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FOURTH
SECTION
CASE OF NA. v. THE UNITED KINGDOM
(Application
no. 25904/07)
JUDGMENT
STRASBOURG
17 July 2008
FINAL
06/08/2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of NA. v. the United Kingdom,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Lech Garlicki, President,
Nicolas
Bratza,
Giovanni Bonello,
Ljiljana
Mijović,
Ján Šikuta,
Päivi
Hirvelä,
Ledi Bianku, judges,
and Lawrence
Early, Section
Registrar,
Having
deliberated in private on 24 June 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 25904/07) against the United
Kingdom of Great Britain and Northern Ireland lodged with the Court
under Article 34 of the Convention for the Protection of Human Rights
and Fundamental Freedoms (“the Convention”) by a
Sri-Lankan national, Mr NA. (“the applicant”).
- The
applicant was represented by Ms N. Mole, a lawyer practising in
London with the AIRE Centre. The United Kingdom Government (“the
Government”) were represented by their Agent, Mr D. Walton of
the Foreign and Commonwealth Office.
- The
applicant alleged that if returned to Sri Lanka, he was at real risk
of ill-treatment contrary to Article 3 and/or a violation of Article
2 of the Convention.
- On
21 June 2007, the President of the Chamber to which the case was
allocated acceded to the applicant's request not to have his name
disclosed (Rule 47 § 3 of the Rules of Court).
- On 25 June 2007, the President of the Chamber decided
to apply Rule 39 of the Rules of Court, indicating to the
Government that it was desirable in the interests of the parties and
the proper conduct of the proceedings that the applicant should not
be expelled to Sri Lanka pending the Court's decision. On the same
day, the President decided to give notice of the application to the
Government and granted it priority under Rule 41 of the Rules of
Court. Under the provisions of Article 29 § 3 of the Convention,
the President further decided to examine the merits of the
application at the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. The applicant's domestic proceedings
- The
applicant was born in 1975 in Sri Lanka. He currently lives in
London. He is of Tamil ethnicity.
- The applicant entered the United Kingdom clandestinely
on 17 August 1999 and claimed asylum the next day. He stated
that he feared ill-treatment in Sri Lanka by the Sri Lankan army and
the Liberation Tigers of Tamil Eelam (“the LTTE”). He
explained that he had been arrested and detained by the army on six
occasions between 1990 and 1997 on suspicion of involvement with the
LTTE. Following his last detention he went into hiding until his
family managed to fund his journey to the United Kingdom. He feared
the LTTE on account of their adverse interest in his father who had
done some work for the army. They had also tried to recruit the
applicant on two occasions in 1997 and 1998.
- His claim was refused by the Secretary of State on 30
October 2002. His appeal against that decision was heard and
dismissed by an Adjudicator on 27 July 2003. It was found that the
applicant's account was credible: namely, he had been arrested by the
army on some six occasions between 1990 and 1997 on suspicion of his
involvement with the LTTE. He was detained for less than twenty-four
hours on the first occasion and for two days on the last. There was
no evidence as to how long the other periods of detention had lasted.
On each occasion he was released without charge. During one or
possibly more of these periods of detention he was ill-treated and
his legs had scars from being beaten with batons. According to the
Adjudicator, it may have been that the arrests took place in the
course of round-ups. During the 1997 detention the applicant was
photographed and his fingerprints were taken and his father signed
certain papers in order to secure his release. He went into hiding in
a temple and wanted to leave Sri Lanka at that stage but it took time
for his mother to obtain money from his brother to pay the agent for
his departure.
- However, the Adjudicator found that the applicant's
fear of ill-treatment by the army upon his return was unjustified. It
was noted that, since his departure from Sri Lanka, there had been a
ceasefire between the army and the LTTE for a considerable time,
checkpoints had been dismantled, and the LTTE had been able to open
political offices and roads in the north. It was unlikely that he
would attract any interest on the part of the authorities upon his
return. Even if the record of his arrests was found it would be seen
that he had been held for short periods and released without charge
on each occasion. There was no record that he had ever been involved
with the LTTE or that he had ever been wanted by the authorities.
There was no reason why he should be strip-searched on return and,
even if his scars were found, they would not cause the authorities to
take an interest in him, certainly not to the extent of detaining and
ill-treating him.
- As to his fear of the LTTE, the Adjudicator appeared
to accept that the applicant's brother had done non-combative work
for the LTTE, though he was never a member. He, the brother, had been
arrested by the army but never charged and had left Sri Lanka for
Saudi Arabia in 1997. It was found unlikely that the LTTE would still
have any interest in the applicant and if he was settled in Colombo
it would be unlikely that they could track him down. In any event, he
could apply to the authorities for protection. As to his argument
that he was in need of psychiatric treatment as a result of
post-traumatic stress disorder, it was found that adequate treatment
would be available in Sri Lanka.
- He was issued with removal directions for 1 April 2006
and made further representations attempting to lodge a fresh asylum
application on 29 March 2006. On 3 April 2006 the Secretary of
State refused to consider his further representations as amounting to
a new asylum application. The general situation in Sri Lanka did not
indicate any personal risk of ill-treatment and there was no evidence
that he would be personally affected upon return. The fact that he
had been away from Sri Lanka for the past seven and a half years
suggested that he would hardly be of any interest to the Sri Lankan
authorities.
- His application for permission to apply for judicial
review was refused on 23 May 2006 on the papers by Mr Justice Collins
who stated:
“There is no question but that the situation in
Sri Lanka has deteriorated over the past few months and to such an
extent that there is a real prospect [that the full scale war between
the LTTE and the authorities will recommence. However, that does not
of itself mean that no-one can be returned. The adjudicator accepted
the claimant's account but noted that he had only been detained for
short periods, possibly in general round ups, and had not assisted
the LTTE. All this was over 7 years ago.
In the circumstances, it is not possible to say what has
been happening creates a real risk of relevant ill-treatment for this
claimant. Thus I do not think there is any arguable error of law in
the defendant's decision.”
- The applicant's renewed application was refused by Mr
Justice Burnton at an oral hearing on 18 August 2006.
- The applicant was then issued with removal directions
for 10 January 2007. On 9 January 2007, he made further
representations to the Secretary of State arguing, inter alia,
that removal would be incompatible with his rights guaranteed by the
Convention. When the Secretary of State did not respond, on 10
January 2007 the applicant sought to challenge this failure by
judicial review.
- It appears that the same day, the Secretary of State
did in fact reject these representations as not amounting to a fresh
claim. The Secretary of State relied on the findings of the
Adjudicator and the observations of Mr Justice Collins of 23 May
2006. The Secretary of State also considered a paper submitted by the
applicant which had been issued by the United Nations High
Commissioner for Refugees (UNHCR) on 22 December 2006, entitled “the
UNHCR Position on the International Protection Needs of Asylum
Seekers from Sri Lanka” (“the UNHCR Position Paper”
see paragraphs 65–68 below). He found, however, that the paper
was general in nature and therefore little weight could be attached
to it. Consideration was given to the applicant's claim that the
political and security situation in Sri Lanka had worsened and whilst
it was acknowledged that there had been some problems with the peace
process, the LTTE and the Sri Lankan authorities were committed to
peace and working towards an agreement. Notwithstanding two bomb
attacks in Colombo, there was a “distinct geographical
limitation” to recent incidents and it was open to the
applicant to avoid the northern and eastern areas affected by the
continuing operations of the Sri Lankan armed forces and the LTTE.
The majority of Tamils could live in Colombo and the south without
harassment. Recent security operations in Colombo were also noted but
it was not considered that Tamils in Colombo were at risk of
persecution due to their ethnicity or political opinions. The
majority of people detained had been quickly released following
identity checks. In terms of internal relocation, it was not unduly
harsh to return failed asylum-seekers there. While there had been
increasing levels of disappearances in Sri Lanka, progress had been
made by the creation of an independent body to observe government
investigations. The Secretary of State concluded that the points made
in the applicant's submissions had not been previously considered,
but taken with the materials considered in the original refusal of
the applicant's asylum claim and the determination of his appeal by
the Adjudicator, the new materials would not have created a realistic
prospect of success and the submissions did not therefore amount to a
fresh asylum claim.
- The applicant then made an out of hours application
for an injunction to the High Court. This was granted by Mr Justice
Underhill and the removal directions in place for the same evening
were cancelled. In his subsequent order of 15 January 2007, Mr
Justice Underhill stated:
“I considered the Secretary of State's careful
letter [of 10 January 2007] and am mindful of the fact that [the
applicant] has had a previous application for judicial review
dismissed. But in my view it is sufficiently arguable that the recent
further deterioration in the situation in Sri Lanka may justify a
fresh claim to make it just for removal to be deferred until this
issue can be properly considered. I note in particular para. 34 (a)
of the recent UNHCR report [which contained the UNHCR's
recommendations in respect of Tamils from the north or east –
see paragraphs 65 – 68 below]. I am aware that there are other
pending applications for permission to apply for judicial review
raising the same issue.”
- On 14 February 2007 Mrs Justice Black refused the
applicant's application for permission to seek judicial review of the
Secretary of State's alleged failure to consider and determine the
new representations made on 9 January 2007. She stated:
“In fact [the Secretary of State] did consider the
further representations and, in a letter of 10 January 2007, refused
to treat them as a fresh claim. Strictly speaking that disposes of
the proposed [judicial review] application.
However, it is clear that the claimant seeks in fact to
advance a more fundamental challenge to the removal directions on the
basis that the situation in Sri Lanka has deteriorated since the
matter was last considered and has reached a point where the claimant
would be at risk on return. Reliance is placed on a UNHCR document
dated 22 December 2006 setting out the dangerous situation in Sri
Lanka...Underhill J granted an injunction prohibiting removal on 15
January 2007, apparently referring to the deterioration in the
situation in Sri Lanka and particularly para 34(a) of the UNHCR
report. It is understandable why he took this view.
However, now that some detail of the claimant's
immigration history is available, it does not appear that he had
advanced anything significantly different in the letter of 9 January
2007 from that which was considered when representations were made on
his behalf in March 2006 and in particular during the JR proceedings
that concluded with an oral permission hearing on 18 August 2006.
There is material in the January 2007 letter in addition to the UNHCR
report which is later but there is also material that in fact relates
to the first half of 2006...Whilst I note with anxiety para 34(a) of
the UNHCR report as Mr Justice Underhill did (and the contents of
that report generally), in the light of the reasoning concerning this
particular claimant who has been assessed by the adjudicator as not
of interest to the authorities, the material does not amount to
sufficient in my view to justify granted permission to commence a
judicial review of the decision of 10 January 2007.
The injunction granted by Underhill J will, however, be
continued until either the time for renewal orally has expired
without such an application being made or determination of the oral
permission hearing if there is one.”
- The applicant then sought to renew his application for
permission to apply for judicial review, submitting detailed amended
grounds for his application on 21 February 2007. The oral hearing of
the renewed application was listed for 17 May 2007 but the applicant,
appearing in person at the hearing, withdrew his application.
- In a subsequent letter of 5 November 2007 from the
applicant's solicitors at the time of the judicial review proceedings
to his current representatives before this Court, the former stated
that the reason the judicial review application was withdrawn was
that they, the solicitors, were without instructions from the
applicant. They were informed by counsel that this was a “pre-LP”
case (see paragraphs 30–46 below) and counsel felt that there
were insufficient merits in the case to proceed to the oral hearing.
- The Secretary of State issued the applicant with
removal directions to Sri Lanka for 25 June 2007. On that date the
President of the Chamber decided to apply Rule 39 of the Rules of
Court and indicated to the Government of the United Kingdom that the
applicant should not be expelled until further notice (see paragraph
5 above).
B. Subsequent cases brought by Tamils being returned to
Sri Lanka
- In 2007, the Court received an increasing number of
requests for interim measures from Tamils who were being returned to
Sri Lanka from the United Kingdom and other Contracting States. By
October 2007, the President of the Chamber had applied Rule 39 in
twenty-two cases where Tamils sought to prevent their removal to Sri
Lanka from the United Kingdom. On 23 October 2007, the Section
Registrar wrote to the Government Agent, noting the increasing number
of such Rule 39 applications. Having regard to the security
situation in Sri Lanka, he further noted that Rule 39 had been
applied on each occasion an interim measure had been requested by an
ethnic Tamil. The letter continued:
“The Acting President has consulted the Judges of
the Section about his concerns including as regards the strain which
the processing of numerous Rule 39 applications places on judicial
time and resources. The Court has concluded that, pending the
adoption of a lead judgment in one or more of the applications
already communicated, Rule 39 should continue to be applied in any
case brought by a Tamil seeking to prevent his removal.
The Section has also expressed the hope that, rather
than the Acting President being required to apply Rule 39 in each
individual case, your Government will assist the Court by refraining
for the time being from issuing removal directions in respect of
Tamils who claim that their return to Sri Lanka might expose them to
the risk of treatment in violation of the Convention.”
In
his reply of 31 October 2007, the Agent set out the conclusions of
the Home Office's Operational Guidance Note of 9 March 2007 on Sri
Lanka and the findings of the Asylum and Immigration Tribunal in LP.
He concluded that in light of this information, the Government did
not consider that the current situation in Sri Lanka warranted the
suspension of removals of all Tamils who claimed that their return
would expose them to a risk of ill-treatment. Each case had to be
assessed on its merits against the available evidence. The Government
was accordingly not in a position to assist the Court by refraining
from issuing removal directions in all such cases on a voluntary
basis. Finally, he stated that the Government would continue to make
every effort to comply with any Rule 39 indications made by the Court
in accordance with their obligations under the Convention and their
long-standing practice. However, in the circumstances, the Government
suggested that the difficulties posed by the increasing numbers of
Rule 39 requests by Tamils could best be addressed through the
adoption of a lead judgment by the Court. The Government stood ready
to co-operate with the Court to bring such a case to an early
conclusion.
- The
Court has since applied Rule 39 in respect of three hundred and
forty-two Tamil applicants who claim that their return to Sri
Lanka from the United Kingdom would expose them to ill-treatment in
violation of Article 3 of the Convention.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Immigration and asylum: primary and secondary
legislation
- Sections
1(4) and 3(2) of the Immigration Act 1971 provide for the making of
Immigration Rules by the Secretary of State. Paragraph 353 of the
Immigration Rules (HC 395, as amended by HC 1112) states that:
“When a human rights or asylum claim has been
refused and any appeal relating to that claim is no longer pending,
the decision maker will consider any further submissions and, if
rejected, will then determine whether they amount to a fresh claim.
The submissions will amount to a fresh claim if they are
significantly different from the material that has previously been
considered. The submissions will only be significantly different if
the content:
(i) had not already been considered; and
(ii) taken together with the previously
considered material, created a realistic prospect of success,
notwithstanding its rejection.”
- At
the material time, the Nationality, Immigration and Asylum Act 2002
(Commencement No. 4) (Amendment) (No. 2) Order 2003, when taken with
section 101 of the Nationality, Immigration and Asylum Act 2002 and
Part IV Immigration and Asylum Act 1999, provided for a right of
appeal from an Adjudicator's determination to the Immigration Appeal
Tribunal. An appeal had to be on a point of law and the permission of
the Immigration Appeal Tribunal was required.
- At present, by section 94(2) of the Nationality,
Immigration and Asylum Act 2002, when a person has made either an
asylum claim or a human rights claim, or both, an appeal may not be
brought while the person is in the United Kingdom if the Secretary of
State certifies that the claim or claims are clearly unfounded. Under
section 94(3), if the Secretary of State is satisfied that a claimant
is entitled to reside in any of the States listed in the section
94(4), he shall certify the claim under subsection (2) unless
satisfied that it is not clearly unfounded. Section 94(4) provides
such a list of States and subsection (5) gives the Secretary of State
the power to add a State, or part of a State, to the list in
subsection (4) if satisfied that: there is in general in that State
or part no serious risk of persecution of persons entitled to reside
in that State or part; and removal to that State or part of persons
entitled to reside there will not in general contravene the United
Kingdom's obligations under the Convention. Subsection (6) gives him
the power to remove States from the list.
- Sri
Lanka was added to the list by the Asylum (Designated States) (No. 2)
Order 2003 (Statutory Instrument 2003/1919) which entered into force
on 22 July 2003. It was removed from the list by the Asylum
(Designated States) (Amendment) (No. 2) Order 2006 which entered into
force on 13 December 2006. Paragraph 7.4 of the Explanatory
Memorandum to the order cites the latest available information about
the situation in Sri Lanka and in particular the deterioration in
conditions as one of the factors for the Secretary of State's
decision to remove it from the list.
B. The Human Rights Act 1998
- Section 2 of the Human Rights Act 1998 provides that,
in determining any question that arises in connection with a
Convention right, courts and tribunals must take into account any
case-law from this Court so far as, in the opinion of the court or
tribunal, it is relevant to the proceedings in which that question
has arisen. Section 6(1) provides that it is unlawful for a public
authority to act in a way which is incompatible with a Convention
right.
