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Cite as: [2009] ECHR 1392

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10 September 2009

FOURTH SECTION

Application no. 34274/08

by S.S.

against the United Kingdom

lodged on 22 July 2008

AND

Application no. 42923/08

by S.L.

against the United Kingdom

lodged 9 September 2008

STATEMENT OF FACTS

THE FACTS

The present applicants are Sri Lankan nationals of Tamil ethnicity. The first applicant, Mr S.S., was born in 1973 and lives in Milton Keynes. He is represented before the Court by Satha & Co., a firm of solicitors practising in London. The second applicant, Ms S.L., was born in 1970 and lives in Clapham. She is represented before the Court by Birnberg Peirce & Partners, a firm of solicitors practising in London.

A. The circumstances of each case

The facts of each case, as submitted by the applicants, may be summarised as follows.

1. The first applicant

The first applicant arrived in the United Kingdom on 3 December 2000 and claimed asylum upon arrival. The basis of his claim was that he was a cousin of the first ever suicide bomber for the Liberation Tigers of Tamil Eelam (LTTE). The cousin carried out his attack in 1987, and the first applicant himself had been involved in transporting goods for the LTTE, under duress. On six separate occasions he had been arrested and detained on suspicion of involvement with the LTTE. On one of these occasions, he was arrested having been found in possession of LTTE explosives, which he had been unaware that he was carrying. Due to his history of arrest and detention, he feared the Sri Lankan authorities; he also feared the LTTE because, during one period of detention, he was taken by the authorities to try to identify LTTE members.

The first applicant’s asylum claim was refused on 13 February 2004. The Secretary of State found that even if his account were true – and no express credibility findings were made – in the light of the ceasefire prevailing since February 2002 in Sri Lanka between the LTTE and the government, the first applicant would not be of any interest to either party if returned. The fact that he had been released after each period of detention, even upon payment of a bribe, indicated that he was not of ongoing interest to the authorities. The fact that he had signed a document written in Sinhalese, which may or may not have been a confession, would not put him at risk, because such a document could be easily challenged by his defence counsel, should the need arise.

The first applicant appealed against this refusal, and his appeal was dismissed by an Adjudicator on 3 June 2004. Upon application for permission to appeal against the Adjudicator’s decision, the Asylum and Immigration Tribunal remitted the case for re-hearing by a different Adjudicator. The first applicant’s appeal was therefore re-heard on 24 February 2005.

The second Adjudicator found that the first applicant was a credible witness and that his account of being related to the first ever Tamil Tiger suicide bomber, being forced by the LTTE to deliver explosives for them, and being arrested, detained and ill-treated on numerous occasions by the Sri Lankan authorities, once as a result of being caught with explosives, was truthful. Nonetheless, it was found that the first applicant’s circumstances were not exceptional and, in the light of the continued ceasefire and the improved human rights situation in Sri Lanka, the authorities would have no interest in him if he were to be returned. It was not thought to be likely that there would be a record of his previous periods of detention, or that he would have been released on bribes so many times if he were of real interest to the authorities. It was not accepted that he had good reason to fear the LTTE, but in any event, he could relocate to Colombo in order to avoid them.

The first applicant’s application for judicial review of this decision was refused by the High Court on 18 April 2005. He made further representations to the Secretary of State on 1 March 2006, based on the deteriorated situation in Sri Lanka. He also argued that the fact that the he was suffering from back pain and from viral warts, which had left patches of altered pigmentation on his face, and was thus likely to bring him to the attention of the authorities. These representations were rejected as not amounting to a fresh asylum claim on 27 July 2007. The Secretary of State did not consider that the changed country situation would affect the applicant specifically, or that his health problems would engage Article 3. There was adequate healthcare available in Sri Lanka.

