Thread by @AlasdairMack66

The Upper Tribunal has given important new country guidance in a case called KK & RS, which should make it easier for Tamil political activists to prove they’re at risk of arrest & torture in Sri Lanka
(Not on the UT website yet but here’s a link)
🧵1/
doughtystreet.co.uk/sites/default/…

Context: since the end of the civil war in 2009 & the crushing of the LTTE (Tamil Tigers), separatist activity has been impossible in Sri Lanka, and as a result the focus of the Tamil separatist movement has shifted to the diaspora, including in the UK 2/
noria-research.com/from-arms-to-p…

In that context, in its 2013 decision in GJ, the Upper Tribunal held there was a risk to ppl with what it termed a ‘significant role’ in diaspora activism - there’s no dispute over the dedication of the SL security forces to torture, sexual abuse & killing of Tamil activists 3/

But GJ left plenty of questions unanswered: eg how ‘significant’ (or ‘committed’, in another phrase used in GJ) must you be in order to come to the attention of the SL police? What range of political activities is relevant to demonstrating your significance or commitment? 4/

The Home Office (& some Tribunal judges) concluded people with a specific role and/or a long record of activism were at risk, & not ‘rank & file’ activists; they also tended to overlook passages in GJ stressing the SL authorities’ very extensive monitoring of diaspora groups 5/

This was exemplified in the latest case: Mr KK and Ms RS are (unrelated) Tamil activists with no particular public prominence in the movement. Both had (on their case) been detained and tortured in Sri Lanka in the past, although these claims were rejected 6/

Both KK & RS are active with Tamil separatist groups in the UK, principally the TGTE (a Tamil govt-in-exile) and/or Tamil Solidarity, but their appeals had been rejected bc they were not "significant" enough for the Sri Lankan authorities to want to persecute them on return 7/

In its new judgment, the Tribunal takes on & corrects some of these misapprehensions, on the basis of extensive evidence, including from expert witnesses Prof Rohan Gunaratna of Nanyang Uni, Singapore, Dr Sutha Nadarajah of SOAS & independent analyst Dr Chris Smith 8/

KK & RS argued that virtually any separatist activity puts people at risk – tho the Tribunal doesn’t go that far, it goes a long way towards accepting it & certainly rejects the HO’s argument that only those with leadership/ organisational roles or a ‘high profile’ are at risk 9/

The Tribunal’s starting point is that ‘GoSL [Government of Sri Lanka] is an authoritarian regime whose core focus is to prevent any potential resurgence of a separatist movement within SL’ – a vital insight as it helps to predict how the GoSL is likely to act in given circs 10/

It pays significant attention to the mindset of President Gotabaya Rajapaksa & other senior politicians & officials, as revealed by their public pronouncements over years, & what these say about their implacable hostility towards Tamils & their cause 11/

It recognises that GoSL ‘draws no material distinction’ between violent separatism as practised by the LTTE, and non-violent political activism, & that it has ‘no tolerance’ for ‘avowedly separatist or perceived separatist beliefs’ 12/

Any Tamil separatist groups are accepted to be regarded with ‘hostility’ by the GoSL, the more so (but not only) if they are proscribed in Sri Lankan law and/or seen as terrorist "fronts" or elements of what's left of the LTTE 13/

The GoSL is accepted, importantly, to have 'an extensive intelligence-gathering regime’, incl infiltrating Tamil groups, photographing demos & monitoring social media; people w/out passports will also be interrogated by SL diplomats abt their activities before being returned 14/

Anyone thus identified as a committed activist (based on a wide range of political activity, but also any past personal or familial links to the LTTE) is found to be at risk of detention & torture on return: not just at the airport but following return to their home area 15/

The Tribunal also accepts that motivation isn’t important, so people can’t be refused asylum (as they often are) because it’s judged that their activism is opportunistic: it’s accepted that the GoSL can only go on people’s actions and not see inside their heads 16/

The Tribunal also stresses the "HJ Iran principle": that people can’t be expected to abandon their political activities so as to avoid persecution, therefore it’s relevant to consider if they’d want to remain active on return to SL, or would be deterred from doing so by fear 17/

Both individual appellants succeeded: KK is a TGTE activist for some 6 years, regularly attending demos etc, some of which cd be seen online, & with some organisational roles; he's held to risk detention if returned, esp (but not only) if he tried to resume his activism in SL 18/

RS & her husband are both TGTE & TS activists, both as volunteers & participants in demos etc, some of whose activities had also been shown online; again it's held she would risk being detained on return whether or not she sought to resume her activism in SL 19/

The judgment is very long (661 paras excl appendices) & closely reasoned. Even the formal country guidance runs to 29 paras. Careful reading is required by anyone working on Tamil cases & obvs this thread is only a summary (& equally obviously isn’t advice on anyone’s case) 20/

But broadly many more Tamil activists will be entitled to asylum than before – those likely to fail cd include ppl who can prove only a small number of activities w/ no prominent role & no real LTTE links PLUS no prospect they’d wish to continue their activities in SL itself 21/

This is also a useful thread on the case, thanks to @GoldsmithIMM_PL

https://twitter.com/GoldsmithIMM_PL/status/1398021535546347538?s=20

Had the great pleasure of working with the outstanding team of my @doughtystimm colleague @A_C_Benfield, @alibandegani of @gardencourtlaw, @AGananathan of Birnberg Peirce & @LauraSmith____ of @JCWI_UK with the help also of @janaEELAM

https://twitter.com/AlasdairMack66/status/1398302214821711873?s=20

Apologies, thread broken, continues with 11/ here

https://twitter.com/AlasdairMack66/status/1398317714947588101?s=20