C. Judicial review
- Judicial review in England and Wales is regulated by
Part 54 of the Civil Procedure Rules. Rule 54.1(2) defines a claim
for judicial review as a claim to review the lawfulness of an
enactment or a decision, action or failure to act in relation to the
exercise of a public function. An application for judicial review has
two stages. The first is an application for permission to apply for
judicial review; the second, if permission is granted, is a
substantive application for judicial review. Where permission is
refused without a hearing, under Rule 54.12(3) and (4) the claimant
may not appeal but may within seven days request the decision to be
reconsidered at a hearing. Rule 52.15 provides that where permission
to apply for judicial review has been refused at a hearing in the
High Court, the person seeking that permission may within seven days
apply to the Court of Appeal for permission to appeal.
D. Country guidance determinations of the Asylum and
Immigration Tribunal and former Immigration Appeal Tribunal
- Appeals
from decisions of the Secretary of State in asylum, immigration and
nationality matters are now heard by the Asylum and Immigration
Tribunal (“the AIT”), which replaces the former system of
Adjudicators and the Immigration Appeal Tribunal. Paragraph 18 of the
Practice Directions governing the operation of the AIT defines
country guidance determinations of the AIT as follows:
“18.2 A reported determination of the
[AIT] or of the IAT [the former Immigration Appeal Tribunal] bearing
the letters “CG” shall be treated as an authoritative
finding on the country guidance issue identified in the
determination, based upon the evidence before the members of the
[AIT] or the IAT that determined the appeal. As a result, unless it
has been expressly superseded or replaced by any later “CG”
determination, or is inconsistent with other authority that is
binding on the [AIT], such a country guidance case is authoritative
in any subsequent appeal, so far as that appeal:
(a) relates to the country guidance issue in
question; and
(b) depends upon the same or similar
evidence.
...
18.4 Because of the principle that like cases
should be treated in like manner, any failure to follow a clear,
apparently applicable country guidance case or to show why it does
not apply to the case in question is likely to be regarded as grounds
for review or appeal on a point of law.”
1. LP (LTTE area –
Tamils – Colombo – risk?) Sri Lanka CG [2007] UKAIT 00076
- In the above country guidance determination
promulgated on 6 August 2007, the AIT considered the case of a
Tamil, LP, from Jaffna in the north of Sri Lanka. He had experienced
problems with the LTTE and the Sri Lankan authorities and fled Sri
Lanka on 29 December 1999 but had been refused asylum in the United
Kingdom by the Secretary of State. Since the case had been identified
as a country guidance determination, the AIT heard evidence from a
number of experts on the situation in Sri Lanka and the treatment of
Tamils there. It also considered the UNCHR Position Paper (see
paragraphs 65–68 below) and considered evidence on the Sri
Lankan authorities' treatment of returned failed asylum seekers at
Colombo airport, including a series of letters from the British High
Commission in Colombo and a report of the Canadian Immigration and
Refugee Board (see paragraphs 60–63 and 74 below). In
dismissing LP's appeal on asylum grounds but allowing it on the basis
of Article 3 of the Convention, the AIT gave the following guidance
in the headnote to its determination:
“(1) Tamils are not per se at risk of
serious harm from the Sri Lankan authorities in Colombo. A number of
factors may increase the risk, including but not limited to: a
previous record as a suspected or actual LTTE member; a previous
criminal record and/or outstanding arrest warrant; bail jumping
and/or escaping from custody; having signed a confession or similar
document; having been asked by the security forces to become an
informer; the presence of scarring; return from London or other
centre of LTTE fundraising; illegal departure from Sri Lanka; lack of
an ID card or other documentation; having made an asylum claim
abroad; having relatives in the LTTE. In every case, those factors
and the weight to be ascribed to them, individually and cumulatively,
must be considered in the light of the facts of each case but they
are not intended to be a check list.
(2) If a person is actively wanted by the
police and/or named on a Watched or Wanted list held at Colombo
airport, they may be at risk of detention at the airport.
(3) Otherwise, the majority of returning
failed asylum seekers are processed relatively quickly and with no
difficulty beyond some possible harassment.
(4) Tamils in Colombo are at increased risk
of being stopped at checkpoints, in a cordon and search operation, or
of being the subject of a raid on a Lodge where they are staying. In
general, the risk again is no more than harassment and should not
cause any lasting difficulty, but Tamils who have recently returned
to Sri Lanka and have not yet renewed their Sri Lankan identity
documents will be subject to more investigation and the factors
listed above may then come into play.
(5) Returning Tamils should be able to
establish the fact of their recent return during the short period
necessary for new identity documents to be procured.
(6) A person who cannot establish that he is
at real risk of persecution in his home area is not a refugee; but
his appeal may succeed under article 3 of the ECHR, or he may be
entitled to humanitarian protection if he can establish he would be
at risk in the part of the country to which he will be returned.
(7) The weight to be given to expert evidence
(individual or country) and country background evidence is dependent
upon the quality of the raw data from which it is drawn and the
quality of the filtering process to which that data has been
subjected. Sources should be given whenever possible.
(8) The determinations about Sri Lanka listed
in para 229 [of the determination – see below] are replaced as
country guidance by this determination. They continue to be reported
cases.”
- In its consideration of the expert evidence before it,
the AIT heard argument on the correct approach to the UNHCR Position
Paper (see paragraphs 65 – 68 below). It stated that:
“203. The UNHCR report was very topical
and up to date. We agree with the general submission made by [counsel
for the Secretary of State] that the protection agenda of the UNHCR
is a wider one than the mere assessment of refugee or subsidiary
protection status. However, these reports are prepared by persons
with direct experience of the core issues involved and thus we accord
them substantive weight in this case.”
- The AIT then considered each of the twelve risk
factors that had been identified by the appellant, LP, and which it
had summarised in its headnote. In respect of Tamil ethnicity, the
AIT recalled that Tamils comprised more than 10 percent of the
population of Colombo, which called for caution when assessing risk
in Sri Lanka, especially Colombo. There was a need for knowledge of
where applicants came from in Sri Lanka and their involvement or lack
of it with Tamil organisations, whether voluntary, involuntary or
otherwise. It found that there were different risk profiles for
sub-groups of those with Tamil ethnicity (Sri Lankan Tamils coming
from the north or east compared with “Indian”,
“Plantation” or “Hill” Tamils). Age and
gender had to be taken into account and young male Tamils in Sri
Lanka, particularly in Colombo, were at a relatively higher level of
risk. There was a higher propensity on the part of the Sri Lanka
authorities to target young men and women from the north and the east
in a period of virtual civil war.
- In respect of a previous record as a suspected or
actual LTTE member or supporter, it was of vital importance to
establish an applicant's profile and the credibility of his
background in some depth. If he or she was not credible as to his
claim to come from the north or east, which left a situation where he
could be a Tamil from Colombo with little or no involvement with the
LTTE, there could be little risk.
- A previous criminal record and/or arrest warrant was,
in the AIT's view, a significant factor that needed to be taken into
account in the assessment of the totality of the risk but did not
mean, of itself, that the applicant had a well-founded fear of
persecution or other significant harm on return to Sri Lanka for that
reason alone. The issue was to establish the credibility of the
criminal record, or an arrest warrant, and decide whether it was
reasonably likely to exist in respect of the applicant.
- Those who had jumped bail or absconded from police
custody, the AIT noted:
“We agree with the logic that those who have been
released after going to court and released from custody on formal
bail are reasonably likely, on the evidence, to be not only recorded
on the police records as bail jumpers but obviously on the court
records as well. Thus we would identify those in the situation such
as this appellant who have been found to have been to court in
Colombo, and subsequently released on formal bail, as having a
profile that could place them at a higher level of risk of being
identified from police computers at the airport. Their treatment
thereafter will of course depend upon the basis that they were
detained in the first place. It is important to note that we did not
have before us any information as to the treatment of bail jumpers
from the ordinary criminal justice system, and there may be many of
them, when they again come to the attention of the authorities, be
they Tamil or Singhalese. We had no evidence that Tamil bail jumpers
are treated differently from Singhalese ones. Clearly punishment for
jumping bail will not make someone a refugee. As we have said, the
risk of detention and maltreatment will depend on the profile of the
individual applicant.”
For
those who had not been brought to court and had possibly been
released from detention after payment of a bribe, much would depend
on the evidence relating to the formality of the detention. If the
detention was informal and there were no records of a bribe, the risk
level would be likely to be below that of a real risk. On this risk
factor, the AIT concluded:
“While we would agree that there may well be
situations where Tamils, with little or no profile related to the
LTTE, or other 'terrorist' groups, could be briefly detained and
harassed, as no doubt happens in round ups in Colombo and elsewhere,
we consider it illogical to assume that an escapee, from Sri Lankan
government detention, or a bail jumper from the Sri Lankan court
system, would be merely 'harassed' given the climate of torture with
impunity that is repeatedly confirmed as existent in the background
material from all sources. We consider, (as we think it does in the
appellant's particular case), that the totality of the evidence may
point to a real risk, in some cases, of persecution or really serious
harm when a recorded escapee or bail jumper is discovered, on return
to Sri Lanka.”
- When an applicant had signed a confession, this could
be a significant risk factor and the AIT noted expert evidence to the
effect that many Tamils were released after signing statements made
in Sinhala that they often did not understand. The factor had to be
considered in the totality of the risk. Equally, when an applicant
had refused requests by the security services to become an informer
against the LTTE, there was a higher risk that they would be assumed
to be a collaborator of the LTTE but such evidence had to be taken
into account with the totality of the evidence and merely
establishing that an applicant had refused to become an informer
would not be in every case the basis for a valid asylum claim on its
own.
- On the risk arising from the presence of scarring on
an applicant, the AIT stated:
“217. The background evidence on the
issue of scarring has fluctuated. Up until the time of the ceasefire
it was generally accepted as something which the Sri Lankan
authorities noted and took into account both at the airport and on
detention and in strip searches of suspected Tamil LTTE supporters.
Their perception that it may indicate training by the LTTE, or
participation in active warfare, was self-evident, and simply was
'good' policing, as appeared to be suggested by the Inspector General
of Police in his discussions with Dr Smith [one of the experts on Sri
Lanka from whom the AIT heard evidence]. On the same logic it was
also valid to conclude that the impact of scarring was of far less
interest during the period 2002 – late 2005 while the ceasefire
agreement was having some effective impact. The evidence that was
provided in this case, including that from Dr Smith following his
discussions with the Inspector General of Police (paragraph 80 of his
report), the BHC [British High Commission] letter of 24 August 2006,
and the COIR [United Kingdom Border and Immigration Agency Country of
Origin Information Report on Sri Lanka] all indicate that scarring
may again be relevant. We agree with the comments in Dr Smith's
report, that the issue of scarring was considered by the police to be
a very serious indicator of whether a Tamil might have been involved
in the LTTE. However, on the evidence now before us we consider that
the scarring issue should be one that only has significance when
there are other factors that would bring an applicant to the
attention of the authorities, either at the airport or subsequently
in Colombo, such as being wanted on an outstanding arrest warrant or
a lack of identity. We therefore agree with the COIR remarks that it
may be a relevant, but not an overriding, factor. Thus, whilst the
presence of scarring may promote interest in a young Tamil under
investigation by the Sri Lankan authorities, we do not consider that,
merely because a young Tamil has scars, he will automatically be
ill-treated in detention.”
- In respect of the risk arising from return from London
or another centre of LTTE activity or fund-raising, the AIT heard
evidence from the Metropolitan Police on LTTE activities and
fund-raising in London. It concluded that this factor was highly
case-specific and any applicant would need to show the extent to
which the Sri Lankan High Commission in the United Kingdom was aware
of his activities and was thus likely to have passed the information
on to Colombo when the applicant was being deported or removed.
- Illegal
departure from Sri Lanka did not of necessity establish a well
founded fear of persecution or serious harm, although in the
“heightened level of insecurity” in Sri Lanka it would
add to the risk profile. Similarly, given the number of “cordon
and search” operations by the Sri Lankan Government, the lack
of a valid identity card could contribute towards an increased level
of risk. In the AIT's view, it had to be coupled with other risk
factors for those of Tamil ethnicity but it was a contributing
factor. An applicant would need to show why he would be at continuing
risk and that he could not reasonably be expected to obtain a new
identity card.
- In respect of the risk factor of having made an asylum
claim abroad, the AIT relied, inter alia, on a letter dated 24
August 2006 from the British High Commission in Colombo (see also
paragraphs 60–63 below) which had stated that lists of failed
asylum seekers could form part of search operations in Colombo (at
paragraphs 65 and 221 of the determination). The AIT found that it
was a reasonable inference that application forms for replacement
passports and travel documents might alert the Sri Lankan High
Commission in London and that information could be passed on.
However, the AIT did not consider having made a failed asylum claim
abroad to be an issue that alone would place a returnee at real risk
on return. It would be a contributing factor that would need other,
perhaps more compelling factors before a real risk could be
established.
- The AIT considered that the fact of having relatives
in the LTTE was a logical factor but needed to be taking into account
with the totality of other evidence and the profile of other family
members. On its own, without established and credible evidence of the
details of the other family members and their known role or
involvement with the LTTE, it would be of limited weight. When
assessing those who have relatives who were members of the LTTE, it
was not only important to consider the relationship, and the
involvement of the relative but whether, and to what extent,
knowledge of the relative's activities were likely to have been known
to the security forces in Sri Lanka. This would vary depending on the
relative's profile and whether or not he or she had been previously
detained. The question of how the authorities would know that an
individual was so related might also be of concern.
- In its conclusion on the risk profile for Tamils, the
AIT stated:
“227. Our assessment of the various
risk factors above has highlighted that each case must be determined
on its own facts. It may be that in some credible cases one of these
individual risk factors on its own will establish a real risk of
persecution or serious harm on return by the Sri Lankan authorities
for Sri Lankan Tamils who are failed asylum seekers from the United
Kingdom. For those with a lower profile, assessed on one or a
combination of the risk factors we have noted however, such as this
appellant, their specific profiles must be assessed in each situation
and set against the above non-exhaustive and non-conclusive, set of
risk factors and the volatile country situation. As can be noted,
several factors, such as being subject to an outstanding arrest
warrant, or a proven bail jumper from a formal bail hearing may
establish a much higher level of propensity to risk than various
other factors. In this situation therefore, the assessment exercise
is a much larger and more detailed one than may have been the
situation up to 2002 and certainly during the period of the cease
fire agreement ('CFA'). The current worsening situation in Sri Lanka
requires serious consideration of all of the above factors, a review
of up to date country of origin information set against the very
carefully assessed profile of the appellant.”
- In addressing the general situation in Sri Lanka at
the time and the possible of relocation of Tamils from the north or
east to Colombo, the AIT stated:
“232. It has been accepted during the
course of this determination that the general security situation in
Sri Lanka has deteriorated following the effective breakdown of the
ceasefire and the increase in terrorist activity by the LTTE. That
has resulted in increased vigilance on the part of the Sri Lankan
authorities and with it a greater scope for human rights abuses and
persecution.
233. When assessing the risk to an individual
it should be borne in mind that much of the background material about
Sri Lanka, and the increase in violent activity, relates to the north
and east. There are particular problems in the east because of the
defection of the Karuna faction from LTTE ranks. This determination
does not suggest that it would in every case be unsafe to expect a
returning Tamil to return to his or her home area in the north or the
east. Rather it looks at the position in Colombo whether that be for
a Tamil who was from Colombo in the first place, or a person who
could relocate there.
234. Tamils make up over 10% of the
population of Colombo. Despite evidence of some forms of
discrimination, the evidence does not show they face serious
hardships merely because they are Tamils. As a result, other
considerations apart and subject to individual assessment of each
applicant's specific case, it cannot be argued that, even if he faces
serious harm in his home area, as a general presumption it is unduly
harsh to expect a Tamil to relocate to Colombo, or that it would be a
breach of Article 3 to expect him or her to do so, or that doing so
would put him or her at real risk of serious harm entitling them to
humanitarian protection.”
- Having reiterated that the list of factors was “not
a checklist nor is it intended to be exhaustive” and that the
factors should be considered individually and cumulatively (at
paragraph 238 of the determination), the Tribunal again summarised
the factors it had considered. It had heard evidence on procedures at
Colombo airport, including the series of letters from the British
High Commission in Colombo (see paragraphs 60–63 below), and
the counsel for the Secretary of State had acknowledged there was no
dispute that records were kept at the airport and that interviews
were conducted there (at paragraph 159 of the determination). In its
summary of its conclusions, the AIT therefore added:
“239. When examining the risk factors
it is of course necessary to also consider the likelihood of an
appellant being either apprehended at the airport or subsequently
within Colombo. We have referred earlier to the Wanted and Watched
lists held at the airport and concluded that those who are actively
wanted by the police or who are on a watch list for a significant
offence may be at risk of being detained at the airport. Otherwise
the strong preponderance of the evidence is that the majority of
returning failed asylum seekers are processed relatively quickly and
with no difficulty beyond some possible harassment.”