The first applicant again made further representations on 29 July 2007, claiming that the ceasefire in Sri Lanka had broken down irrevocably in July 2007. These were again rejected as not amounting to a fresh claim on 15 October 2007. The Secretary of State considered that the first applicant had not demonstrated that the deterioration in Sri Lanka would specifically affect him, or that he would be of adverse interest to the authorities as a result of it, given the Adjudicator’s previous findings that he would not be of any particular interest. The scarring resulting from the first applicant’s skin condition, raised in his representations of 1 March 2006, was considered but found not to add anything to his claim, since he had not provided explicit medical evidence. In any event, it was considered unlikely that his scarring would bring him to the attention of the authorities as a person who had previously been detained, as it would not be consistent with the scarring of a person who had been ill-treated in custody. The applicant’s case was considered in the light of the country guidance determination of the Asylum and Immigration Tribunal (AIT) in LP (LTTE Area - Tamils - Colombo - Risk?) Sri Lanka CG [2007] UKAIT 00076: see NA. v. the United Kingdom, no. 25904/07, §§ 30-46, 17 July 2008. However, he was not considered to possess sufficient risk factors to preclude his removal, since he had been released on a bribe after each arrest, which indicated that he was not of interest to the authorities either because of his record as a suspected LTTE member or because of his notorious cousin; his scarring resulted from a medical condition and not from ill-treatment in custody; and the other factors which applied to him, such as Tamil ethnicity and return from London were background factors which, alone, would not put him at risk.

The first applicant sought judicial review of the decision not to treat his further representations as a fresh asylum claim. Permission to apply for judicial review was refused on the papers on 29 January 2008: the High Court judge hearing the case stated that: “as the applicant was, as the Adjudicator found, of no interest to the authorities in 2000, the generalised fresh material and changes in Sri Lanka would not create any prospect of success before an Immigration Judge.” Permission to apply for judicial review was again refused following an oral hearing on 16 May 2008.

The Secretary of State issued the first applicant with removal directions to Sri Lanka for 14 January 2009. On 13 January 2009, the first applicant lodged an application before this Court and requested an interim measure to prevent his expulsion. On 14 January 2009, 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.

2. The second applicant

The second applicant claimed to fear the Sri Lankan authorities because of events that had occurred prior to her arrival in the United Kingdom. Her brother had allegedly been a member of the LTTE for many years and her family was persecuted as a result of this involvement, causing them to leave Sri Lanka in 1987 for Tamil Nadu, India, where they lived in a refugee camp. In 1998, the second applicant married a man who was in prison on suspicion of LTTE involvement. He was released in 2003 and deported to Sri Lanka, from where he left for the United Kingdom in 2004. The second applicant alleged that in 2007 she was repeatedly questioned and accused of spying by the Indian authorities. She was threatened with prison unless she told the truth. In fear, she left India in May 2007 and returned to Sri Lanka for the first time in seventeen years. She spent five days living with her aunt in Trincomalee before being contacted, first by the Karuna faction, a breakaway group of the LTTE, and then by the Sri Lankan authorities, and interrogated by both as to the whereabouts of her brother, whom the second applicant has not seen since 1990. In December 2007, the second applicant was arrested by the army and detained for five days, during which time she was beaten and raped. She was released from custody on the condition that she signed on at the army camp on a twice daily basis. The army retained her identity documents. However, she left for Colombo on 25 December 2007. From Colombo, her uncle arranged for her to travel to the United Kingdom.

The second applicant arrived in the United Kingdom from Sri Lanka on 4 January 2008, and claimed asylum on 7 January 2008. Her asylum claim was refused on 8 February 2008. The Secretary of State found many aspects of the second applicant’s account to be incredible. It was considered implausible that she had come to the attention of the Sri Lankan authorities only five days after her return to the country, following her absence of seventeen years. She had not provided any evidence to show that she had been in Sri Lanka in 2007. It was not credible that the second applicant would have willingly returned from to Sri Lanka from India, where she admitted she had not been ill-treated in any way, given the alleged risk to her on account of her brother’s and her husband’s involvement with the LTTE. It was noted that the second applicant’s husband had made an unsuccessful claim for asylum in the United Kingdom in 2003. It was therefore concluded that the second applicant’s motives in coming to the United Kingdom had been to join her husband and try to secure leave for them both to remain by claiming asylum herself.

