26 November 2010

FOURTH SECTION
Application no. 61533/10
by H.A.L.
against the United Kingdom
lodged on 22 October 2010

STATEMENT OF FACTS
THE FACTS
The applicant, Mr H.A.L., is a Sri Lankan national. He is a Muslim of Tamil ethnicity and he was born in 1980. He is currently detained at Harmondsworth Immigration Removal Centre.
A.  The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1.  Introduction
During Sri Lanka’s recent civil war, the main fighting occurred between Government forces and the Liberation Tigers of Tamil Eelam (the LTTE or “Tamil Tigers”). In 2004, a paramilitary group broke away from the LTTE; this became known as the “Karuna group” from the name of its leader V. Muralitharan (alias “Colonel Karuna”). The political wing of this group was called the Tamil Eelam Peoples Liberation Tigers (TamilEela Makkal Viduthalai Pulikal: TVMP). A further breakaway group was formed by Muralitharan’s former deputy, Sivanesathurai Chandrakanthan, also known as Pillayan: “the Pillayan group” (see United Kingdom Border Agency Country of Origin Information Service report on Sri Lanka of 18 February 2010 at annex C, p. 213).
2.  The applicant’s asylum claim
The applicant arrived in the United Kingdom on 19 May 2008. He initially claimed to be visiting his brother but, when pressed, did not know his brother’s address or phone number. When questioned further, he claimed asylum. He claimed to have formed a political party called the People’s Democratic Front and to have stood as an independent candidate in the 2008 provincial elections in Akarrapaittu, Ampara District, in eastern Sri Lanka. In early 2008, he announced he would publish a book giving details of human rights abuses of Muslims in the district. He claimed that, on 30 March 2008, he was beaten up by five unidentified men who warned him not to publish the book. He was later given a similar warning by telephone by the LTTE. On 20 April 2008, at a branch meeting of the party, the applicant was attacked by an armed group who warned him to withdraw from the election or he would be killed. He attempted to report this incident to the police. On 30 April 2008, another group of armed men visited the party’s office and made similar threats. The applicant believed these men belonged to the Pillayan group. A further attack took place on 5 May 2008 when two candidates from the applicant’s party were attacked whilst putting up posters. That day the applicant travelled to Colombo and, the following day, he attended an anti-TMVP demonstration at which he was interviewed by the BBC Tamil Network. He telephoned his home town and was told that, as a result of the interview, the Government and the Pillayan group were looking for him. He was warned not to return home. He nonetheless did so on 10 May 2008, the date of the elections. His home was then visited by armed men. Although he was not there at the time, his parents were given another warning. The applicant travelled to Irrakamam (also in Ampara District) and then Colombo. He fled to the United Kingdom via Kuwait.
His asylum claim was refused by the Secretary of State on 5 June 2008. It was found not to be credible that, in his asylum interview, the applicant had failed to remember the full name of the man with whom he had founded the People’s Democratic Front or the name of two other party candidates. He had failed to show whether the armed groups who had threatened him were affiliated to a political party and it was speculative to consider that they were Government forces. There were inconsistencies between the applicant’s account and the transcript of the interview with the BBC. For instance, he had claimed to have spoken about removing arms from the Pillayan group and made comments about fair elections, neither of which were in the transcript. This indicated he had fabricated his account that he was of interest to the Pillayan group and the Government. He had also failed to mention in the transcript who had assaulted the party’s candidates and thus there was no evidence that he had accused the Pillayan group or the Government of being responsible for the attacks. He had also referred to himself in the broadcast as “a candidate of the Independent Group Fifteen” yet stated in his asylum interview that he belonged to the People’s Democratic Front. It was also incredible that he would have returned home after the broadcast and, despite his fear of the Government, he had left Sri Lanka on his own passport without any difficulties. He had, by his own admission, never been harmed by the Government or the Pillayan group and had no further problems with the LTTE despite having published his book. Finally, the Secretary of State considered that the documents produced by the applicant in support of his claim, including an election card and poster, and a recording and transcript of the BBC interview, did not assist him in any material way. The recording had not been independently corroborated and the transcript was incomplete.