- On
the facts of LP's case, the AIT noted that his credibility had been
accepted, in particular that he was a “bail-jumper” from
court-directed bail in Colombo and that on return to Colombo airport
he would have been at real risk of being investigated. That
investigation by the Sri Lankan authorities would lead, in LP's
particular circumstances, to the real risk of his being seriously
maltreated while in detention and thus the AIT allowed his appeal on
Article 3 grounds.
- In its previous determination in PT (Risk –bribery
– release) Sri Lanka CG [2002] UKIAT 03444, the AIT had
held first that paying a bribe did not itself amount to an assisted
escape from custody which would make the applicant of interest to the
authorities. Second, it had held that scarring was a factor that
should not be assessed in isolation but in light of the general
security situation and the processing of returnees at Colombo
airport. The AIT in LP confirmed both these rulings.
2. PS (LTTE –
Internal Flight – Sufficiency of Protection) Sri Lanka CG
[2004] UKIAT 0297
- In PS the Immigration Appeal Tribunal, allowed
an appeal by the Secretary of State against the decision of the
Adjudicator who had found that the respondent, a Sri Lankan Tamil
from western Sri Lanka, would be at risk from the LTTE if returned
and that there would not be sufficient protection by the Sri Lankan
authorities. He and his cousin had been coerced by the LTTE into
transporting goods by sea for them and arrested and interrogated
under torture by the Sri Lankan navy. He had told them where the
goods were and was released after payment of a bribe. The LTTE sought
the applicant and his cousin and killed his cousin. The respondent
was again arrested on suspicion of LTTE involvement and again
released after paying a bribe, at which point he fled to the United
Kingdom. It was accepted on appeal that given the ceasefire in place
at the material time, there was no risk to the respondent from the
Sri Lankan authorities. As to the risk to him from the LTTE and the
sufficiency of protection offered by the Sri Lankan authorities, IAT
found that he could safely and reasonably relocate from his home area
of Puttalam, western Sri Lanka to Colombo. The IAT stated:
“71. As we have already observed, those
whom the LTTE has on the objective evidence targeted in Colombo since
the ceasefire have all been high profile opposition activists, or
those whom they would see are renegades or traitors to the LTTE.
Whether it could be successfully argued that even those of so high a
profile would not be provided with a sufficiency of protection in
Colombo in the Horvath sense [Horvath v. the Secretary of State
for the Home Department – see paragraph 49 below], may be
doubted, but what seems to us quite clear on the background evidence
is that there is no arguable basis for saying that the Sri Lankan
state does not provide a sufficiency of protection to the generality
of Tamils having a localised fear of the LTTE in their home area who
do not reach a similar high profile.
...
73. We cannot, of course, say that the safety
of the respondent is guaranteed if he is now returned to Sri Lanka,
but there is simply no objective evidence to support a claim that
ethnic Tamils with his characteristics are in fact currently at risk
from the LTTE in Colombo, or that, if they are, it is a risk in
respect of which the Sri Lankan state does not provide a sufficiency
of protection applying the ratio in Horvath.”
3. NM and others
(Lone women – Ashraf) Somalia CG [2005] UKAIT 00076
- In this country guidance determination, the AIT
considered, inter alia, the correct approach to reports by the
UNHCR. It observed:
“108. The extensive reliance upon UNHCR
material makes a few observations germane. The value of the UNHCR
material is first that where it has observers on the ground, it is in
a good position to provide first hand information as to what in fact
is happening. The process then whereby its observations of what is
happening become position papers or recommendations is likely to
increase the objectivity and soundness of its observations in that
respect. It has a special role in relation to the Geneva Convention.
...
109. But their comments have their
limitations and these need equally to be understood. The UNHCR often
speaks of inhibitions on the return, usually forced, of failed asylum
seekers, who have been rejected after a proper consideration of their
claims. It follows that the UNHCR is not then commenting on the
return of refugees at all; it is acknowledging that they would not
face persecution for a Convention reason and it is going beyond its
special remit under the Geneva Convention. This is not a question of
picking up on loose language. The UNHCR is perfectly capable of using
language which shows that it is or is not dealing with the risk of
persecution for a Convention reason, and sometimes does so. These are
considered papers after all.
...
112. But the assessment of whether someone
can be returned in those circumstances is one which has to be treated
with real care, if it is sought to apply it to non Refugee Convention
international obligations, especially ECHR. The measure which the
UNHCR uses is unclear; indeed, realistically, it may be using no
particular measure. Instead, it is using its own language to convey
its own sense of the severity of the problem, the degree of risk
faced and the quality of the evidence which it has to underpin its
assessment. It is often guarded and cautious rather than assertive
because of the frailties of its knowledge and the variability of the
circumstances.
113. This is not to advocate an unduly
nuanced reading of its material, let alone an unduly legalistic
reading. It is to require that the material be read for what it
actually conveys about the level of risk, of what treatment and of
what severity and with what certainty as to the available evidence.
But there may be times when a lack of information or evidence permits
or requires inferences to be drawn as to its significance, which is
for the decision-maker to draw. There is often other relevant
material as well.
114. UNHCR's language is not framed by
reference to the ECHR and to the high threshold of Article 3 as
elaborated in the jurisprudence of the Strasbourg Court and of the
United Kingdom. That is not a criticism – it is not an expert
legal adviser to the United Kingdom courts and couches its papers in
its own language. So its more general humanitarian assessments of
international protection needs should be read with care, so as to
avoid giving them an authority in relation to the United Kingdom's
obligations under the ECHR which they do not claim. They may give
part of the picture, but the language and threshold of their
assessments show that the UNHCR quite often adopts a standard which
is not that of the United Kingdom's ECHR obligations.
115. UNHCR papers are often not the only ones
which Adjudicators or the Tribunal has to consider. Other
organisations may have first-hand sources and differ from UNHCR;
experts may bring a further perspective. A considered UNHCR paper is
therefore entitled to weight but may well not be decisive.”
E. Horvath v. the Secretary of State for the Home
Department [2001] AC 489
- In this case, the House of Lords considered the asylum
claim of a Roma citizen of Slovakia on the ground, among others, that
he feared persecution in Slovakia by “skinheads”, against
whom the Slovak police failed to provide adequate protection for
Roma. In dismissing the applicant's appeal, the House of Lords held
that in determining whether there was sufficient protection against
persecution in the person's country of origin it was sufficient that
there was in that country a system of criminal law which made violent
attacks by the persecutors punishable and a reasonable willingness to
enforce that law on the part of the law enforcement agencies.
F. R. v. the Secretary of State for the Home
Department, Ex parte five Sri Lankan Tamils [2007] EWHC 3288
(Admin)
- Applications for permission to apply for judicial
review were lodged by five Sri Lankan Tamils who sought to challenge
the Secretary of State's decision either to reject representations
made by them as not amounting to a fresh asylum claim or, in one
case, to certify that his claim was clearly unfounded (see paragraph
25 above). The applications were considered in the High Court by Mr
Justice Collins on 12 November 2007 in the light of the exchange of
letters between the Section Registrar and Agent of the Government set
out at paragraph 21 above. He adjourned one application, granted
permission in two cases and refused permission in the remaining two.
Before considering the merits of the individual cases before him,
Mr Justice Collins considered the risk factors set out by the
AIT in LP. He stated:
“10. Although those have been described as risk
factors, they obviously vary in their significance. For example,
Tamil ethnicity is obviously a highly relevant consideration, since
the LTTE is a Tamil organisation and the battle is by the LTTE on
behalf of the Tamils who seek specific objectives as Tamils. However,
Tamil ethnicity by itself does not create a real risk of
ill-treatment. Accordingly, some of these so-called risk factors are
in reality, as it seems to me, background (as it has been described)
factors; that is to say they do not in themselves indicate a real
risk, but they are matters which, if there is a factor which does
give rise to a real risk that the individual will be suspected of
involvement in the LTTE, adds to the significance of that. Thus Tamil
ethnicity, return from London, illegal departure from Sri Lanka, lack
of ID card or other documentation (unless it is such a lack beyond
the period that the individual would be expected to take to obtain an
ID card after return) and having made an asylum claim abroad, all are
no doubt factors which may be held against an individual, but none of
them, as far as I can see in themselves, or even cumulatively, would
create a real risk. However, it is obvious that a previous record as
a suspected or actual member or supporter, provided that it was at a
level which would mean that the authorities would retain an interest
would be likely to create a risk. I say that because it was made
clear in LP itself that an individual who had a past low-level
involvement which might have led to some detention, would not
necessarily be regarded as a real risk so far as ill-treatment was
concerned, although clearly the circumstances of the previous record
might point in a different direction. A previous criminal record and
an outstanding arrest warrant clearly are highly material and clearly
capable, I would have thought, of producing a real risk.
11. Bail jumping and/or escaping from
custody, again on the face of it are highly material. But it depends,
as the Tribunal [the AIT] itself indicated, on what is covered by
escaping from custody. Frequently custody was brought to an end by
the payment of a bribe. That is commonplace (or was commonplace,
perhaps still is) in the Sri Lankan situation. Generally release on
the payment of a bribe without more would not indicate that there was
an ongoing risk because the release would be likely to be recorded as
a release because there was nothing further to be held against the
individual. It is hardly likely that whoever took the bribe would
stick his neck out by effectively admitting that there should not
have been a release but for the bribe, although it might of course be
different if there had been a release on formal bail. Police have the
power to grant bail, but it can be done, it was said, either formally
or informally. Frequently perhaps what is talked of as release on
bail is no more than release by the police officer in question with
some conditions apparently attached. Again one would have to look at
the individual circumstances to see whether the nature of the release
was such as to lead to a risk that he would still be regarded as
someone under suspicion.
12. A signed confession or similar document
obviously would be an important consideration.
13. Having been asked by the security forces
to become an informer can be of some importance. It might indicate
that the individual was regarded as someone who was indeed involved
in the LTTE but was prepared, to save his own skin or for whatever
reason, to provide information to the authorities. What would happen
on occasions – and indeed one of the cases, as I shall
indicate, contained this element – was that the release was on
the basis that he would be an informant but in fact he did not carry
out his side of the bargain, if that is the right way of putting it.
The suggestion is that that failure would mean that he was likely to
be recorded as someone who would arouse suspicion.
14. The Tribunal indicated that the presence
of scarring in itself would not necessarily produce a real risk, but
is something that would be added to and confirmatory of another
factor which did give rise to a risk. It was generally speaking to be
regarded as a confirmatory rather than a free-standing risk element.
15. Finally having relatives in the LTTE is
something that one can well understand might produce suspicion.
16. The test therefore, as I see it, is
whether there are factors in an individual case, one or more, which
might indicate that authorities would regard the individual as
someone who may well have been involved with the LTTE in a
sufficiently significant fashion to warrant his detention or
interrogation. If interrogation and detention are likely, then, in
the context of the approach of the authorities in Sri Lanka, torture
would be a real risk and thus a breach of Article 3 might occur. It
is plain from LP and it is clear overall that a blanket ban on
return to Sri Lanka simply because an individual is a Tamil cannot be
supported. If the European Court is approaching it in that way, then
in my view it should not be and it is not in accordance with what is
required by the Convention.
17. The authorities in this country, the
courts and the Tribunal, give very careful consideration to whether
it is indeed appropriate to accept that a return of a Tamil to Sri
Lanka can be made because there is no real risk that he will suffer
any form of relevant ill-treatment. This country has not accepted the
blanket approach which is advocated to an extent by the UNHCR, albeit
there is no question but that its factual conclusions on matters
where investigations have been carried out should be given weight.”
III. RELEVANT EUROPEAN UNION LAW
- Council Directive 2004/83/EC of 29 April 2004 (on
minimum standards for the qualification and status of third country
nationals or stateless persons as refugees or as persons who
otherwise need international protection and the content of the
protection granted) has the objective, inter alia, of ensuring
EU Member States apply common criteria for the identification of
persons genuinely in need of international protection (recital six of
the preamble). In addition to regulating refugee status, it makes
provision for granting subsidiary protection status. Article 2(e)
defines a person eligible for subsidiary protection status as someone
who would face a real risk of suffering serious harm if returned to
his or her country of origin. Serious harm is defined in Article 15
as consisting of: (a) death penalty or execution; (b) torture or
inhuman or degrading treatment or punishment of an applicant in the
country of origin; or (c) serious and individual threat to a
civilian's life or person by reason of indiscriminate violence in
situations of international or internal armed conflict.
- On
17 October 2007, the Dutch Administrative
Jurisdiction Division of the Council of State (Afdeling
Bestuursrechtspraak van de Raad van State),
when considering the case of M. and N. Elgafaji v.
Staatssecretaris van Justitie (the Deputy
Minister of Justice), lodged a reference for a preliminary
ruling with the Court of Justice of the European Communities asking,
inter alia, whether Article 15(c) of the Directive offered
supplementary or other protection to Article 3 of the Convention.
IV. RELEVANT INFORMATION ABOUT SRI LANKA
- Sri Lanka secured independence from the United Kingdom
in 1948. Demographical information varies but its population is
approximately 19.9 million. The majority are Sinhalese (73.8–82
per cent). Significant minorities include Sri Lankan Moors (Muslims,
7.2–7.9 per cent); Indian Tamils (4.6–5.1 per cent); and
Sri Lankan Tamils (3.9–4.3 per cent). The majority of Tamils
live in the north and east of the country but a significant minority
live outside those regions. Colombo has a population of approximately
2.25 million and approximately 248,000 Sri Lankan Tamils and 25,000
Indian Tamils live there (see United Kingdom Border and Immigration
Agency Country of Origin Information Report on Sri Lanka, 3 March
2008 (“the March 2008 COI Report”), at paragraphs 1.03,
3.01, 20.11, and 20.14 with further references).
- The internal conflict in Sri Lanka began over twenty
years ago and has continued intermittently ever since. The conflict
is largely between the LTTE, who seek independence for Tamils, and
Government forces. A ceasefire was signed between the Government and
the LTTE in February 2002 and a peace process started. In 2004, after
divisions appeared with the LTTE, the ceasefire came under increasing
pressure. The most serious threat to the peace process was the
assassination in August 2005 of Lakshman Kadirgamar, the Sri Lankan
Minister of Foreign Affairs, after which violence in the country
escalated and there were renewed clashes between Government forces
and the LTTE (see the March 2008 COI Report at paragraphs 3.13–3.42
with further references).
- Mr Kadirgamar's assassination prompted the Sri Lankan
Government to declare a state of emergency and introduce Emergency
Regulations which gave the Government, the armed forces and law
enforcement agencies broad counter-terrorism powers, including
special powers of arrest and detention up to one year (see the March
2008 COI report at paragraphs 8.15–8.23 and 12.01–12.12
with further references). The regulations are reinforced by further
such powers provided for in the Prevention of Terrorism Act, which
was reinstated in December 2006 (see, inter alia, BBC News
website story of 6 December 2006 and the 2006 United States of
America Department of State Country Report on Human Rights Practices,
quoted at paragraphs 3.26 and 8.15 of the COI Report respectively).
Young Tamil men who are suspected of being LTTE members or supporters
appear to be the primary target of arrests (see, inter alia,
paragraph 3.7.18 of the United Kingdom Border and Immigration Agency
Operational Guidance Note on Sri Lanka, set out at paragraph 58
below). The Emergency Regulations have been regularly extended, most
recently on 6 February 2008 (see the same report at p. 10).
- On
3 January 2008, the Government gave notice of their intention to
withdraw from the ceasefire agreement. The withdrawal took effect on
16 January 2008 (the March 2008 COI Report at paragraphs 4.08 et
seq.).
A. United Kingdom Government reports
1. Operational Guidance Notes
- Operational guidance notes (OGN) are prepared by the
Border and Immigration Agency of the Home Office. They provide a
brief summary of the general, political and human rights situation in
the country and describe common types of claim. They aim to provide
clear guidance on whether the main types of claim are likely to
justify the grant of asylum, humanitarian protection or discretionary
leave.