The second applicant appealed against the decision to refuse her asylum, and was heard by the AIT on 19 March 2008. The Immigration Judge who heard the appeal conceded that, if the second applicant’s claim were true, she would possess sufficient risk factors to indicate a real risk upon return to Sri Lanka. However, he disbelieved her account. Her whole claim had seemingly been based on her brother’s involvement with the LTTE, but she had produced no evidence to prove his membership or status. It was not considered to be credible that she would have been targeted by the authorities solely on the basis of the LTTE membership of a brother whom she had not seen for twenty years. The Immigration Judge found it strange that the second applicant had not sought to rely instead on her husband’s history of persecution and imprisonment. It was also strange that he had not been present at the appeal hearing to support her, despite still being present in the United Kingdom. It was not believable that the second applicant, having suffered no ill-treatment in India, would return voluntarily to Sri Lanka. She had given no credible explanation of why she did not have an up-to-date identification card if she had been in Sri Lanka in 2007, and there was no evidence to show that she did indeed return there before travelling to the United Kingdom. He also found discrepancies in the accounts the second applicant had given at different times, and as a result of these discrepancies and the aforementioned implausibility, rejected her entire account.

The second applicant sought reconsideration of the AIT decision, but it is alleged by her current representatives that her previous representatives submitted the application out of time and without grounds in support. The application was refused by the High Court on 23 April 2008.

The second applicant submitted further representations supported by an expert report on 24 October 2008, but these were rejected on 27 October 2008. She then sought judicial review of the decision not to treat her further representations as a fresh asylum claim. Her application was refused on the papers by the High Court on 18 November 2008, on the basis that there were no arguable grounds for challenging the Secretary of State’s decision. On 26 November 2008, she instructed her current representatives, who renewed the application for judicial review. They also submitted further representations to the Secretary of State on 1 and 2 December 2008, supplemented by additional evidence in the form of: i) a letter from an Indian lawyer with whom the second applicant had had contact prior to her departure from India, and who confirmed the second applicant’s account of repeated questioning and threats by the Indian authorities, causing her to leave the country; ii) a witness statement of an acquaintance of the second applicant’s brother, confirming his senior rank in the LTTE; and iii) statements by the second applicant’s husband and a third party, confirming that the second applicant and her husband were in a subsisting relationship.

These representations were rejected on 3 December 2008. The Secretary of State considered that they almost entirely repeated the second applicant’s previous further representations and, in the light of the adverse credibility findings reached by the Immigration Judge, added little to her claim. The documents submitted were found to be self-serving and did not cast doubt on the Immigration Judge’s findings.

The asylum claim of the second applicant’s husband proceeded entirely separately from that of the second applicant. The second applicant’s husband was found to be credible by the then Immigration Appeal Tribunal, which heard his asylum appeal on 24 April 2006. It was accepted that he had fought with the LTTE between 1985 and 1991, and had been tried and imprisoned in India for LTTE activities. It was also accepted that his trial had been widely reported upon in the Indian press, and that the Sri Lankan authorities were fully aware of his activities. He had been removed by the Indian authorities to Sri Lanka, where he had been detained and ill-treated. Nonetheless, his appeal was dismissed because it was considered that, in light of the ceasefire then in place in Sri Lanka, his case was not exceptional enough to conclude that he would be at risk if returned. He was granted permission to appeal to the Court of Appeal on 11 July 2006; however, he alleges that his previous representatives negligently failed to lodge his notice of appeal. In support of his wife’s application to this Court, he alleges that he attended the second applicant’s appeal hearing but that her representatives did not call him to give evidence on her behalf. Both the second applicant and her husband have submitted complaints against their respective former representatives.

