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E.G. v. THE UNITED KINGDOM - 41178/08 [2011] ECHR 846 (31 May 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/846.html
Cite as:
(2012) 54 EHRR 1,
[2011] ECHR 846
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FOURTH
SECTION
CASE OF E.G. v. THE UNITED KINGDOM
(Application
no. 41178/08)
JUDGMENT
STRASBOURG
31 May
2011
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 E.G. v. the United
Kingdom,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Lech Garlicki, President,
Nicolas
Bratza,
Ljiljana Mijović,
Sverre Erik
Jebens,
Zdravka Kalaydjieva,
Nebojša
Vučinić,
Vincent A. De Gaetano, judges,
and
Lawrence Early,
Section Registrar,
Having
deliberated in private on 10 May 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 41178/08) against the United
Kingdom of Great Britain and Northern Ireland lodged with the Court
under Article 34 of the Convention for the Protection of Human Rights
and Fundamental Freedoms (“the Convention”) by a
Sri Lankan national, E.G. (“the applicant”), on 29 August
2008.
The
applicant was represented by Mr S. Satha, a lawyer practising in
London with Satha & Co. Solicitors. The United Kingdom Government
(“the Government”) were represented by their Agent, Mr D.
Walton of the Foreign and Commonwealth Office.
On
28 April 2008, the Acting President of the Fourth Section decided to
apply Rule 39 of the Rules of Court, indicating to the Government
that it was in the interests of the parties and the proper conduct of
the proceedings that the applicant should not be expelled to Sri
Lanka pending the Court's decision. On 3 September 2008 the Acting
President decided to give notice of the application to the
Government. It was also decided to examine the merits of the
application at the same time as its admissibility (Article 29 § 3).
It was subsequently decided to grant the applicant anonymity (Rule 47
§ 3 of the Rules of Court).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
facts of the case, as submitted by the parties, may be summarised as
follows.
The
applicant is a Tamil who was born in 1976 in northern Sri Lanka. He
arrived in the United Kingdom on 7 November 2000 and on that date
claimed asylum on the ground that he feared persecution by the Sri
Lankan army on account of his involvement with the Liberation Tigers
of Tamil Eelam (“the LTTE”). He submitted that he had
been arrested in 1996, after he had left the LTTE, in a round-up and
identified as an LTTE member by a masked man. He was severely
tortured during the five days of his detention. He was released after
the village headman and his mother intervened, but as a condition of
his release he was required to sign on regularly at an army camp.
On
7 March 2001 the Secretary of State for the Home Department refused
the applicant's asylum claim. He did not accept that the applicant
had been arrested and tortured in 1996 or that he genuinely feared
that he would be arrested by the army.
The
applicant subsequently obtained a medical report which confirmed that
he had a number of scars on his scalp, his elbows and his legs caused
by shell fragments.
On
17 April 2002 the applicant's appeal against the Secretary of State's
decision was dismissed by an Adjudicator. With no Home Office
representative present at the hearing to cross-examine the applicant,
his evidence was unchallenged. The Adjudicator therefore accepted
that the applicant had been a member of the LTTE and that he had been
detained and ill-treated by the army in 1996. The Adjudicator also
accepted that the scars were caused by shell fragments as the
applicant claimed. She noted, however, that the applicant's scars
were not readily visible and would not cause the applicant to stand
out; this was evidenced by the fact that the applicant was able to
leave Sri Lanka without difficulty, despite having to travel across
the country and through checkpoints, which indicated that he was of
no interest to the authorities. With regard to the applicant's
Article 8 rights, the Adjudicator noted that although the applicant
had a brother and sister in the United Kingdom, he had been separated
from them for eight and twelve years respectively; neither had been
present at the hearing; and they could visit the applicant in Sri
Lanka should they so wish.
On
28 May 2002 the applicant was refused permission to appeal to the
then Immigration Appeal Tribunal.
The
applicant subsequently made further representations to the Home
Office, which, in a decision dated 11 May 2006, the Secretary of
State refused to treat as a fresh asylum claim. On 9 October 2006
permission to apply for judicial review was refused. Permission was
again refused on 19 February 2007 following an oral hearing. On 5
February 2007 the applicant once again submitted further
representations. On 16 February 2007 the Secretary of
State decided not to treat those representations as a fresh asylum
claim. On 21 February 2007 a further application for permission to
apply for judicial review was refused.