- The OGN on Sri Lanka of 5 November 2007 (which updated
and replaced the previous note of 9 March 2007, the conclusions of
which were virtually identical) contained the following conclusions
on the main kinds of asylum, human rights and humanitarian protection
claims made by those entitled to reside in Sri Lanka:
“[At. 3.6.19 on claims made by those fearing
reprisals from the LTTE] We do not accept UNHCR's position that there
is no internal flight alternative for individuals fleeing targeted
violence and human rights abuses by the LTTE due to difficulties in
travel because of the reinstatement of checkpoints and because of the
inability of the authorities to provide 'assured protection' given
the reach of the LTTE. UNHCR's reliance on the concept of 'assured
protection' is not a fundamental requirement of the Refugee
Convention. In referring to 'assured protection', UNHCR are using a
higher standard than the sufficiency of protection standard required
by the Refugee Convention...Moreover, asylum and human rights claims
are not decided on the basis of a general approach, they are based on
the circumstances of the particular individual and the specific risk
to that individual. It is important that case owners give individual
consideration to whether the applicant has a well-founded fear of
persecution for a convention reason or are otherwise vulnerable that
they may engage our obligations under the ECHR. Applicants who fear
persecution at the hands of the LTTE in LTTE dominated areas are able
to relocate to Colombo, or other Government controlled areas and it
would not normally be found to be unduly harsh for claimants to
relocate in this way. Similarly, the Government is willing to offer
to protection to [sic] those who have relocated from LTTE controlled
areas and who still fear reprisals from the LTTE.
...
[At 3.7.18 on claims made by those fearing persecution
by the Sri Lankan authorities] Following the announcement of the
cease-fire in February 2002, the Sri Lankan authorities de-proscribed
the LTTE and suspended arrests made under the Prevention of Terrorism
Act (PTA). The emergency regulations imposed in August 2005 which
continue to be in place allow for the arrest of individuals by
members of the armed forces and those detained may be held for up to
one year. Young Tamil men who are suspected of being LTTE members or
supporters appear to be the primary target of arrests.
However, most are reportedly released quickly and it can
therefore still be said that generally the authorities in Sri Lanka
are not concerned with those individuals with past low-level support
for the LTTE. Claims under this category are therefore likely to be
clearly unfounded and fall to be certified as such.
3.7.19 Those individuals who may be of
continuing interest to the authorities would be those wanted for
serious offences. These cases will be exceptional, and will normally
be high-profile members of the LTTE who are still active and
influential, and wanted by the authorities. Such individuals may face
prosecution on return, although there is no evidence to suggest that
they would not be treated fairly and properly under Sri Lankan law.
Claims made under this category are therefore not likely to lead to a
grant of asylum or Humanitarian Protection but taking into account
the continuing interest of the authorities in those of high profile,
and the introduction of the emergency regulations such claims cannot
be considered to be clearly unfounded.
...
3.7.20 There cannot be said to be a general sufficiency
of protection available to those applicants who express fear of state
officials after having made complaints to the Sri Lankan authorities
with regard to, for example, the use of torture. However, internal
relocation to LTTE areas may be an option where, in the particular
circumstances of the applicant's case, it is not considered unduly
harsh for the victim to exercise this. The grant of asylum or
Humanitarian Protection is unlikely therefore to be appropriate where
there is an option of internal relocation. Such claims should only be
certified as clearly unfounded if internal relocation is clearly an
option.”
- The OGN also found that with the introduction of the
Emergency Regulations in August 2005, round ups and arrests of Tamils
in “cordon and search operations” had taken place. Citing
a report of the International Committee of the Red Cross (ICRC), it
stated that most of those detained, generally young Tamil males, were
taken into custody because they were unable to produce identification
or explain the reason for being in a particular area. It also quoted
the website “TamilNet” which had reported a number of
large scale arrests between May and July 2007 of Tamil civilians in
Wellawatte and Colombo city who were taken into custody on account of
failure to prove identity or provide reasons for their stay in the
location. Finally, the OGN stated that according to a letter dated 11
September 2007 from the British High Commission in Colombo, the
operations did appear to target those in casual employment or with
temporary accommodation, but whilst a proportion of those detained
did end up in longer term detention, most were released quickly (at a
paragraph 3.6.11 of the OGN).
2. Letters from the British High Commission in Colombo
- The March 2008 COI Report (at paragraphs 32.09 –
32.22), set out a number of extracts from a series of letters from
the British High Commission in Colombo, which addressed the treatment
of failed asylum seekers. At paragraph 32.09, the COI Report included
an excerpt from a High Commission letter of 25 January 2008, which
noted:
“The BHC Risk Assessment Officer has recently
visited the headquarters of CID [Criminal Investigations Department]
in Colombo, and the ALO [Airline Liaison Officer] works closely with
CID at Bandaranaike Airport. Both RAO and ALO recall that they have
never seen any CID officers use a computer, and comment that neither
their HQ nor airport offices has computers installed. The ALO added
that CID officers at the airport record details in a notebook, whilst
the RAO stated that officers in Colombo had typewriters on their
desks.”
The
same paragraph of the COI Report noted that in a letter of 24 August
2006, the High Commission had previously reported:
“The Sri Lankan authorities have a good IT system
to track arrivals and departures at the main airport and are able to
track, in most cases, whether an individual is in the country or
not.”
- According
to the COI Report (at paragraphs 32.12 and 32.13), in a letter dated
26 September 2005 the High Commission stated:
“We have spoken to the International Organisation
of Migration locally about returns. They say that to their knowledge
most returns are detained briefly and then released to their
families. Our Airline Liaison Officer has contacted the Canadian,
Australian and German Missions here, to ask about their experiences
with returns. All of their experiences are similar. In August [2005]
a charter plane returned approximately 40 failed asylum seekers from
Germany. The Sri Lankan Police (CID) have told us that these were
processed by them 'in a few hours'. In general, the Sri Lankan
Immigration Services and CID are informed in advance of the
passenger's arrival. The passenger is handed over to Immigration who
briefly interview them and then hand them to CID. In most cases a
record is kept by both of the returnees arrival and they are then
allowed to proceed. Usually family are at the airport to meet them.
In a few cases CID have detained people where there was an existing
warrant for their arrest when they left Sri Lanka. DII (Directorate
of Internal Intelligence) may also have an interest in these
individuals and keep records on them. There is no reason to think
that they have any information regarding asylum claims in the UK or
elsewhere. There does not appear to be any involvement in the process
by the Sri Lankan Army.
...
The role of scarring is extremely difficult to assess, I
have not found any detailed reports, but anecdotal evidence is that
it can play a part in rousing suspicion. The key issue is not what
triggers suspicion, but how suspects are treated. Membership of the
LTTE and fundraising for the organisation are no longer criminal
offences in Sri Lanka (although they are in the UK) so even if the
authorities acted on their suspicion Sri Lankan law gives them
limited powers to act. Unarmed members of the LTTE are permitted to
operate in government areas under the 2002 ceasefire agreement.”
- Paragraphs
32.14 and 32.15 of the COI report then quote the High Commission as
stating in its letter of 24 August 2006 that:
“There is strong anecdotal evidence that scarring
has been used in the past to identify suspects. In my own
conversations with the police and in the media the authorities have
openly referred to physical examinations being used to identify
whether suspects have undergone military style training. A UK based
member of staff who was present during the processing of two recent
returns at Colombo airport on 04/08 and 23/08 [2006] reported however
that no such examinations took place, and that the returnees, both
ethnic Tamils from the north of Sri Lanka, were able to make onward
journeys with little delay. His observations support more recent
claims from contacts in government ministries that this practice has
either ceased or is used less frequently. At the very least it
appears to only take place when there is another reason to suspect
the individual rather than a routine measure for immigration
returnees.
...
Our own experience of the return of failed asylum
seekers and the shared information of other missions, particularly
the Canadians, and the International Organisation of Migration is
quite clear. As we have reported earlier [26 September 2005] the vast
majority are questioned for a short period of time to establish
identity and possibly on security issues and then released. Normally
only when there is an outstanding arrest warrant are individuals
detained for longer periods.”
- Finally, at paragraphs 32.20–32.22 the COI
Report contained excerpts from the letter of 25 January 2008 which
read as follows:
“The Government of Sri Lanka's decision to
abrogate the ceasefire agreement will reduce further the provision
[of] information regarding the treatment of returnees. Ceasefire
monitors from Norway and the Sri Lankan Monitoring Mission (SLMM)
will have no further role and will be unable to provide any
information regarding returnees.
...
The International Organisation for Migration (IOM) have
advised the High Commission that whilst they monitor the persons who
return from the UK under the Voluntary Assisted Return Programme
(VARP) for up to 2 years, they do not monitor those who are forcibly
returned. I was advised that even amongst the VARP returnees there
were 2 cases in the last year where individuals have been arrested
and detained. The first was a young Tamil male from Jaffna who was
going through a reintegration programme in Colombo. Some 6 months
after his return, he was stopped at a police checkpoint and detained,
as he could provide no evidence of family in the capital. He was held
at Boossa prison for one month before release, but is now back in the
reintegration programme. The 2nd case also involved a Tamil male who
was in the reintegration programme in Colombo. The circumstances of
his arrest were somewhat different in that he had travelled to India
on forged documentation and was apprehended by CID on his return to
Colombo and detained. It could therefore be argued that there might
have indeed been justification for this.
...
IOM have also become involved with returnees who have
forcibly been removed from the UK, providing post-arrival assistance.
Ostensibly, this is to provide travel assistance to a chosen address.
At time of writing IOM had been notified of 32 potential removals
under this arrangement, of which they received only 8 returnees.
Whilst a majority of the ones that did not arrive undoubtedly earned
last minute reprieves in the UK by one means or another, IOM could
not be 100% certain that some were not detained on arrival at Colombo
Airport. IOM are under instructions not to approach these returnees
until they have gone through all of the arrival procedures. FCO
Migration Directorate has recently installed a Migration Delivery
Officer at the High Commission in Colombo. His role will include
liaison between the UK Border & Immigration Agency, the Sri
Lankan Department of Immigration & Emigration and IOM, and will
assist in the monitoring of such persons following their removal from
the UK.”
- According
to information provided to the Court by the Government, of above
thirty-two returns, twenty-two were cancelled for a number of reasons
such as judicial review proceedings being lodged, injunctions being
granted by the High Court and this Court making indications under
Rule 39 of the Rules of Court. Eight of the returnees were
successfully met outside the airport by IOM. In the remaining two
cases, removals were made but the individuals concerned did not make
themselves known to the IOM officer on arrival in Colombo. The
Government had established that one of the two was in the Netherlands
and they continued to make enquiries into the whereabouts of the
other individual concerned.
B. United Nations reports
1. UNHCR Position on the International Protection Needs
of Asylum Seekers from Sri Lanka (“the UNHCR Position Paper”)
- On 22 December 2006, the United Nations High
Commissioner for Refugees published the above paper, observing that
there had been several major developments in the country which
fundamentally affected the international protection needs of
individuals from Sri Lanka who sought, or who had sought, asylum
abroad. After surveying the escalation in fighting between Government
forces and the LTTE and its impact on the civilian population, the
paper turned to the human rights situation. Tamils from the north and
east were at risk of targeted violations of their human rights from
all parties to the armed conflict, including harassment,
intimidation, arrest, detention, torture, abduction and killing at
the hands of government forces, the LTTE and paramilitary or armed
groups. Where an individual sought to escape from the LTTE, even if
they reached government-controlled areas, this did not necessarily
mean that he or she would be able to secure the protection of the
authorities given the LTTE's capacity to track down and target its
opponents throughout the country. The position paper also considered
the human rights situation for Tamils in Colombo and stated:
“23. Tamils in Colombo and its
outskirts, where there are large Tamil communities, are at heightened
risk of security checks, arbitrary personal and house to house
searches, harassment, restrictions on freedom of movement, and other
forms of abuse since the imposition of new security regulations in
April and December 2006.
24. Under emergency regulations, the police
are empowered to register all persons within the jurisdiction of each
police station. These regulations, which were enacted during the
height of the conflict in the 1990s, remain in place and require all
residents to register with their local police station. Such
registration, which is taking place in Colombo, enables the police to
have accurate information on the ethnicity and location of all
inhabitants of Colombo.
25. Tamils in Colombo are especially
vulnerable to abductions, disappearances and killings. Such actions
are allegedly conducted by the paramilitary 'white vans' suspected to
be associated with the security forces, as well as by the Karuna
faction and the LTTE. According to press reports, some 25 Tamils were
abducted in Colombo and its suburbs between 20 August and 2 September
2006, with only two of these people confirmed released. The
whereabouts and fate of the rest remain unknown. Young Tamil
professionals including several women, businessmen, as well as Tamil
political figures and activists with a pro-Tamil stance can be
specifically targeted (footnotes omitted).”
- The
paper also noted that Muslims from the east were also particularly
vulnerable to human rights abuses from the parties to the conflict
and that Sinhalese from the north and east were vulnerable to the
generalised violence there. For the latter, there was protection from
generalised violence in government-controlled areas but no protection
from the LTTE, if they were targeted by it.
- UNHCR
recommended that all asylum claims of Tamils from the north or east
should be favourably considered. Where individual acts of harassment
did not in and of themselves constitute persecution, taken together
they could cumulatively amount to a serious violation of human rights
and therefore be persecutory. Where an individual did not fulfil the
refugee criteria under the United Nations Convention Relating to the
Status of Refugees of 1951, a complementary form of protection was to
be granted. Tamils from Colombo were to be recognised as refugees if
subjected to targeted violations of human rights by the LTTE, the
authorities or paramilitary groups. Again, where individual acts of
harassment did not in and of themselves constitute persecution, taken
together they could cumulatively amount to a serious violation of
human rights and therefore be persecutory. A similar recommendation
was made for Muslims. For Sinhalese, those who were targets of
persecution from the LTTE or other non-state agents should be
accorded recognition as refugees.
- For those asylum seekers from Sri Lanka whose claims
had previously been examined and had been found not to be in need of
international protection, the Position Paper recommended a review of
their claims in light of the new circumstances it had described.
2. The United Nations High Commissioner for Human
Rights
- After her visit to Sri Lanka in October 2007, the
United Nations High Commissioner for Human Rights, Louise Arbour,
issued a press statement on 13 October 2007 in which she noted:
“Sri Lanka has many of the elements needed for a
strong national protection system. It has ratified most of the
international human rights treaties. It has justiciable human rights
guarantees in the Constitution. It has longstanding democratic and
legal traditions. It has had a national human rights commission for
more than a decade. Sri Lanka has an active media and benefits from a
committed civil society.
However, in the context of the armed conflict and of the
emergency measures taken against terrorism, the weakness of the rule
of law and prevalence of impunity is alarming. There is a large
number of reported killings, abductions and disappearances which
remain unresolved. This is particularly worrying in a country that
has had a long, traumatic experience of unresolved disappearances and
no shortage of recommendations from past Commissions of Inquiry on
how to safeguard against such violations. While the Government
pointed to several initiatives it has taken to address these issues,
there has yet to be an adequate and credible public accounting for
the vast majority of these incidents. In the absence of more vigorous
investigations, prosecutions and convictions, it is hard to see how
this will come to an end.
...
Throughout my discussions, government representatives
have insisted that national mechanisms are adequate for the
protection of human rights, but require capacity building and further
support from the international community. In contrast, people from
across a broad political spectrum and from various communities have
expressed to me a lack of confidence and trust in the ability of
existing relevant institutions to adequately safeguard against the
most serious human rights abuses.
In my view the current human rights protection gap in
Sri Lanka is not solely a question of capacity. While training and
international expertise are needed in specific areas, and I
understand would be welcomed by the Government, I am convinced that
one of the major human rights shortcomings in Sri Lanka is rooted in
the absence of reliable and authoritative information on the credible
allegations of human rights abuses.”
3. The United Nations Special Rapporteur on Torture
- After his visit to Sri Lanka on 1–8 October
2007, the United Nations Special Rapporteur on Torture issued a press
release (dated 29 October 2007) in which he concluded:
“Though the Government has disagreed, in my
opinion the high number of indictments for torture filed by the
Attorney General's Office, the number of successful fundamental
rights cases decided by the Supreme Court of Sri Lanka, as well as
the high number of complaints that the National Human Rights
Commission continues to receive on an almost daily basis indicates
that torture is widely practiced in Sri Lanka. Moreover, I observe
that this practice is prone to become routine in the context of
counter-terrorism operations, in particular by the TID [Terrorism
Investigation Department].
Over the course of my visits to police stations and
prisons, I received numerous consistent and credible allegations from
detainees who reported that they were ill-treated by the police
during inquiries in order to extract confessions, or to obtain
information in relation to other criminal offences. Similar
allegations were received with respect to the army. Methods reported
included beating with various weapons, beating on the soles of the
feet (falaqa), blows to the ears ('telephono'), positional abuse when
handcuffed or bound, suspension in various positions, including
strappado, 'butchery', 'reversed butchery', and 'parrot's perch' (or
dharma chakara), burning with metal objects and cigarettes,
asphyxiation with plastic bags with chilli pepper or gasoline, and
various forms of genital torture. This array of torture finds its
fullest manifestation at the TID detention facility in Boossa.