The Secretary of State issued the second applicant with removal directions to Sri Lanka for 10 September 2008. On 9 September 2008, she lodged an application before this Court and requested an interim measure to prevent her expulsion. This application was refused on 10 September 2008; however, on 5 December 2008 following a renewed application by the second applicant’s new representatives, 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 second applicant should not be expelled until further notice.

B. Relevant domestic law and practice

The relevant domestic law and practice are set out in NA., cited above, §§ 23–50.

In addition, on 10 June 2008 the Asylum and Immigration Tribunal promulgated a country guidance determination in AN & SS (Tamils – Colombo – risk?) Sri Lanka CG [2008] UKAIT 00063. The headnote to the determination, where relevant, provides as follows:

“Since the breakdown of the ceasefire, heightened security in the capital has restricted the operations there of the LTTE, who are focusing on ‘high-profile’ targets. The background evidence does not show that Tamils in Colombo who have stopped supporting the Tigers, or who support parties opposed to them, are at real risk of reprisals, absent some feature bringing them to prominence. The conclusion to that effect in PS (LTTE – internal flight – sufficiency of protection) Sri Lanka CG [2004] UKIAT 297, which this determination updates and supersedes, is thus affirmed.

There is no good evidence that the LTTE maintain a computerized database of their opponents, such that new arrivals in Colombo can be checked against it. Checks are, on the other hand, run on a computerized database by immigration officers when passengers arrive at Bandaranaike International Airport, or by members of the security forces when people are detained, but there is no good evidence to show that everyone who has in the past been detained and questioned about possible involvement with the LTTE is on that database. On the contrary, it is likely to contain the names only of those who are of serious interest to the authorities.

The twelve ‘risk factors’ listed in LP (LTTE area – Tamils – Colombo – risk?) Sri Lanka CG [2007] UKAIT 76 can usefully be divided into risk factors per se, one or more of which are likely to make a person of adverse interest to the authorities, and ‘background factors’, which neither singly nor in combination are likely to create a real risk, but which in conjunction with risk factors per se will intensify the risk.

A failed asylum seeker who hails from the north or east of Sri Lanka and who has no relatives or friends to turn to in Colombo will generally be able to relocate there in safety and without undue harshness. Those arriving without their National Identity Card should be able to get a replacement without too much difficulty, while the great majority of those detained at checkpoints and in cordon-and-search operations are released within a short time.”

C. Relevant information about Sri Lanka since NA.

Fighting between the Sri Lankan army and the LTTE intensified in 2009, with the army taking a number of rebel strongholds in the north and east of the country. A press release dated 23 April 2009 and released on behalf of the United Nations Humanitarian Coordinator in Sri Lanka stated that 170,000 civilians were believed to have escaped the combat zone since January 2009, though, at that time, tens of thousands of people remained trapped. On 10 February 2009, the United Nations High Commissioner for Refugees said hundreds of civilians had been killed in the fighting.

On 19 May 2009, in an address to the country’s parliament, the President of Sri Lanka announced the end of hostilities and the death of the leader of the LTTE, Velupillai Prabhakaran. The previous day, the United Nations Office for the Coordination of Humanitarian Affairs estimated that around 220,000 people had already reached internally displaced persons camps, including 20,000 in the last two or three days. In addition, it was believed that another 40,000-60,000 people were on their way to the camps through the crossing point at Omanthai, in the northern district of Vavuniya.

1. The treatment of Tamils in Colombo

United Kingdom Border Agency Country of Origin Information Report on Sri Lanka of 18 February 2009 (“the February 2009 COI Report”) quotes the website Tamilnet as reporting that on 16 February 2009 more than one hundred civilians (mainly Tamils and residents of the north-east) had been arrested in ‘cordon and search’ operations conducted by the police and the army in the suburbs of Colombo, acting upon information that ten hard-core cadres of the LTTE had entered the city to launch attacks on civilians and political targets.