The applicant appealed against the Secretary of State’s refusal. His appeal was dismissed by the then Asylum and Immigration Tribunal on 25 July 2008. It was accepted he had published the book as he had claimed and that this would have brought him to the attention of the LTTE and the TMVP. It was accepted that elections took place in eastern Sri Lanka on 10 May 2008 and they had been marred by violence by paramilitary groups, including the TMVP. It was surprising that the applicant had been unable to recall basic information as to his fellow candidates but it was accepted that the applicant had stood in those elections and the claims of harassment and attacks of the applicant and his party were consistent with the background evidence. The applicant’s assumption that the armed men were part of the Pillayan group was entirely reasonable in the circumstances and it was credible that the TMVP would have shown an interest in a rival party. The Tribunal was also satisfied that the applicant had given an interview at an anti-TMVP demonstration in Colombo but it was not clear what he had said. It was further accepted that the applicant had been forced to flee as a result of the threats which had been made and the interview he had given. He would therefore be at risk in his home area. However, having considered this Court’s judgment in NA. v. the United Kingdom, no. 25904/07, 17 July 2008, Tribunal concluded that the applicant would be safe in Colombo where the TMVP were not active. There was insufficient evidence that he would be wanted by the Sri Lankan authorities rather than the TMVP; there was little evidence of harassment of opposition groups by the Government as shown by the fact that the demonstration at which the interview had been given had passed off relatively peacefully. The applicant was not on a wanted list nor was there any outstanding arrest warrant. He would be questioned at Colombo airport on return but not detained or ill-treated.
An application for reconsideration of the determination was refused by a senior immigration judge on 22 August 2008, who found that, on the evidence before it, the Tribunal had been entitled to find as it did.
3.  The asylum claim of the applicant’s brother
The applicant’s brother arrived in the United Kingdom on 28 August 2007 with a student visa which was valid until 30 September 2010. He claimed asylum in the United Kingdom in early 2010 on the basis that he was suspected of assisting the LTTE by providing a vehicle to transport weapons. He stated that he had previously earned a living in Sri Lanka by hiring two vehicles but had decided to study in the United Kingdom and had handed his vehicles and business interests to a family friend. He had no problems prior to leaving Sri Lanka but, in January 2010 his parents had telephoned to say that the police had come looking for him. The police had shown his parents an arrest warrant and told them that the family friend had been arrested while carrying weapons. The Secretary of State refused the asylum claim inter alia because the brother had initially said that the family friend had been arrested because he had been carrying election propaganda but later said that it was because he had been carrying weapons.
The brother appealed to the First-tier Tribunal (Immigration and Asylum Chamber) (formerly the Asylum and Immigration Tribunal) and produced a series of documents in support of his claim, including a letter from a Sri Lanka lawyer to the applicant’s father and a copy of the arrest warrant with an English translation. Although the Secretary of State did not accept the authenticity of the documents (arguing that forgeries were easily obtainable in Sri Lanka and that it was difficult to obtain a copy of one’s own arrest warrant), attempts to verify their authenticity had not been successful.
On 9 August 2010, the Tribunal allowed brother’s appeal. Although it had not been explained how the arrest warrant came into the possession of the family, the Secretary of State had not undertaken checks, had not appeared before the Tribunal and had not stated that the documents were forgeries. The arrest warrant was corroborated by the rest of the documents submitted by the brother, it was accepted it had been issued and further accepted that the police had visited the family home. Given the significance of an arrest warrant as a risk factor, the Tribunal concluded that there would be a real risk of ill-treatment on return.
4.  The applicant’s judicial review applications
The applicant made further representations to the Secretary of State on 2 December 2008 and submitted further objective information in support of his asylum claim, which showed that opponents of the TMVP were at risk and that a number of Muslim Tamils had been murdered. It appears that these representations had not been considered before removal directions were set for the applicant’s removal to Sri Lanka on 10 September 2010. Therefore, on 9 September 2010, the applicant lodged an emergency application for judicial review, arguing that the Secretary of State’s decision to remove him while there were outstanding representations was unlawful. It appears that the removal directions were then cancelled. The judicial review application was refused by the High Court on 1 October 2010. It was found that there was nothing in the judicial application to impugn the Secretary of State’s initial decision to refuse asylum or the decision of the Asylum and Immigration Tribunal.
When removal directions were then set for the applicant’s removal to Sri Lanka on 18 October 2010, the applicant made a second emergency application for judicial review to the High Court. He relied on new evidence that he was of continuing interest to the Sri Lankan authorities, including a witness statement from his mother and a letter from a Sri Lankan lawyer which appended English translations of an arrest warrant for the applicant and a court summons containing the names of the applicant, his brother and a third man. The summons stated that the men were sought for the offences of having connections to terrorists and having aided and abetted terrorists. In her statement, the applicant’s mother said that two police officers visited the family home on 13 September 2010 and told her that the applicant was being sought for suspicious activities on behalf of the LTTE and against the TMVP. She was shown a document which stated that the police had an arrest warrant to this effect. In his letter of 15 October 2010 to the applicant’s British representatives, the Sri Lankan lawyer stated that he had contacted the Registrar of the Akkaraipattu Magistrates’ Court who stated that the arrest warrant had been issued on 6 July 2010.
On 16 October 2010, the Secretary of State wrote to the applicant stating that the grounds which he relied on in the second judicial review application could reasonably have been raised in the previous judicial review application and she was not prepared to defer his removal unless a High Court injunction was obtained.