Intimidation of victims by police officers to refrain
from making complaints against them was commonly reported, as were
allegations of threats of further violence, or threatening to
fabricate criminal cases of possession of narcotics or dangerous
weapons. Detainees regularly reported that habeas corpus hearings
before a magistrate either involved no real opportunity to complain
about police torture given that they were often escorted to courts by
the very same perpetrators, or that the magistrate did not inquire
into whether the suspect was mistreated in custody. Medical
examinations were frequently alleged to take place in the presence of
the perpetrators, or directed to junior doctors with little
experience in documentation of injuries.”
C. United States of America Department of State Report
- In its 2007 Country Report on Human Rights Practices –
Sri Lanka, dated 11 March 2008, the State Department observed:
“The government's respect for human rights
continued to decline due in part to the escalation of the armed
conflict. While ethnic Tamils composed approximately 16 percent of
the overall population, the overwhelming majority of victims of human
rights violations, such as killings and disappearances, were young
male Tamils. Credible reports cited unlawful killings by government
agents, assassinations by unknown perpetrators, politically motivated
killings and child soldier recruitment by paramilitary forces
associated with the government, disappearances, arbitrary arrests and
detention, poor prison conditions, denial of fair public trial,
government corruption and lack of transparency, infringement of
religious freedom, infringement of freedom of movement, and
discrimination against minorities. There were numerous reports that
the army, police, and pro-government paramilitary groups participated
in armed attacks against civilians and practiced torture, kidnapping,
hostage-taking, and extortion with impunity. The situation
deteriorated particularly in the government-controlled Jaffna
peninsula. By year's end extrajudicial killings occurred in Jaffna
nearly on a daily basis and allegedly perpetrated by military
intelligence units or associated paramilitaries. There were few
arrests and no prosecutions as a result of these abuses, although a
number of older cases continued to make slow progress through the
judicial system. Government security forces used the broad 2005
emergency regulations to detain civilians arbitrarily, including
journalists and members of civil society.
The LTTE, which maintained control of large sections of
the north, continued to attack civilians and engage in torture and
arbitrary arrest and detention; denied fair, public trials;
arbitrarily interfered with privacy; denied freedoms of speech,
press, and assembly and association; and forced recruitment,
including of children. The LTTE was also active in areas it did not
control and during the year carried out at least one politically
motivated killing in Trincomalee, a politically motivated suicide
attack in Colombo, a suicide attack against a government army base
near Batticaloa, a bombing of civilian shoppers in a suburb of
Colombo, and bombings of civilian buses in the south.”
- In the section of the report entitled “Arrest
and Detention”, the State Department noted, inter alia:
“Between November 30 and December 3, in response
to two LTTE bomb attacks in and around Colombo, the police conducted
random cordon and search operations and arrested nearly 2,500 Tamils
in the capital and an estimated 3,500 countrywide. The detained,
mostly male Tamil civilians were reportedly arrested based solely on
their Tamil surnames. The vast majority of the detainees were soon
released. The Supreme Court ordered the government to release the
detainees on bail if they were no longer required for questioning. By
year's end only 12 of the 372 arrestees held in the Boossa detention
camp were still in custody.”
- The
report also documented the arrest of forty-eight Tamils in a lodge in
a Colombo suburb on 6 October 2007 after the Supreme Court had
intervened to prevent the police carrying out such forcible removals
in June (see paragraph 79 below).
D. The Immigration and Refugee Board of Canada
- On 22 December 2006, the Immigration and Refugee Board
of Canada published the following “response to information
request” on the treatment of failed asylum seekers returning to
Sri Lanka, which provides:
“In 19 December 2006 correspondence to the
Research Directorate, an official at the Canadian High Commission in
Colombo provided corroborating information [in reference to the
letter from the British High Commission in Colombo dated 26 September
2005: see paragraphs 60–63 above] on the return of
failed asylum seekers to Sri Lanka, stating that
[r]eturnees, if identified to the airlines as such by
immigration authorities who are removing them to Sri Lanka, have an
established process awaiting them upon arrival. First, the Chief
Immigration Officer (arrivals) documents the arrival of the person,
takes a statement, and determines whether the returnee should be
granted entry as a Sri Lankan national. Next an officer of the State
Intelligence Service (SIS) documents the arrival and takes a
statement. Finally, an officer of the Criminal Investigation
Department (CID) of the Sri Lanka Police documents the arrival,
checks for outstanding warrants and takes a statement. If there is an
outstanding warrant for arrest, the returnee may be arrested.
Otherwise, the returnee is free to go.
Persons with previous problems with the authorities
An October 2006 report published by Hotham Mission's
Asylum Seeker Project (ASP), an Australian non-governmental
organization (NGO) that 'works with asylum seekers in the community'
(Hotham Mission n.d.), similarly notes that persons returning to Sri
Lanka who have had previous problems with the government of Sri Lanka
may be detained by the police upon their arrival (47). According to
the report, persons who have been detained or questioned in the past
are more likely to be arrested and, because of the state of emergency
and ongoing conflict in the country, 'may face further human rights
violations, such as torture' (Hotham Mission Oct. 2006, 47). The
report also notes that Sri Lanka's National Intelligence Bureau keeps
records on people dating back more than ten years and, since 2004,
has been using a national computerized database (ibid.).
Persons travelling without valid identity documents
Persons who leave Sri Lanka using false documents or who
enter the country under irregular or suspicious circumstances are
reportedly more likely to be singled out and questioned under the
country's current state of emergency (ibid.; see also Daily News 15
Sept. 2006). The state of emergency reportedly permits the Sri Lankan
authorities to make arrests without warrant and to detain persons for
up to 12 months without trial (US 8 Mar. 2006). Under Section 45 of
the country's Immigrants and Emigrants Act, amended in 1998, persons
found guilty of travelling with forged documents may be subject to a
fine of between 50,000 and 200,000 Sri Lankan Rupees (LKR)
[approximately CAD 533 (XE.com 12 Dec. 2006a) to CAD 2,133 (ibid. 12
Dec. 2006b)] and a jail term ranging from one to five years (Sri
Lanka 1998).
Tamil asylum seekers with scars
Cited in an October 2006 UK Home Office report, a 1
January 2005 position paper by the Office of the United Nations High
Commissioner for Refugees (UNHCR) indicates that Tamil asylum seekers
with scars may be more likely to be questioned and experience
'ill-treatment' by the Sri Lankan security forces upon their return
to Sri Lanka (31 Oct. 2006, 126). The paper states that
[the] UNHCR maintains its position ... that 'Tamil
asylum seekers with scars, should they be returned to Sri Lanka, may
be more prone to adverse identification by the security forces and
taken for rigorous questioning and potential ill-treatment' ...
Please note that the UNHCR's comments are strictly limited to the
risk of adverse identification, rigorous questioning, and potential
ill-treatment of returned persons with scars upon their arrival at
the airport, not the potential risk of arrest subsequent to the
initial interrogation at the airport. (UK 31 Oct. 2006, 126)
A 24 August 2006 letter from the British High Commission
in Colombo, cited in the October 2006 UK report suggests, however,
that physical examinations of returnees conducted by the authorities
are less common or have ceased altogether. The letter states that
[t]here is strong anecdotal evidence that scarring has
been used in the past to identify suspects. In ... conversations with
the police and in the media, the authorities have openly referred to
physical examinations being used to identify whether suspects have
undergone military style training. ... [R]ecent claims from contacts
in government ministries [indicate] that this practice has either
ceased or is used less frequently. At the very least, it appears to
only take place when there is another reason to suspect the
individual rather than [as part of] a routine measure for immigration
returnees. (UK 31 Oct. 2006, 127)
Further information from 2005 and 2006 on whether Tamils
asylum seekers with scars would be targeted by Sri Lankan security
forces upon their return could not be found among the sources
consulted by the Research Directorate.
Persons with an affiliation to the LTTE or other
political groups
The October 2006 Hotham Mission report cites information
obtained during consultations with the Sri Lanka Monitoring Mission
(SLMM), a body of international observers that monitors the ceasefire
agreement between the Sri Lankan government and the Liberation Tigers
of Tamil Eelam (LTTE) (SLMM n.d.), concerning the return of failed
asylum seekers (47). The SLMM indicates that if a person returning to
Sri Lanka has any previous affiliation with the LTTE, they may be
targeted by the police (ibid.). The organization also notes that if a
person has previous affiliations to certain individuals or political
groups, they may be targeted by the LTTE (ibid.). The SLMM provides
the example of persons who have been members of the People's
Liberation Organisation of Tamil Eelam (PLOTE), an inactive Tamil
militant organization (SATP n.d.), who were still being targeted by
the LTTE in Sri Lanka at the time the Hotham Mission report was
published (Hotham Mission Oct. 2006, 47).
Persons returning from abroad
Persons returning from abroad may also be subject to
extortion (Sri Lanka 27 Nov. 2006; Hotham Mission Oct. 2006, 49).
According to the Hotham Mission report, in some instances, returnees
have been pressured into paying immigration officials to be able to
pass through the airport without incident (ibid.). The report also
indicates that, across Sri Lanka, wealthy businessmen are being
kidnapped for ransom and that 'people returning from overseas may be
a target, as it will be assumed that they have money' (ibid.).
A 27 November 2006 article by the Media Centre for
National Security, a division of Sri Lanka's Ministry of Defence,
Public Security, Law and Order, provides a listing of 'extortion
rates of the LTTE.' According to the article, the LTTE charges 500
LKR [approximately CAD 5.30] per journey to persons returning from
abroad (Sri Lanka 27 Nov. 2006).
Returnees from Canada
In 19 December 2006 correspondence, an official at the
Canadian High Commission in Sri Lanka indicated that
'[s]ince
2004 ... no returnees from Canada have been arrested or experienced
negative repercussions at the airport or after exiting the airport
grounds in Sri Lanka. Sri Lankan authorities who have dealt with the
returnees have carried out their duties in a professional manner in
compliance with international norms.'”
E. Non-governmental Organisations' reports
1. The Independent International Group of Eminent
Persons
- In November 2006, the President of Sri Lanka appointed
a Commission of Inquiry to investigate and inquire into sixteen
incidents of alleged serious violations of human rights, including
abductions, disappearances and extra-judicial killings. The President
subsequently invited eleven eminent persons to form the Independent
International Group of Eminent Persons (“the IIGEP”) to
observe the Commission's work and to comment on the transparency of
its investigations and inquiries and their conformity with
international norms and standards. By a public statement released on
6 March 2008, the IIGEP announced its decision to terminate its
operation in Sri Lanka, concluding that the proceedings had fallen
far short of the transparency and compliance with basic international
norms and standards pertaining to investigations and inquiries.
2. Amnesty International
- In its 2007 Annual Report (“The State of the
World's Human Rights”), Amnesty International noted that in
2006 the human rights situation in Sri Lanka had deteriorated
dramatically. Unlawful killings, recruitment of child soldiers,
abductions, enforced disappearances and other human rights violations
and war crimes had increased. Civilians had been attacked by both
sides as fighting escalated between the Sri Lankan Government and the
LTTE. Hundreds of civilians had been killed and injured and more than
215,000 people displaced by the end of 2006. Homes, schools and
places of worship had been destroyed. Although both sides maintained
they were adhering to the ceasefire agreement, by mid-2006 it had in
effect been abandoned. A pattern of enforced disappearances in the
north and east re-emerged. There were reports of torture in police
custody; perpetrators continued to benefit from impunity.
- In its 2008 Annual Report of the same title, Amnesty
International further noted that “2007 was characterized by
impunity for violations of international human rights and
humanitarian law”. It stated that “soaring human rights
abuses” included hundreds of enforced disappearances, unlawful
killings of humanitarian workers, arbitrary arrests and torture. The
report also stated that the Sri Lankan police had conducted mass
arrests of more than 1,000 Tamils, allegedly in response to the
suicide bombings carried out in Colombo on 28 November 2007. The
arrests said to have been made on arbitrary and discriminatory
grounds using sweeping powers granted by the Emergency Regulations.
The report also quoted unnamed reports as stating that “Tamils
were bundled in bus loads and taken for interrogation”. The
report further alleged that more than four hundred of those arrested,
including fifty women, were taken to the Boosa Camp near Galle and
held in poor conditions of detention.
3. Human Rights Watch
a. Return to War: Human Rights Under Siege
- In the above report of August 2007, Human Rights Watch
characterised Sri Lanka as being in the midst of a human rights
crisis and found responsibility lay with both the Government and the
LTTE. The report catalogued instances of human rights abuses during
the armed conflict, including abductions, disappearances and
arbitrary arrests and detentions. It also found there to have been a
crackdown on dissent, a culture of impunity for human rights
violations and an abuse of the Emergency Regulations introduced by
the Government (see paragraph 55 above). It found that ethic Tamils
had suffered the brunt of abuses but members of the Muslim and
Sinhalese ethnic groups had also been the victims of Government human
rights violations. The report also noted that the Government had
detained an undetermined number of people (reaching into the
hundreds) under the Emergency Regulations, with young Tamil males
being the primary targets. The report also noted that on the
Government's own figures, Tamils constituted the overwhelming
majority of those detained. Large-scale arrests were said to be
particularly common after attacks attributed to the LTTE.
- The report also recorded attempts in early June 2007
by the Sri Lankan police to evict Tamils staying at lodges in and
around Colombo and to transport them to LTTE controlled areas. On 8
June 2007, the Supreme Court issued an order preventing the police
and others from continuing the expulsions or restricting the free
movement of Tamils in and out of Colombo.
b. Recurring Nightmare: State
Responsibility for Disappearances and Abductions in Sri Lanka
- In a further report published in March 2008, Human
Rights Watch documented ninety-nine instances of disappearances,
which it alleged were, for the most part, attributable to Government
security forces. The report stated that the vast majority of the
victims were ethnic Tamils, although Muslims and Sinhalese had also
been targeted, with individual being targeted primarily because of
their alleged membership in or affiliation to the LTTE. Young Tamil
men were among the most frequent targets, though civil society
activists were also among those who had disappeared. The report
characterised the Government's investigation and response to the
disappearances as “grossly inadequate”.
4. The International Crisis Group
- In a report of 20 February 2008, entitled “Sri
Lanka's Return to War: Limiting the Damage, Asia Report No. 146”,
the International Crisis Group commented on the rising ethnic
tensions in Sri Lanka since the collapse of the ceasefire and in
particular observed:
“With the collapse of the ceasefire, the LTTE's
return to terror attacks and the government's counter-terrorism
measures, fear and inter-ethnic tension have grown significantly.
Tamils increasingly see themselves, not the Tigers, as the
government's target. The decision in June 2007 to evict some 375
Tamils from hotels and boarding houses in Colombo and bus them 'home'
to the north and east and to the central hill country was a major
blow to confidence. This was followed by mass round-ups of more than
2,500 in Colombo in early December after a series of bomb attacks
blamed on the Tigers. [the accompanying footnote refers to a
Government press release of 5 December 2007] The arrests were
disorganised and indiscriminate, affecting many long-established
residents of the capital with proper identification. More than 400
were sent to detention centres in the south. Most were released
within a week, but the experience was a shock. Many felt such
'security measures' were meant to send a message that all Tamils pose
a security threat and are unwelcome in Colombo or Sinhalese areas.
Tamils from the north and east are particularly vulnerable (footnotes
omitted).”
- The
report also observed that violations of civil and political rights
were widespread, with the majority and worst in the north and east of
the country. There were daily occurrences of political killings and
disappearances. Both sides were responsible but additionally on the
government side there appeared to be no prosecutions for human rights
violations and an unwillingness on the part of the police to
investigate killings, disappearances and abductions. Other government
institutions were “equally ineffective”.
5. Medical Foundation for the Care of Victims of
Torture
- The Medical Foundation for the Care of Victims of
Torture is a United Kingdom registered charity which provides medical
and other rehabilitative support for victims of torture. In a 2007
report, submitted by the Government as part of their observations in
the present case, and entitled “Torture once again rampant in
the Sri Lanka conflict”, the Foundation summarised the work it
had done with Sri Lankan clients. The report stated that the
overwhelming majority of Sri Lankans seen by the Foundation were
Tamil and the majority of them were young males. The report stated
that its findings “challenged the UK Government's readiness to
return unsuccessful asylum applications to Sri Lanka where they might
face further abuse”.
F. Other relevant sources
1. The British Broadcasting Corporation
- On 19 August 2007, the British Broadcasting
Corporation's Sinhala website quoted Amnesty International as stating
that three Tamil men had been held incommunicado in Colombo after
having been returned there from Thailand. A Sri Lankan police
spokesman was also quoted as stating that the men had been detained
on immigration charges but refuted the allegation that they were
being held incommunicado. Amnesty International also stated that the
applications for political asylum in Thailand by the three men were
refused by UNHCR. The story was recorded in the March 2008 COI Report
at paragraph 8.16 and at paragraph 8.15 of the previous, November
2007 version of the same report.
