12 July 2007
FOURTH SECTION
Application no.
25904/07
by NA
against the United Kingdom
lodged on 21 June
2007
STATEMENT OF FACTS
THE FACTS
The applicant, NA, is a Sri-Lankan national who is currently detained in Colnbrook Immigration Removal Centre.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant entered the United Kingdom clandestinely in 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 LTTE (Liberation Tigers of Tamil Eelam). He explained that he had been arrested and detained by the army on 6 occasions between 1990 and 1997 on suspicion of involvement with the LTTE. While he was in detention he had been ill-treated and he is scarred from having been beaten with batons. 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 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 was arrested by the army on some six occasions between 1990 and 1997 on suspicion of his involvement with the LTTE, on each occasion he was released without charge and during the time he spent in detention he was ill-treated. During the 1997 detention he was photographed and his prints were taken and his father signed certain papers in order to get him released. 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 applicant's fear of ill-treatment by the army upon his return was found 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, 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 was held for short periods and released without charge on each occasion. There was no record of his ever having been involved with the LTTE or that he was ever wanted. 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 other expressed fear of the LTTE, it was found that it was unlikely that the LTTE would still have any interest in him 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, 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 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 7 and a half years suggested that he would hardly be of any interest to the Sri Lankan authorities.
His application for permission to seek judicial review was refused on 23 May 2006 on the papers and was again refused at an oral hearing on 18 August 2006. He was issued with removal directions for 10 January 2007 when he made further representations to the Secretary of State and another application to the High Court seeking permission to lodge judicial review proceedings. It appears that the Secretary of State considered his further representations and, in a letter of 10 January 2007, refused to treat them as a fresh claim.
On 15 January 2007 the High Court ordered that the applicant be not removed from the United Kingdom pending the examination of his application for judicial review: it was sufficiently arguable that the further deterioration in the situation in Sri Lanka could justify a fresh asylum claim.
On 14 February 2007 the High Court refused his application for permission to seek judicial review. It was considered that the grounds in the applicant's claim form were directed at challenging the alleged failure of the Secretary of State to consider and determine his new representations. Since the Secretary of State had in fact considered them and refused to treat them as a new claim, the applicant's proposed judicial review application could be rejected. In addition, it was noted that the applicant had sought to advance a more fundamental challenge to the removal directions on the basis that the situation in Sri Lanka had deteriorated since the matter was last considered and had reached a point where the applicant would be at risk on return. Whilst the UNHCR report of 2006 was “noted with anxiety”, given the reasoning of the adjudicator rejecting the applicant's appeal, namely that he would not be of interest to the authorities, the report was not sufficient to justify granting leave to apply for judicial review of the decision of 10 January 2007.
The Secretary of State issued the applicant with removal directions to Sri Lanka, for 25 June 2007 at 17.00 hrs. On that date the President of the Chamber to which this application was allocated 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.
B. Relevant Background Information
The UNHCR Position on the International Protection Needs of asylum seekers from Sri Lanka of December 2006 states (at paragraphs 14 and 15):
“In addition to the situation of widespread insecurity and the impact of the armed conflict in the North and the East, Tamils in and from these regions are at risk of targeted violations of their human rights from all parties to the armed conflict. Harassment, intimidation, arrest, detention, torture, abduction and killing at the hands of government forces, the LTTE and paramilitary or armed groups are frequently reported to be inflicted on Tamils from the North and East. Individuals suspected of having LTTE affiliations are at risk of human rights abuses by the authorities or allegedly government sponsored paramilitary groups. In the same manner, those who refuse to support the LTTE and those who are perceived as supporters or sympathisers of the Government, risk serious violations of human rights from the LTTE.”
The Amnesty International Annual Report for 2007 states that:
“The human rights situation in Sri Lanka deteriorated dramatically. Unlawful killings, recruitment of child soldiers, abductions, enforced disappearances and other human rights violations and war crimes increased. Civilians were attacked by both sides as fighting escalated between the government and the Liberation Tigers of Tamil Eelam (LTTE)....Although the government and LTTE met in February to discuss implementation of the ceasefire agreement, a further meeting scheduled for April did not take place. Further talks in October ended in disagreement...”
COMPLAINTS
The applicant complains under Articles 2 and 3 of the Convention that he would be ill-treated if returned to Sri Lanka.
QUESTIONS TO THE PARTIES
1. The Government are requested to submit a complete copy of the letters of the Secretary of State dated 30 October 2002 and 10 January 2007 refusing the applicant's asylum claim and further representations.
2. (i) Would the applicant's return to Sri Lanka put him at risk of a breach of Articles 2 and/or 3 of the Convention having regard, in particular, to recent developments in that country and to his suspected involvement with the LTTE?
(ii) Moreover, did the domestic authorities examining the applicant's further representations to the Secretary of State of 10 January 2007 take adequate account of the deterioration of the security situation in Sri Lanka?