The second application for judicial review was refused on 18 October 2010. The High Court found:
“The asylum claim before the Immigration Judge in mid 2008, and upheld, was a fear of persecution from the TMVP. Then as late as 9 September 2010 the judicial review was based on what was said to be a fresh claim ‘that as an opponent of the TMVP he would at risk [sic]’... Now it is said that his fear is from the authorities, because there is an arrest warrant out for him and a statement from his mother that the police have been looking for him. Having given the matter close attention I am afraid I regard this simply as a last ditch attempt to prevent removal. It has no prospect of success.”
The same day, the Court of Appeal refused permission to appeal, a single judge of that court stating that he was not persuaded that there was a realistic prospect of a successful appeal against the refusal of interim relief. The applicant has since informed this Court that the Tribunal determination in respect of the applicant’s brother was not placed before the High Court or Court of Appeal.
The Government proceeded with applicant’s removal from Heathrow airport on 18 October but he was removed from the aircraft when he claimed to be experiencing chest pains. Removal directions were reset for 23 October 2010.
On 22 October 2010 the applicant lodged an application with this Court and the same day the President of the Chamber to which the application was allocated decided to apply Rule 39 of the Rules of Court and to indicate to the Government of the United Kingdom that the applicant should not be removed to Sri Lanka until 5 November 2010 to enable further consideration of the application.
On 27 October 2010, the applicant was requested to submit further information to the Court, including a copy of the Tribunal determination in respect of his brother. This was sent by post the same day. On 4 November 2010, the Agent of the Government of the United Kingdom informed the Court that removal directions had been set for 10 November 2010. He further informed the Court that, while the applicant’s brother had been granted asylum, this had no bearing on the consideration of the applicant’s case, which had been carefully considered on its own merits.
B.  Relevant domestic law and practice
1.  Country guidance determinations in respect of Tamils returning to Sri Lanka
The Asylum and Immigration Tribunal’s determination in LP (LTTE area – Tamils – Colombo – risk?) Sri Lanka CG [2007] UKAIT 00076 was considered by this Court in NA., cited above, §§ 30–46. The headnote to the determination provided:
“(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...”
LP was reconsidered by the Tribunal in the light of NA. in TK (Tamils – LP updated) Sri Lanka CG [2009] UKAIT 00049. The Tribunal’s conclusions were summarised in the headnote to the determination which, where relevant provides:
“a)  The risk categories identified in LP (LTTE area – Tamils - Colombo – risk?) Sri Lanka CG [2007] UKAIT 00076 and approved by the European Court of Human Rights (ECtHR) in NA v UK, App.no. 25904/07, remain valid.
b)  Events since the military defeat of the LTTE in May 2009 have not aggravated the likely approach of the Sri Lankan authorities to returned failed asylum seekers who are Tamils; if anything the level of interest in them has decreased. The principal focus of the authorities continues to be, not Tamils from the north (or east) as such, but persons considered to be either LTTE members, fighters or operatives or persons who have played an active role in the international procurement network responsible for financing the LTTE and ensuring it was supplied with arms.
c)  The records the Sri Lanka authorities keep on persons with some history of arrest and detention have become increasingly sophisticated; their greater accuracy is likely to reduce substantially the risk that a person of no real interest to the authorities would be arrested or detained.”
2.  Fresh asylum and human rights claims
Section 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 provides as follows:
“When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules 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.”
As regards the scrutiny of fresh asylum claims and the power of the courts to review such scrutiny, the Court of Appeal in WM (DRC) v. Secretary of State for the Home Department [2006] EWCA Civ 1495 (paragraphs 10-11) has held:
“Accordingly, a court when reviewing a decision of the Secretary of State as to whether a fresh claim exists must address the following matters. First, has the Secretary of State asked himself the correct question? The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return ... The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting-point for that enquiry; but it is only a starting point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind. Second, in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts, has the Secretary of State satisfied the requirement of anxious scrutiny? If the court cannot be satisfied that the answer to both of those questions is in the affirmative it will have to grant an application for review of the Secretary of State’s decision.”
Thus, an applicant making fresh representations must establish that they have a realistic prospect of success to establish a “fresh claim” which, even if then refused by the Secretary of State, will nonetheless generate a fresh right of appeal to be considered on the merits.
COMPLAINT
The applicant complains under Article 3 of the Convention that he is at real risk of ill-treatment if removed to Sri Lanka.
QUESTION TO THE PARTIES
Having particular regard to the statement provided by the applicant’s mother, the arrest warrants submitted by a Sri Lankan lawyer and the decision to grant the applicant’s brother asylum in the United Kingdom, would the applicant’s removal to Sri Lanka be in violation of Article 3 of the Convention?

The Government are also requested to clarify whether the arrest warrant submitted to the Court by the applicant, which contains the names of the applicant and his brother, is the same as the arrest warrant considered by the First-tier Tribunal (Immigration and Asylum Chamber) when it allowed the appeal of the applicant’s brother.