2. The
Sri Lankan Government
85. From a press release available on the official website of the
Government of Sri Lanka, the Chief Government Whip, Jeyaraj
Fernandopulle, gave the following information at a press briefing on
4 December 2007. The Government had released 2,352 persons out
of a total of 2,554 persons taken into custody during search
operations conducted the previous weekend. 1,959 had been released on
the day of arrest and another 393 were released following
identification. The remaining 202 persons had been remanded or kept
under detention orders.
THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTION AND
ADMISSIBILITY
A. The parties' observations
- The
Government submitted that the application should be rejected for
non-exhaustion of domestic remedies, as the applicant had failed to
maintain his judicial review application, listed for 17 May 2007,
especially since any refusal at that oral hearing carried the right
of appeal to the Court of Appeal. The applicant had similarly failed
to appeal against the original decision of the Adjudicator. They
further referred to the fact that the applicant had given apparently
contradictory explanations for his decision to withdraw his
application for judicial review. Doubt had to be cast on the accuracy
of the applicant's explanation (see paragraph 87 below) that his
solicitors were informed by counsel that this was a “pre-LP”
case since LP was not promulgated until 6 August 2007 and thus
counsel could not have known before the applicant's judicial review
hearing on 17 May 2007 what the outcome of LP would be. There
was no direct evidence that the applicant's counsel had advised him
that there was no prospect of success.
- In response, the applicant submitted the letter from
his previous representatives to his representatives before this Court
and summarised at paragraph 19 above. He further relied on H. v.
the United Kingdom, no. 10000/82, Commission decision of 4
July 1983, Decisions and Reports (DR) 33, p. 247 and argued that
where counsel had advised a remedy had no prospect of success, it was
not to be considered an effective remedy for the purposes of Article
35 § 1 of the Convention. Any possible appeal from the
Adjudicator's determination had been overtaken by the lodging of a
fresh asylum claim on 29 March 2006. The domestic authorities had
every opportunity to provide redress and had ample opportunity to
consider the merits of his case.
B. The Court's assessment
- The
Court recalls that the rule of exhaustion of domestic remedies in
Article 35 § 1 of the Convention requires applicants first to
use the remedies provided by the national legal system, thus
dispensing States from answering before the European Court for their
acts before they have had an opportunity to put matters right through
their own legal system. The burden of proof is on the Government
claiming non-exhaustion to satisfy the Court that an effective remedy
was available in theory and in practice at the relevant time, namely,
that the remedy was accessible, capable of providing redress in
respect of the applicant's complaints and offered reasonable
prospects of success (see T. v. the United Kingdom [GC], no.
24724/94, 16 December 1999, § 55). Article 35 must also be
applied to reflect the practical realities of the applicant's
position in order to ensure the effective protection of the rights
and freedoms guaranteed by the Convention (Hilal v. the
United Kingdom (dec.), no. 45276/99, 8 February 2000).
- The
Court has consistently held that mere doubts as to the prospects of
success of national remedies do not absolve an applicant from the
obligation to exhaust those remedies (see, inter alia,
Pellegrini v. Italy (dec.), no. 77363/01, 26 May 2005;
MPP Golub v. Ukraine (dec.), no. 6778/05, 18 October
2005; and Milosevic v. the Netherlands (dec.), no. 77631/01,
19 March 2002). However, it has also on occasion found that where an
applicant is advised by counsel that an appeal offers no prospects of
success, that appeal does not constitute an effective remedy (see
Selvanayagam v. the United Kingdom
(dec.), no. 57981/00, 12 December 2002; see also H. v. the United
Kingdom, cited above; and McFeeley and others v. the United
Kingdom, no. 8317/78, Commission decision of 15 May 1980,
Decisions and Reports (DR) 20, p. 44). Equally, an applicant cannot
be regarded as having failed to exhaust domestic remedies if he or
she can show, by providing relevant domestic case-law or any other
suitable evidence, that an available remedy which he or she has not
used was bound to fail (Kleyn and Others v. the Netherlands [GC],
nos. 39343/98, 39651/98, 43147/98 and 46664/99, § 156,
ECHR 2003 VI; Salah Sheekh v. the Netherlands, no.
1948/04, §§ 121 et seq., ECHR 2007 ... (extracts)).
- In
determining whether the applicant in the present case has exhausted
domestic remedies for the purposes of Article 35 § 1 of the
Convention, the Court first observes that where the applicant seeks
to prevent his removal from a Contracting State, a remedy will only
be effective if it has suspensive effect (Jabari v. Turkey
(dec.), no. 40035/98, 28 October, 1999). Conversely, where a
remedy does have suspensive effect, the applicant will normally be
required to exhaust that remedy (Bahaddar v. the Netherlands,
judgment of 19 February 1998, Reports of Judgments and Decisions
1998 I, §§ 47 and 48). Judicial review, where it is
available and where the lodging of an application for judicial review
will operate as a bar to removal, must be regarded as an effective
remedy which in principle applicants will be required to exhaust
before lodging an application with the Court or indeed requesting
interim measures under Rule 39 of the Rules of Court to delay a
removal. This is particularly so when a claim for judicial review is
defined in the domestic law of the respondent State, inter alia,
as a claim to review the lawfulness of a decision (see paragraph 28
above) and section 6(1) of the Human Rights Act provides that it is
unlawful for a public authority, which would include the Secretary of
State, to act in a way which is incompatible with a Convention right
(see paragraph 27 above).
- In
the present case, while the Court notes the Government's concern as
to the veracity of the account furnished by the applicant in respect
of counsel's advice, it nonetheless considers that for the following
reasons it is unnecessary to rule on this aspect of the Government's
preliminary objection. It is clear that the basis for the applicant's
fresh asylum claim and successive applications for permission to
apply for judicial review was the deterioration in the security
situation in Sri Lanka. By the time the applicant's case was listed
for an oral hearing, three of the four High Court judges who had
considered the applicant's claim had formed the view that the
situation in Sri Lanka had deteriorated but that in itself was not
sufficient to alter either the Adjudicator or the Secretary of
State's decisions (see paragraphs 12, 13, 16 and 17 above). As the
Court has observed, Article 35 must be applied to reflect the
practical realities of the applicant's position. Notwithstanding its
view expressed above, that an application for judicial review is in
principle an effective remedy in such cases, the Court also considers
that applicants cannot reasonably be expected continually to make
applications for permission to apply for judicial review where
previous such applications have failed. In the circumstances of the
applicant's case, the Court finds that, having regard to the
practical realities of his position, he could not reasonably be
expected to have renewed his application for permission to apply for
judicial review at the oral hearing since by that stage it could not
be said that the application had any reasonable prospects of success.
- The
Court therefore rejects the Government's preliminary objection on
non-exhaustion. It further notes that the application is not
inadmissible on any other grounds. It must therefore be declared
admissible.
II. ALLEGED VIOLATION OF ARTICLES 2 AND 3 OF THE
CONVENTION
- The
applicant complained that it would expose him to a real risk of being
subjected to treatment in breach of Article 3 of the Convention
and/or a violation of Article 2 if he were to be returned to Sri
Lanka. Articles 2 and 3 provide, so far as relevant, as follows:
“Article 2
1. Everyone's right to life shall be
protected by law. No one shall be deprived of his life intentionally
save in the execution of a sentence of a court following his
conviction of a crime for which this penalty is provided by law.
...
Article 3
No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
- The
Government contested that argument and also argued that the
applicant's complaint under Article 2 was indissociable from his
complaint under Article 3.
- The
Court agrees with the Government that it is more appropriate to deal
with the complaint under Article 2 in the context of its examination
of the related complaint under Article 3 and will proceed on this
basis (Said v. the Netherlands, no. 2345/02, § 37,
ECHR 2005 VI; D. v. the United Kingdom, judgment of 2 May
1997, Reports 1997 III, § 59).
A. The parties' submissions
1. The applicant
- The
applicant relied on the AIT determination in LP, the UNHCR
Position Paper and the reports by Amnesty International and Human
Rights Watch (see paragraphs 30–46, 65–68, 76 and 78–79
above), as evidence of a general decline in the human rights
situation in Sri Lanka. This demonstrated that the Court would need
to reassess its findings in Venkadajalasarma v. the Netherlands,
no. 58510/00 and Thampibillai v. the Netherlands, no.
61350/00, judgments of 17 February 2004, where it had found that, at
the time, the considerable improvement in the security situation in
Sri Lanka meant the return of two Tamils who had provided low-level
support to the LTTE would not give rise to a violation of Article 3.
In particular, the UNHCR Position Paper, in contrast to the Home
Office Operational Guidance Note of 9 March 2007, suggested a much
broader risk to Tamils than simply a risk to high profile Tamils. It
was also not possible for the Government to rely on the AIT's
determination in PS on the sufficiency of protection from the
LTTE in Colombo since the risk to the applicant also came from the
Sri Lankan authorities.
- The
applicant relied on the AIT's determination in LP and
identified nine of the twelve risk factors set out in that
determination which applied to him and which, he argued, increased
the risk of harm to him at the hands of the Sri Lankan authorities.
First, he was a young male Tamil from the north-east of the country
and thus clearly at a higher risk of both persecution from the Sri
Lankan authorities and forced recruitment by the LTTE than many
ethnic Tamils. The LTTE had already tried twice to recruit him.
Second, he had a previous record as a suspected LTTE member and had
been arrested and ill-treated on six occasions because of this
suspicion. The fact that he had been photographed and his
fingerprints taken meant there was a record of his detention. Third,
and on the same grounds, the risk factor of a previous criminal
record or arrest warrant also applied to him. Fourth, after each
detention the applicant was released without charge but during his
last detention his father secured his release by signing a suspicious
document indicating that his release was abnormal and akin to those
who were at greater risk because they had jumped bail or escaped from
custody. Fifth, while he was not aware of the content of the document
his father had signed, when considered with the taking of his
photograph and fingerprints, this placed him in the same category as
someone who had signed a confession or similar document. Against the
background of the current situation in Sri Lanka, it was reasonable
to assume that the document, whatever its content, could be used
against him on his return. Sixth, the scars he bore from his
ill-treatment were clearly relevant, though he observed that the LP
determination indicated that this was not determinative. Seventh, in
respect of his return from London, he did not claim to have been
fund-raising for the LTTE or that the Sri Lankan High Commission was
aware of his involvement with the LTTE so his return from London
would not be sufficient. However, since suspicion fell on those
previously known to the authorities and returned from London, this
factor contributed cumulatively to the risk he would face if
returned. The same considerations applied to the eighth factor he
identified, having made an asylum claim abroad. The ninth and final
factor, having relatives in the LTTE, was of particular significance
to the applicant given his brother's associations with the LTTE and
the LTTE's suspicion that his father had informed on them to the
army.
- Relying
further on the UNHCR Position Paper, the applicant considered that in
respect of the risk to him from the LTTE, there was no internal
flight alternative available to him since he was also at risk from
the Sri Lankan authorities in Government-controlled areas. In Salah
Sheekh, cited above (§ 148), the Court had accepted the
general statements made by the UNHCR on the situation in the
“relatively unsafe” areas of Somalia in so far as members
of the Ashraf minority were concerned and the absence of any internal
flight alternative. He argued that in Sultani v. France,
no. 45223/05, ECHR 2007 ... (extracts) the Court had again
accepted that it may only be necessary for an applicant to prove that
he belongs to a minority group that is particularly at risk. As
demonstrated by the UNHCR Position Paper, the present applicant
belonged to an ethnic group for whom no safe area existed. Even if
the Court did not accept such a generalised approach, in light of the
applicant's particular circumstances, the real risk to him was
sufficient to make internal flight unavailable.
- It
was also not open to the Government to rely on their own country
information in contradiction to the recommendations of the UNHCR
Position paper since it would allow Contracting States to avoid their
Convention obligations by invoking their own information instead of
objective information collected by independent bodies.
- Finally,
the applicant relied on Council Directive 2004/83/EC and submitted
that under Article 53 of the Convention the level of protection
offered by the Convention had to be equal or higher to that in the
Directive.
2. The Government
- While
the Government did not accept that there was a real risk to the
applicant in any area of Sri Lanka, the latest objective country
information made it clear that an individual in the applicant's
position would not be at risk in Colombo, where they sought to return
him. They relied on the Court's rulings in Venkadajalasarma
and Thampibillai, cited above. The Court's findings in those
cases were reflected in the AIT's country guidance determination in
PS (see paragraph 47 above). In the light of the domestic
authorities' decisions in the present applicant's case, a
fortiori, there would be no violation if he were to be returned.
- It
was necessary to consider whether the situation in Sri Lanka had
changed sufficiently to mean that removal there would be a violation
of Article 3, but the Government relied on the findings of the
domestic authorities that, in the circumstances of the applicant's
case, the situation had not changed sufficiently to warrant such a
conclusion. The Government relied on the Home Office Operational
Guidance Notes of 9 March 2007 and 5 November 2007 and the AIT's
determination in LP (see paragraphs 58–59 and 30–46
above). The UNHCR Position Paper of December 2006 had been carefully
considered by the Government when it prepared the Operational
Guidance Notes. Such UNHCR Position Papers had to be understood in
their true context and in this connection the Government relied on
the Immigration Appeal Tribunal's determination in NM and Others
(see paragraphs 48 et seq. above) and the finding there that such
papers were to be treated with care since language used by the UNHCR
was not framed by reference to the Convention and the high threshold
of Article 3 as understood in this Court's case-law. This was
accepted by the AIT in LP and indeed the particular position
paper of December 2006 had been duly considered by it. According to
the BBC's report of 19 August 2007, the UNHCR in Thailand had itself
refused the asylum claims of three Tamils (see paragraph 84 above).
- In respect of the nine risk factors relied on by the
applicant, the Government adopted the approach to assessing these
risk factors which had been set out in LP and argued that the
applicant had provided no evidence either to the domestic authorities
or this Court to substantiate the assertion that these risk factors
were engaged in his particular case and even less so that they would
lead to a real risk of treatment contrary to Article 3. The risk to
him as a young male Tamil was only relative to the risk to other
Tamils. There was an express finding by the Adjudicator that there
was no record of his even having been involved with the LTTE and
there was no evidence that he had a criminal record. The applicant
had not jumped bail or escaped from custody. The Government thus
relied on the fact that in LP the AIT had made it clear that
while someone who had escaped from custody or jumped bail would be at
a higher risk of being identified at Colombo airport, it would be
very different if a person had merely been informally detained and
released after payment of a bribe. There was no evidence that the
document signed by the applicant's father amounted to a confession
and no evidence that it would ever be used against him in Sri Lanka.
In respect of the applicant's scars, the Government again relied on
the fact that in LP the AIT had found that scarring was
significant only when there were other factors that would bring
someone to the attention of the authorities. Without further evidence
from the applicant, the same reasoning applied to the fact that he
would be returning from London and had made an asylum claim abroad.
Finally, according to the applicant, his brother had assisted the
LTTE only through non-combatant work before he fled to Saudi Arabia.
- The domestic authorities had taken adequate account
of the most recent security situation in Sri Lanka. In particular the
Secretary of State's letter to the applicant of 10 January 2007 (see
paragraph 15 above) was fully reasoned and considered all available
objective evidence and its approach was subsequently confirmed in the
LP case. None of the available objective country information
undermined the conclusions of the AIT in LP and the need for a
detailed and careful risk assessment in relation to the personal
circumstances of each applicant. While the general human rights
situation in Sri Lanka had deteriorated, there was no generalised
risk applicable to Tamils being returned there. This approach had
been confirmed by the High Court when considering the applications of
five Tamils in light of the exchange of letters between the Section
Registrar and the Agent of the Government (see paragraph 21 above).
- As
to the applicant's reliance on Directive 2004/83/EC (see paragraphs 51
and 100 above), the Government observed that Article 53 of the
Convention did not prevent Contracting Parties from providing a
higher level of protection than that provided for by the Convention.
The interpretation of the Directive was primarily for the European
Court of Justice and ultimately could be subject to supervision by
the Court (Bosphorus Hava Yolları Turizm ve Ticaret Anonim
Şirketi v. Ireland [GC], no. 45036/98, ECHR 2005 VI).
B. The Court's assessment
- In
its assessment in the present case, the Court will consider the
general principles applicable to expulsion cases. It will then set
out its approach to the objective information which has been placed
before it. On that basis, it will assess the risk to Tamils returning
to Sri Lanka and the individual circumstances of the applicant's case
in order to determine whether there would be a violation if he were
to be returned to Sri Lanka.
- In
doing so, the Court also recalls that its sole task under Article 19
of the Convention is to ensure the observance of the engagements
undertaken by the High Contracting Parties in the Convention and the
Protocols thereto. It is not the Court's task to apply directly the
level of protection offered in other international instruments and
therefore considers that the applicant's submissions on the basis of
Directive 2004/83/EC are outside the scope of its examination of the
present application.