In its World Report 2009, published on 14 January 2009, Human Rights Watch observed that in respect of Sri Lanka:

“The government’s state of emergency continued in 2008, with increasing numbers of arrests and detentions taking place under emergency regulations and the Prevention of Terrorism Act (PTA). ... Emergency regulations provide broad powers to the security forces to investigate, arrest, and detain people in the name of "national security." The government uses the regulations to arrest and detain political opponents, journalists, human rights defenders, and members of the Tamil minority community.”

In its 2009 Country Report on Human Rights Practices – Sri Lanka, dated 25 February 2009, the United States State Department observed (as it had in its report of the previous year) that, in 2009, the overwhelming majority of victims of human rights violations, such as killings and disappearances, were young male Tamils, while Tamils were only 16 percent of the overall population.

2. The treatment of returned failed asylum seekers

The February 2009 COI Report also sets out a series of letters from the British High Commission, Colombo, on arrival procedures at Colombo airport. In its letter of 28 August 2008, the BHC observed:

“[T]he correct procedure for [Department of Immigration and Emigration (DIE)]] officers is to record the arrival of these persons manually into a logbook held in the adjacent Chief Immigration Officer’s office. The name, date and time of arrival and arriving flight details are written into the log. It records why the person has come to their attention and how the case was disposed of. I have had the opportunity to look at the log, and it appears that the only two ways of disposal are to be passed to CID, or allowed to proceed.

The office of the State Intelligence Service [SIS] is on the immigration arrivals hall and an officer from SIS usually patrols the arrivals area during each arriving flight. Invariably, if they notice a person being apprehended they approach IED and take details in order to ascertain in [sic] the person may be of interest to them. Their office contains three computer terminals, one belonging to the airport containing flight information and two stand-alone terminals. If an apprehended person is considered suitable to be passed to CID, they are physically walked across the terminal building to the CID offices. A CID officer should then manually record the arrival of the person into a logbook held in their office...often persons shown in the IED logbook to have been handed to CID are never actually recorded as being received in the CID logbook. It is believed that CID has allowed these persons to proceed and no action taken against them.”

The letter also noted that CID offices at the airport contained two computers, which were not linked to any national database. Any checks on persons detained or apprehended were conducted over the phone with colleagues in central Colombo. There were no fingerprint records at the airport. One computer contained records of suspects who had been arrested and charged with offences, and court reference numbers.

In its most recent letter, dated 22 January 2009, the BHC reported that an official had spent several hours observing the return of failed asylum seekers from the UK, including those who were in possession of emergency travel documents, issued by the Sri Lankan High Commission in London. In the official’s opinion, the fact that certain returnees had been issued with Emergency Travel Documents by the Sri Lankan High Commission in London did not seem to make any difference.

DIE officers interviewed the returnees individually about routine immigration and identity matters. Individual interviews were then carried out by officers from SIS in front of the other returnees. Routine questions were asked. Photographs were taken but fingerprints were not and computer records were not checked or updated. The same procedures were repeated by CID. The returnees were then taken back to the immigration hall, where they were handed their emergency travel documents which had been endorsed by an immigration officer’s arrival stamp. The BHC official commented that there was no “joined-up approach between the border control agencies, DIE, SIS and CID, and clearly no collusion or sharing of information.” The official concluded by reiterating:

“• I did not see any of the officers from any of the border agencies record or check the returnees’ details on any computer.

• All interviews with the returnees were recorded on paper.

• SIS and CID officers took photographs of the returnees.

• None of the returnees had their fingerprints taken.

• None of the returnees were fitted with any type of tagging device.”

COMPLAINTS

The applicants complain that it would expose them 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 they were to be returned to Sri Lanka.

QUESTION TO THE PARTIES

In the light of NA. v. the United Kingdom, no. 25904/07, 17 July 2008, would each applicant’s return to Sri Lanka give rise to substantial grounds for believing that he or she would be at real risk of ill-treatment in violation of Article 3 of the Convention?

The parties are requested to comment on the recent objective information set out in the statement of facts and, if necessary, to provide any further such information.