which she says would have been or will be of interest to the Government of Sri Lanka.

These submissions, as it seems to me, completely ignore the thrust of the decision in NT and MP, which is to the effect that now five years rather than three years on from the end of the hostilities, the principal basis upon which the Government of Sri Lanka is concerned with returnees is with those who have engaged in what is sometimes called diaspora activism, where those who have taken part can be regarded as posing a current or future threat to the unitary state.

The whole thrust of the findings of both the First-tier Tribunal and the Upper Tribunal in this case is that this Applicant has no deep-seated beliefs and that his involvement in the activities in which he has taken part is at a low level and is unlikely to be of any interest at all in the sense that it is plain that the Applicant is not a person of the sort who falls within the categories in which the Government of Sri Lanka is now interested so long after the end of the conflict.

Persistently though Ms Jegarajah has pursued her application on this second occasion, I am quite satisfied, for the reasons given by Stanley Burnton LJ when he dealt with the matter on the papers and likewise for the reasons which I gave when I dealt with this in May of last year, that no question of principle arises, nor is there any special reason why this court should entertain a second appeal.

For all those reasons, therefore, this application is dismissed.