1. General principles
- In
assessing whether there would be a violation of Article 3 if a
Contracting State were to expel an individual to another State, the
Court will consider the following principles, as they appear in its
settled case-law.
- In
the first instance, Contracting States have the right as a matter of
international law and subject to their treaty obligations, including
the Convention to control the entry, residence and expulsion of
aliens (Üner v. the Netherlands [GC], no. 46410/99,
§ 54, ECHR 2006 ....; Abdulaziz, Cabales and Balkandali
v. the United Kingdom, judgment of 28 May 1985, Series A no. 94,
p. 34, § 67, Boujlifa v. France, judgment of 21 October
1997, Reports 1997 VI, p. 2264, § 42). The right to
political asylum is also not contained in either the Convention or
its Protocols (Salah Sheekh, cited above, § 135, with
further authorities). However, expulsion by a Contracting State may
give rise to an issue under Article 3, and hence engage the
responsibility of that State under the Convention, where substantial
grounds have been shown for believing that the person concerned, if
deported, faces a real risk of being subjected to treatment contrary
to Article 3. In such a case, Article 3 implies an obligation not to
deport the person in question to that country (Saadi v. Italy
[GC], no. 37201/06, § 125, 28 February 2008).
- The
assessment whether there are substantial grounds for believing that
the applicant faces such a real risk inevitably requires that the
Court assess the conditions in the receiving country against the
standards of Article 3 of the Convention (Mamatkulov and Askarov
v. Turkey [GC], nos. 46827/99 and 46951/99, § 67, ECHR
2005 I). These standards imply that the ill-treatment the
applicant alleges he will face if returned must attain a minimum
level of severity if it is to fall within the scope of Article 3. The
assessment of this is relative, depending on all the circumstances of
the case (Hilal v. the United Kingdom, no. 45276/99, §
60, ECHR 2001 II). Owing to the absolute character of the right
guaranteed, Article 3 of the Convention may also apply where the
danger emanates from persons or groups of persons who are not public
officials. However, it must be shown that the risk is real and that
the authorities of the receiving State are not able to obviate the
risk by providing appropriate protection (H.L.R. v. France,
judgment of 29 April 1997, Reports 1997 III, § 40).
- The
assessment of the existence of a real risk must necessarily be a
rigorous one (see Chahal v. the United Kingdom, judgment of 15
November 1996, Reports 1996-V, § 96; and Saadi v.
Italy, cited above, § 128). It is in principle for the
applicant to adduce evidence capable of proving that there are
substantial grounds for believing that, if the measure complained of
were to be implemented, he would be exposed to a real risk of being
subjected to treatment contrary to Article 3 (see N. v. Finland,
no. 38885/02, § 167, 26 July 2005). Where such
evidence is adduced, it is for the Government to dispel any doubts
about it.
- If
the applicant has not yet been extradited or deported when the Court
examines the case, the relevant time will be that of the proceedings
before the Court (see Saadi v. Italy, cited above, §
133). A full and ex nunc assessment is called for as the
situation in a country of destination may change in the course of
time. Even though the historical position is of interest in so far as
it may shed light on the current situation and its likely evolution,
it is the present conditions which are decisive and it is therefore
necessary to take into account information that has come to light
after the final decision taken by the domestic authorities (see Salah
Sheekh, cited above, § 136).
- The
foregoing principles, and in particular the need to examine all the
facts of the case, require that this assessment must focus on the
foreseeable consequences of the removal of the applicant to the
country of destination. This in turn must be considered in the light
of the general situation there as well as the applicant's personal
circumstances (Vilvarajah and Others v. the United Kingdom,
judgment of 30 October 1991, Series A no. 215, § 108).
In this connection, and where it is relevant to do so, the Court will
have regard to whether there is a general situation of violence
existing in the country of destination.
- However,
a general situation of violence will not normally in itself entail a
violation of Article 3 in the event of an expulsion (see H.L.R.,
cited above, § 41). Indeed, the Court has rarely found a
violation of Article 3 on that ground alone. For example, in Müslim
v. Turkey, no. 53566/99, 26 April 2005, where the Court
considered the expulsion of an Iraqi national of Turkmen origin to
Iraq, it found the mere possibility of ill-treatment because of the
unstable situation in that country at the material time would not in
itself amount to a breach of Article 3 (paragraph 70 of the
judgment). Equally, in Sultani, cited above, § 67, the
Court took notice of the general situation of violence at that time
in Afghanistan but found that this, without more, was not sufficient
to find a violation of Article 3. Moreover, in the Thampibillai
and Venkadajalasarma judgments relied on by the parties in
their observations in the present case, the Court considered the
considerable improvement in the security situation in Sri Lanka and
the “very real progress” in the peace process at the
material time as relevant factors in its finding that there were no
substantial grounds for believing that the applicants would be
exposed to a real risk of ill-treatment contrary to Article 3
(Thampibillai at paragraphs 64 and 65; Venkadajalasarma at
paragraphs 66 and 67). In the earlier case of Vilvarajah and
Others, cited above, the Court recognised the possibility of
detention and ill-treatment in respect of young Tamil males returning
to Sri Lanka. However, it insisted that the applicants show that
special distinguishing features existed in their cases that could or
ought to have enabled the United Kingdom authorities to foresee that
they would be treated in a manner incompatible with Article 3
(paragraphs 111-112 of the judgment). Finally, while in Ahmed v.
Austria, judgment of 17 December 1996, Reports 1996 VI,
the Court did find a violation of Article 3 partly on account of
conditions in Somalia in the early 1990s, it also noted that the
Austrian Government had not contested the applicant's submission that
there was no observable improvement in the general situation and had
also accepted that at the material time the applicant could not be
returned there without being exposed to the risk of treatment
contrary to Article 3 (see paragraph 5 of the judgment).
- From
the foregoing survey of its case-law, it follows that the Court has
never excluded the possibility that a general situation of violence
in a country of destination will be of a sufficient level of
intensity as to entail that any removal to it would necessarily
breach Article 3 of the Convention. Nevertheless, the Court would
adopt such an approach only in the most extreme cases of general
violence, where there was a real risk of ill-treatment simply by
virtue of an individual being exposed to such violence on return.
- Exceptionally,
however, in cases where an applicant alleges that he or she is a
member of a group systematically exposed to a practice of
ill-treatment, the Court has considered that the protection of
Article 3 of the Convention enters into play when the applicant
establishes that there are serious reasons to believe in the
existence of the practice in question and his or her membership of
the group concerned (see Saadi v. Italy, cited above, § 132).
In those circumstances, the Court will not then insist that the
applicant show the existence of further special distinguishing
features if to do so would render illusory the protection offered by
Article 3. This will be determined in light of the applicant's
account and the information on the situation in the country of
destination in respect of the group in question (see Salah Sheekh,
cited above, § 148). The Court's findings in that case as to the
treatment of the Ashraf clan in certain parts of Somalia, and the
fact that the applicant's membership of the Ashraf clan was not
disputed, were sufficient for the Court to conclude that his
expulsion would be in violation of Article 3.
- In
determining whether it should or should not insist on further special
distinguishing features, it follows that the Court may take account
of the general situation of violence in a country. It considers that
it is appropriate for it to do so if that general situation makes it
more likely that the authorities (or any persons or group of persons
where the danger emanates from them) will systematically ill-treat
the group in question (see Salah Sheekh, § 148; Saadi
v. Italy, §§ 132 and 143; and, by converse implication,
Thampibillai, §§ 64 and 65; Venkadajalasarma, §§
66 and 67, all cited above).
2. The assessment of objective information
- In
the light of the large amount of objective information placed before
it by the parties, the Court also considers it necessary to restate
the approach it takes to the assessment of such information before
considering what conclusions may be drawn from it the present case.
This is particularly important given that there is a dispute between
the parties as to the weight to be attached to the UNHCR's assessment
of the general situation in Sri Lanka (see paragraphs 96 and 102).
- In
this connection, the Court recalls the principles recently set out in
Saadi v. Italy, cited above, §§ 128-133, that in
assessing conditions in the proposed receiving country, the Court
will take as its basis all the material placed before it or, if
necessary material obtained proprio motu. It will do so,
particularly when the applicant – or a third party within the
meaning of the Article 36 of the Convention – provides reasoned
grounds which cast doubt on the accuracy of the information relied on
by the respondent Government. The Court must be satisfied that the
assessment made by the authorities of the Contracting State is
adequate and sufficiently supported by domestic materials as well as
by materials originating from other reliable and objective sources
such as, for instance, other Contracting or non-Contracting States,
agencies of the United Nations and reputable non-governmental
organisations (see Salah Sheekh, cited above, § 136;
Garabayev v. Russia, no. 38411/02, § 74, 7 June 2007,
ECHR 2007 ... (extracts)). As regards the general situation in a
particular country, the Court has often attached importance to the
information contained in recent reports from independent
international human-rights-protection organisations such as Amnesty
International, or governmental sources, including the US State
Department (see Saadi v. Italy, cited above, § 131).
- In
assessing such material, consideration must be given to its source,
in particular its independence, reliability and objectivity. In
respect of reports, the authority and reputation of the author, the
seriousness of the investigations by means of which they were
compiled, the consistency of their conclusions and their
corroboration by other sources are all relevant considerations (see
Saadi v. Italy, cited above, § 143).
- The
Court also recognises that consideration must be given to the
presence and reporting capacities of the author of the material in
the country in question. In this respect, the Court observes that
States (whether the respondent State in a particular case or any
other Contracting or non-Contracting State), through their diplomatic
missions and their ability to gather information, will often be able
to provide material which may be highly relevant to the Court's
assessment of the case before it. It finds that same consideration
must apply, a fortiori, in respect of agencies of the United
Nations, particularly given their direct access to the authorities of
the country of destination as well as their ability to carry out
on-site inspections and assessments in a manner which States and
non-governmental organisations may not be able to do.
- While
the Court accepts that many reports are, by their very nature,
general assessments, greater importance must necessarily be attached
to reports which consider the human rights situation in the country
of destination and directly address the grounds for the alleged real
risk of ill-treatment in the case before the Court. Ultimately, the
Court's own assessment of the human rights situation in a country of
destination is carried out only to determine whether there would be a
violation of Article 3 if the applicant in the case before it were to
be returned to that country. Thus the weight to be attached to
independent assessments must inevitably depend on the extent to which
those assessments are couched in terms similar to Article 3. Thus in
respect of the UNHCR, due weight has been given by the Court to the
UNHCR's own assessment of an applicant's claims when the Court
determined the merits of her complaint under Article 3 (see
Jabari v. Turkey, no. 40035/98, § 41, ECHR 2000 VIII).
Conversely, where the UNHCR's concerns are focussed on general
socio-economic and humanitarian considerations, the Court has been
inclined to accord less weight to them, since such considerations do
not necessarily have a bearing on the question of a real risk to an
individual applicant of ill-treatment within the meaning of Article 3
(see Salah Sheekh, cited above, § 141).
3. Assessing the risk to Tamils returning to Sri Lanka
- In
considering whether the applicant has established that he would be at
real risk of ill-treatment in Sri Lanka, the Court observes as a
preliminary matter that the Government propose to remove him to
Colombo. In the light of this, the Court does not consider it
necessary to examine the risk to Tamils in LTTE controlled areas or
any other part of the country outside Colombo and will proceed to
examine the risk to Tamils returning to Sri Lanka on this basis.
- The
Court first observes that it is accepted by the parties to the case
that there has been a deterioration in the security situation in Sri
Lanka. The Court finds no reason to disagree with the parties'
assessment and notes that all the objective evidence before it
supports this conclusion. This deterioration took place before the
present application was lodged with the Court and has continued while
the case has been pending, particularly since the formal end of the
ceasefire in January 2008. It is also clear to the Court that the
evidence before it supports the conclusion that the deterioration in
the security situation in Sri Lanka has been accompanied by an
increase in human rights violations, on the part both of the LTTE and
the Sri Lankan Government. Killings, abductions and disappearances
have increased (see the UNHCR Position Paper at paragraph 65 above;
the United Nations High Commissioner for Human Rights at paragraph 69
above; the 2007 Amnesty International report at paragraph 76 above;
and the Human Rights Watch report at paragraph 78 above).
Investigations into such serious human rights violations are
inadequate (see the IIGEP at paragraph 75 above and the Human Rights
Watch report “Recurring Nightmare” at paragraph 80
above). Torture and ill-treatment are common place (see the
conclusions of the United Nations Special Rapporteur on Torture at
paragraph 70 above) and there is also clear evidence of what the AIT
described as “a culture of torture with impunity” (see
paragraph 35 above and the 2008 Amnesty International report at
paragraph 77 above).
- However,
the Court also notes that the domestic authorities, while recognising
this deterioration and the corresponding increase in human rights
violations, did not conclude that this created a general risk to all
Tamils returning to Sri Lanka (see in particular the findings of the
AIT in LP in paragraphs 232 –234 of the determination;
set out at paragraph 43 above), nor has the applicant in the present
case sought to challenge that conclusion in his submissions. The
Court has examined closely the developments in Sri Lanka since the
AIT's determination in LP, particularly the information that
has become available since that determination (see paragraphs 53–85
and 124 above). It considers that there is nothing in that objective
information which would require the Court to reach a different
conclusion of its own motion.
- The
Court also finds that in reaching the conclusions they did, the
United Kingdom authorities, including the Secretary of State, the AIT
and the High Court, gave serious and anxious consideration to the
risk to Tamils returning to Sri Lanka (see paragraphs 58–59,
30–46, and 50 above). They considered all the relevant
objective evidence and, just as importantly, considered the
appropriate weight to be given to it.
- In
respect of the UNHCR Position Paper (see paragraphs 65–68
above) and in light of its own observations at paragraphs 118–122
above, the Court shares the view of the AIT in LP that
“substantive weight” should be accorded to it. However,
the Court also accepts the domestic authorities' view that the UNHCR
Position Paper, by its nature, speaks in necessarily broad terms. In
contrast to the findings made by the UNHCR and relied on by the Court
in the Jabari judgment, cited above, §§ 18 and 41,
the UNHCR's Position Paper is a general survey of the varying risks
to each of Sri Lanka's different ethnic groups. As such, the views
expressed in that paper could not themselves be decisive in the
domestic authorities' assessment of the risk to Tamils returning to
Sri Lanka and cannot be decisive in the Court's own assessment of the
same. Indeed, the Position Paper said that Tamils “with certain
profiles” were liable to suffer serious human rights
transgressions and that where individual acts of harassment did not
in and of themselves constitute persecution, taken together, they
might cumulatively amount to a serious violation of human rights and
therefore be persecutory.
- It
follows that both the assessment of the risk to Tamils of “certain
profiles” and the assessment of whether individual acts of
harassment cumulatively amount to a serious violation of human rights
can only be done on an individual basis. Thus, while account must be
taken of the general situation of violence in Sri Lanka at the
present time, the Court is satisfied that it would not render
illusory the protection offered by Article 3 to require Tamils
challenging their removal to Sri Lanka to demonstrate the existence
of further special distinguishing features which would place them at
real risk of ill-treatment contrary to that Article (see Salah
Sheekh, cited above, § 148 and paragraphs 116–117
above).
- The
Court therefore considers that it is in principle legitimate, when
assessing the individual risk to returnees, to carry out that
assessment on the basis of the list of “risk factors”,
which the domestic authorities, with the benefit of direct access to
objective information and expert evidence, have drawn up. The Court
also notes that the AIT in LP considered all the relevant risk
factors identified and put before it by the appellant in that case
and that the AIT itself was careful to avoid the impression that
these risk factors were a “check list” or exhaustive. It
further notes that in the present case, the parties' observations as
to the individual risk to the applicant are made with reference to
the same risk factors considered in LP. Furthermore, the
applicant has not identified any further risk factors which were not
considered in LP but which would assist the Court in its
assessment. As it has recalled, the Court's own assessment must be
full and ex nunc (paragraph 112 above) but on the basis of the
objective evidence before it, the Court itself does not consider it
necessary to identify any additional risk factors which have not been
duly considered by the domestic authorities or raised by the parties
in their observations.
- Despite
this conclusion, the Court emphasises that the assessment of whether
there is a real risk must be made on the basis of all relevant
factors which may increase the risk of ill-treatment. In its view,
due regard should also be given to the possibility that a number of
individual factors may not, when considered separately, constitute a
real risk; but when taken cumulatively and when considered in a
situation of general violence and heightened security, the same
factors may give rise to a real risk. Both the need to consider all
relevant factors cumulatively and the need to give appropriate weight
to the general situation in the country of destination derive from
the obligation to consider all the relevant circumstances of the case
(see the Hilal judgment, cited above, § 60).
