(Application no. 25904/07)
17 July 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,
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:
I. THE CIRCUMSTANCES OF THE CASE
A. The applicant's domestic proceedings
“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.”
“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.”
“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.”
B. Subsequent cases brought by Tamils being returned to Sri Lanka
“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.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Immigration and asylum: primary and secondary legislation
“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.”
B. The Human Rights Act 1998
C. Judicial review
D. Country guidance determinations of the Asylum and Immigration Tribunal and former Immigration Appeal Tribunal
“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  UKAIT 00076
“(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.”
“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.”
“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.”
“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.”
“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.”
“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.”
“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.”
2. PS (LTTE – Internal Flight – Sufficiency of Protection) Sri Lanka CG  UKIAT 0297
“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  UKAIT 00076
“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  AC 489
F. R. v. the Secretary of State for the Home Department, Ex parte five Sri Lankan Tamils  EWHC 3288 (Admin)
“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
IV. RELEVANT INFORMATION ABOUT SRI LANKA
A. United Kingdom Government reports
1. Operational Guidance Notes
“[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.”
2. Letters from the British High Commission in Colombo
“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.”
“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  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.”
“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  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.”
“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.”
B. United Nations reports
1. UNHCR Position on the International Protection Needs of Asylum Seekers from Sri Lanka (“the UNHCR Position Paper”)
“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).”
2. The United Nations High Commissioner for Human Rights
“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
“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
“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.”
“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.”
D. The Immigration and Refugee Board of Canada
“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
2. Amnesty International
3. Human Rights Watch
a. Return to War: Human Rights Under Siege
b. Recurring Nightmare: State Responsibility for Disappearances and Abductions in Sri Lanka
4. The International Crisis Group
“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).”
5. Medical Foundation for the Care of Victims of Torture
F. Other relevant sources
1. The British Broadcasting Corporation
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.
I. THE GOVERNMENT'S PRELIMINARY OBJECTION AND ADMISSIBILITY
A. The parties' observations
B. The Court's assessment
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.
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. The parties' submissions
1. The applicant
2. The Government
B. The Court's assessment
1. General principles
2. The assessment of objective information
3. Assessing the risk to Tamils returning to Sri Lanka
“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.”
4. The applicant's case
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(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.