- Moreover,
the Court finds that the information before it points to the
systematic torture and ill-treatment by the Sri Lankan authorities of
Tamils who will be of interest to them in their efforts to combat the
LTTE. This was the underlying conclusion which formed the basis of
the elaboration of the risk factors in LP (see paragraphs 227
and 232 of the determination, set out at paragraphs 42–43
above). Indeed, as Mr Justice Collins later put it (see paragraph 50
above):
“The test therefore, as I see it, is whether there
are factors in an individual case, one or more, which might indicate
that authorities would regard the individual as someone who may well
have been involved with the LTTE in a sufficiently significant
fashion to warrant his detention or interrogation. If interrogation
and detention are likely, then, in the context of the approach of the
authorities in Sri Lanka, torture would be a real risk and thus a
breach of Article 3 might occur.”
- The
Court observes that the evidence which has become available since the
domestic authorities considered the return of Tamils to Sri Lanka
provides further support for this conclusion. The United Nations
Special Rapporteur on Torture found that torture is widely practiced
in Sri Lanka and observed it was “prone to become routine”
in the context of counter-terrorism operations (see paragraph 70
above). This is corroborated by the annual reports of the US State
Department and Amnesty International (see paragraphs 76, 77 and 71
above) and the report of the Medical Foundation for the Care of
Victims of Torture (see paragraph 83 above). The culture of impunity
identified by the AIT in LP was also noted by the United
Nations High Commissioner for Human Rights in her visit to Sri Lanka:
her press release described the prevalence of impunity as “alarming”
(see paragraph 69 above).
- On
the basis of this evidence, the Court therefore finds that, in the
context of Tamils being returned to Sri Lanka, the protection of
Article 3 of the Convention enters into play when an applicant can
establish that there are serious reasons to believe that he or she
would be of sufficient interest to the authorities in their efforts
to combat the LTTE as to warrant his or her detention and
interrogation (see Saadi v. Italy, cited above, § 132).
- In
respect of returns to Sri Lanka through Colombo, the Court also finds
that there is a greater risk of detention and interrogation at the
airport than in Colombo city since the authorities will have a
greater control over the passage of persons through any airport than
they will over the population at large. In addition, the majority of
the risk factors identified by AIT in LP will be more likely
to bring a returnee to the attention of the authorities at the
airport than in Colombo city. It is also at the airport that the
cumulative risk to an applicant arising from two or more factors will
crystallise. Hence the Court's assessment of whether a returnee is at
real risk of ill-treatment may turn on whether that person would be
likely to be detained and interrogated at Colombo airport as someone
of interest to the authorities. While this assessment is an
individual one, it too must be carried out with appropriate regard to
all relevant factors taken cumulatively including any heightened
security measures that may be in place as a result of an increase in
the general situation of violence in Sri Lanka.
- In
this connection, the Court notes that the objective evidence before
it contains different accounts of the precise nature of the
procedures followed at Colombo airport and the nature of the
information technology there (see the British High Commission letters
and the Immigration and Refugee Board of Canada report at paragraphs
60–63 and 74 above). Indeed, the evidence suggests that the
procedures followed by the Sri Lankan authorities may change over
time. However, the Court also notes that, with the exception of the
extracts of the British High Commission's letter of 25 January 2008
that appeared in the March 2008 COI Report (see paragraph 60 above),
all the above evidence was considered by the AIT in LP where
it was undisputed that records were kept and interviews conducted at
the airport and where the AIT found that computerised records were
available to the police at the airport, from which they could
identify possible “bail jumpers” (see paragraph 35
above). In the light of the extensive evidence before the AIT on this
subject and its findings, the Court cannot come to a different
conclusion on the basis of the uncorroborated British High
Commission's letter of 25 January 2008 and the observations therein
that the Sri Lankan CID do not use computers, particularly when, as
the COI Report noted, in its letter of 24 August 2006, the British
High Commission had previously reported that “the Sri Lankan
authorities have a good IT system to track arrivals and departures at
the main airport and are able to track, in most cases, whether an
individual is in the country or not” (see paragraph 60 above).
The Court also considers it to be of some significance that both the
British High Commission letters and the assessment of the Immigration
and Refugee Board of Canada indicate that there are established and
routine procedures for briefly detaining and questioning returnees at
the airport.
- This
evidence on procedures and facilities at the airport must also be
placed alongside the AIT's finding on the availability of lists of
failed asylum seekers to the Sri Lankan authorities, which was based
on the British High Commission's letter of 24 August 2006 (see
paragraph 40 above) and the evidence that scarring has been used in
the past by the authorities as a means of identifying Tamils who will
be of interest to them (see the finding of the AIT set out at
paragraph 37 above). The Court notes the AIT's finding, in light of
that evidence, that “failed asylum seekers are processed
relatively quickly and with no difficulty beyond some possible
harassment” (see paragraph 44 above) but it considers that at
the very least the Sri Lankan authorities have the technological
means and procedures in place to identify at the airport failed
asylum seekers and those who are wanted by the authorities. The Court
further finds that it is a logical inference from these findings that
the rigour of the checks at the airport is capable of varying from
time to time, depending on the security concerns of the authorities.
These considerations must inform the Court's assessment of the risk
to the applicant.
- Finally,
in the Court's view, it cannot be said that there is a generalised
risk to Tamils from the LTTE in a government controlled area such as
Colombo. The Court accepts the findings of the domestic authorities
that individual Tamils may be able to demonstrate a real and personal
risk to them from the LTTE in Colombo. However, it also accepts their
assessment that this will only be to Tamils with a high profile as
opposition activists, or as those seen by the LTTE as renegades or
traitors (see in particular the PS determination of the IAT at
paragraph 47 above). The Court therefore considers that it must also
examine any complaint as to the risk from the LTTE in the context of
the individual circumstances of the applicant's case.
4. The applicant's case
- On
the basis of the foregoing observations, the Court will examine the
applicant's particular circumstances in order to determine whether
there would be a violation of Article 3 if he were to be expelled to
Sri Lanka. As the Court has observed, the applicant complained that
he was at real risk from both the LTTE and the Sri Lankan
authorities. Consequently, it will examine each of these aspects of
his complaint in turn.
- Before
doing so, it observes that the Government do not appear to have
disputed the Adjudicator's findings as to the credibility of the
applicant's account. These were that the applicant bears scars from
ill-treatment during detention; that he was arrested by the army six
times between 1990 and 1997 on suspicion of his involvement with the
LTTE and that on the last occasion he was photographed, fingerprinted
and released after his father signed a document (see paragraph 8
above). The Court also notes the Adjudicator's finding that,
following the ceasefire agreement, the applicant would be of no
interest to the Sri Lankan authorities because he had been held for
short periods and released without charge on each occasion (see
paragraph 9 above). Finally, the Court notes the Adjudicator's
findings that it was unlikely that the LTTE would have any interest
in the applicant and unlikely that they could track him down in
Colombo (see paragraph 10 above).
- However,
the Court also observes that the Adjudicator's decision of 27 July
2003 was the last full factual assessment by the domestic authorities
of the applicant's case. As it has noted at paragraph 91 above, the
basis for the applicant's subsequent fresh asylum claim and
successive applications for permission to apply for judicial review
was the deterioration in the security situation in Sri Lanka. As the
Court has found, by the time the applicant's case was listed for an
oral hearing, three of the four High Court judges who had considered
the applicant's claim had formed the view that the situation in Sri
Lanka had deteriorated but that in itself was not sufficient to alter
the decisions of either the Adjudicator or the Secretary of State and
the applicant did not, therefore, renew his application for
permission to apply for judicial review at the oral hearing. In these
circumstances, the Court is called upon to assess the risk to the
applicant without the benefit of a recent and full factual assessment
by the domestic authorities in his case.
- In
respect of the alleged risk to the applicant from the LTTE, the Court
reiterates that it accepts the domestic authorities' assessment that
while there may be a risk to Tamils in Colombo from the LTTE, this
will be only to Tamils with a high profile as opposition activists,
or those seen by the LTTE as renegades or traitors. Like the domestic
authorities, it can discern no such factors in the applicant's case
and is persuaded that, since his encounter with the LTTE took place
ten years ago, if returned to Colombo he would be of little interest
to them. He would therefore not be at real risk of ill-treatment
contrary to Article 3 by the LTTE if returned to Colombo.
- In
assessing the risk to the applicant from the Sri Lankan authorities,
the Court will examine the strength of the applicant's claim to be at
real risk as a result of an accumulation of the risk factors
identified in LP (see paragraphs 30–46 above). However,
it will do so in light of its own observations set out in paragraphs
130–136 above. In particular, the Court underlines first, the
need to have due regard for the deterioration of the security
situation in Sri Lanka and the corresponding increase in general
violence and heightened security; and second, the need to take a
cumulative approach to all possible risk factors identified by the
applicant as applicable to his case.
- In
LP, the AIT considered a previous criminal record and/or
arrest warrant to be a significant factor, albeit with the
qualification that it did not mean, of itself, that the applicant had
a well-founded fear of persecution or other significant harm on
return to Sri Lanka. The Court recalls that the AIT also found that
the issue was to establish the credibility of the criminal record, or
an arrest warrant, and to decide whether it was reasonably likely to
exist in respect of the applicant in the particular case (see
paragraph 34 above). In the Court's view, the present applicant, who
was arrested and detained by the Sri Lankan authorities six times,
photographed and fingerprinted, can rely on this risk factor,
particularly since his claim was found credible on this point. The
applicant did not jump bail or abscond from police custody so as to
engage this separate risk factor identified by the AIT in LP
(see paragraph 35 above) and the Court accepts the AIT's view that
persons who jump bail or abscond are at a higher level of risk of
being identified from police computers at the airport. However, the
applicant's father signed a document to secure his son's release.
Understandably, this document was not available to the parties and so
was not put before the Court. Its precise nature is not known but the
logical inference is that it would have been retained by the Sri
Lanka authorities at the time of the applicant's release. The Court
notes that the Government did not suggest that there was never such a
document, rather they sought to question the weight to be accorded to
it and argued that there was no evidence that this amounted to a
confession and no evidence that it would be used against the
applicant in Sri Lanka. The Court accepts that no firm conclusions
can be drawn as to whether the document amounted to a confession or,
as the AIT also considered in LP, a statement made in Sinhala
which the applicant or his father did not understand. However, in the
Court's view it is not necessary to consider whether such a document
additionally engages the particular risk factor identified by the AIT
as relating to confessions or statements (see paragraph 36 above)
since whatever the nature of that document, at the very least it
amounts to a record of the applicant's detention.
- The
Court also accepts the assessment of the AIT that scarring will have
significance only when there are other factors that will bring the
applicant to the attention of the authorities such as being wanted on
an outstanding arrest warrant or a lack of means of identification
(see paragraph 37 above). However, where there is a sufficient risk
that an applicant will be detained, interrogated and searched, the
presence of scarring, with all the significance that the Sri Lankan
authorities are then likely to attach to it, must be taken as greatly
increasing the cumulative risk of ill-treatment to that applicant.
- The
Court recognises that it has been over ten years since the applicant
was last detained by the Sri Lankan army. However, the Court
considers that the greatest possible caution should be taken when, as
in the applicant's case, it is accepted that a returnee has
previously been detained and a record made of that detention. As the
AIT found in LP (see paragraph 44 above), such a record
may be readily accessible to airport authorities, meaning the person
in question may become of interest to the authorities during his or
her passage through the airport. Where there is a likelihood that
this will result in delay in entering the country, there is clearly a
greater risk of detention and interrogation and with it a greater
risk of ill-treatment contrary to Article 3 (see paragraphs 131–133
above). Equally, in light of its observations at paragraphs 130–136
and 142 above, the Court finds the passage of time cannot be
determinative of the risk to the present applicant without a
corresponding assessment of the current general policies of the Sri
Lankan authorities (see, mutatis mutandis, Saadi v. Italy,
cited above, § 43; the Jabari judgment¸ cited
above, § 41, in fine). Their interest in particular
categories of returnees is likely to change over time in response to
domestic developments and may increase as well as decrease. In the
Court's view, it cannot be excluded that on any given date if there
is an increase in the general situation of violence then the security
situation in Sri Lanka will be such as to require additional security
at the airport. The Court also recalls its finding at paragraphs 134–136
above, notably that computerised records are available to the airport
authorities. Given that it is undisputed that the applicant was
arrested six times between 1990 and 1997, that he was ill-treated in
detention and that it appears a record was made of his detention on
at least one occasion, the Court considers that there is a real risk
that the applicant's record will be available to the authorities at
the airport. Furthermore, it cannot be excluded that on any given
date the security situation in Sri Lanka would be such as to require
additional security at the airport and that, due to his risk profile,
the applicant would be at even greater risk of detention and
interrogation.
- Insofar
as they have been relied on in this case, the Court has also examined
the additional factors in LP: the age, gender and origin of a
returnee, a previous record as a suspected or actual LTTE member,
return from London, having made an asylum claim abroad and having
relatives in the LTTE. It has also noted the relative weight which
the AIT attached to each risk factor (see paragraphs 32, 33, 38, 40
and 41 above). It considers that, where present, these additional
factors contribute to the risk of identification, questioning, search
and detention at the airport and, to a lesser extent, in Colombo. In
respect of having relatives in the LTTE, the Court accepts the
Government's submission that this is of little weight in this case;
few details of the involvement of the applicant's brother in the LTTE
or his present whereabouts have been provided. However, the Court
accepts that the remaining factors are all capable of being relied
upon by the applicant and, on the facts of his case, their cumulative
effect is to increase further the risk to him, which is already
present due to the probable existence of a record of his last arrest
and detention. He is a male Tamil who is thirty-two years of age and
the AIT found there was a higher propensity on the part of the Sri
Lanka authorities to target young men and women from the north and
east in a period of “virtual civil war” (see paragraph 32
above). This must apply a fortiori since the formal end of the
ceasefire (see paragraph 54 above). On the applicant's account, which
was found to be credible by the Adjudicator, his six arrests were on
the basis of suspicion of LTTE involvement, even if he was ultimately
found to have no such involvement. While the Court agrees with the
AIT in LP that in respect of this risk factor it is of “vital
importance” to establish an applicant's profile and the
credibility of his background in some depth (see paragraph 33 above),
it also finds that this was so established in the present applicant's
case and thus significant weight must be given to the Adjudicator's
finding as to his credibility (see paragraph 8 above). Finally, any
return of the applicant to Sri Lanka would be from London or another
United Kingdom airport and clearly he has made an asylum claim
abroad. In respect of the latter risk factor, the Court accepts the
AIT's finding in LP that this would be a “contributing
factor” which would need other, perhaps more compelling factors
before a real risk could be established but it also notes with
concern the AIT's findings that lists of failed asylum seekers could
form part of search operations in Tamil areas of Colombo and that
application forms for replacement passports and travel documents
might alert the Sri Lankan High Commission in London and that
information could be passed on (see paragraph 40 above).
- The
Court has taken note of the current climate of general violence in
Sri Lanka and has considered cumulatively the factors present in the
applicant's case. It also notes its finding at paragraphs 131–133
above that those considered by the authorities to be of interest in
their efforts to combat the LTTE are systematically exposed to
torture and ill-treatment. There is a real risk that the authorities
at Colombo airport would be able to access the records relating to
the applicant's detention and if they did so, when taken cumulatively
with the other risk factors he has relied upon, it is likely the
applicant would be detained and strip-searched. This in turn would
lead to the discovery of his scars. On this basis, the Court finds
that these are substantial grounds for finding that the applicant
would be of interest to the Sri Lankan authorities in their efforts
to combat the LTTE. In those circumstances, the Court finds that at
the present time there would be a violation of Article 3 if the
applicant were to be returned.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant expressly made no claim in respect of pecuniary and
non-pecuniary damage and the Government similarly made no
observations under this head.
B. Costs and expenses
- The
applicant claimed a total of GBP 3,510 in legal costs and expenses
incurred before the Court, which is approximately EUR 4,451. This
claim comprised the costs and expenses of two solicitors in the
amount of GBP 770 and GBP 2740 for eleven and sixty-eight and a half
hours' work respectively.
- The
Government made no submissions under this head.
- The
Court considers that the amount claimed is not excessive in light of
the nature of the dispute, particularly given the complexity of the
case. It therefore considers that the applicant's costs and expenses
should be met in full and thus awards him EUR 4,451, inclusive of
VAT, less EUR 850 already received in legal aid from the Council
of Europe.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that the applicant's expulsion to Sri
Lanka would be in violation of Article 3 of the Convention;
- Holds that no separate issue arises under
Article 2 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 4,451 (four
thousand four hundred and fifty-one euros), plus any tax that may be
chargeable, in respect of costs and expenses, to be converted into
pounds sterling at the rate applicable at the date of settlement,
less EUR 850 (eight hundred and fifty euros);
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points.
Done in English, and notified in writing on 17 July 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Lech Garlicki
Registrar President