On
10 January 2008 the applicant submitted fresh representations
requesting that his case be reconsidered in light of the country
guidance determination of LP (LTTE area – Tamils –
Colombo – risk?) Sri Lanka CG [2007] UKAIT 00076 (see
paragraph 13 below). The Secretary of State responded in a letter
dated 27 August 2008 stating that:
“It is accepted that your client is of Tamil
ethnicity as claimed. It is not believed that your client was
tortured and as such it is doubtful he was a member of the LTTE as
claimed”.
This
reasoning led to the conclusion that the applicant's only risk
factors were his Tamil ethnicity and scarring, which the Secretary of
State pointed out only had significance if combined with other
factors likely to bring the applicant to the attention of the
authorities.
II. RELEVANT DOMESTIC LAW AND PRACTICE
In LP (LTTE area – Tamils –
Colombo – risk?) Sri Lanka CG [2007] UKAIT 00076 (“LP”),
the Asylum and Immigration Tribunal considered the case of a Tamil,
LP, from Jaffna in the north of Sri Lanka. He had experienced
problems with the LTTE and the Sri Lankan authorities and had fled
Sri Lanka on 29 December 1999 but had been refused asylum in the
United Kingdom by the Secretary of State. In dismissing LP's appeal
on asylum grounds but allowing it on the basis of Article 3 of the
Convention, the Tribunal gave the following guidance in the headnote
to its determination:
“(1) Tamils are not per se at risk of
serious harm from the Sri Lankan authorities in Colombo. A number of
factors may increase the risk, including but not limited to: a
previous record as a suspected or actual LTTE member; a previous
criminal record and/or outstanding arrest warrant; bail jumping
and/or escaping from custody; having signed a confession or similar
document; having been asked by the security forces to become an
informer; the presence of scarring; return from London or other
centre of LTTE fundraising; illegal departure from Sri Lanka; lack of
an ID card or other documentation; having made an asylum claim
abroad; having relatives in the LTTE. In every case, those factors
and the weight to be ascribed to them, individually and cumulatively,
must be considered in the light of the facts of each case but they
are not intended to be a check list.
(2) If a person is actively wanted by the
police and/or named on a Watched or Wanted list held at Colombo
airport, they may be at risk of detention at the airport.
(3) Otherwise, the majority of returning
failed asylum seekers are processed relatively quickly and with no
difficulty beyond some possible harassment.
(4) Tamils in Colombo are at increased risk
of being stopped at checkpoints, in a cordon and search operation, or
of being the subject of a raid on a Lodge where they are staying. In
general, the risk again is no more than harassment and should not
cause any lasting difficulty, but Tamils who have recently returned
to Sri Lanka and have not yet renewed their Sri Lankan identity
documents will be subject to more investigation and the factors
listed above may then come into play.
(5) Returning Tamils should be able to
establish the fact of their recent return during the short period
necessary for new identity documents to be procured.
(6) A person who cannot establish that he is
at real risk of persecution in his home area is not a refugee; but
his appeal may succeed under article 3 of the ECHR, or he may be
entitled to humanitarian protection if he can establish he would be
at risk in the part of the country to which he will be returned.
(7) The weight to be given to expert evidence
(individual or country) and country background evidence is dependent
upon the quality of the raw data from which it is drawn and the
quality of the filtering process to which that data has been
subjected. Sources should be given whenever possible.
(8) The determinations about Sri Lanka listed
in para 229 [of the determination – see below] are replaced as
country guidance by this determination. They continue to be reported
cases.”
Following the Court's judgment in NA. v. the United
Kingdom, application no. 25904/07, 17 July 2008 (see paragraph 67
below), the Asylum and Immigration Tribunal issued two further
Country Guideline determinations. The first, AN & SS (Tamils –
Colombo – risk?) Sri Lanka CG [2008] UKAIT 00063 (“AN
& SS”), was published shortly after NA. and the
Tribunal did not have the benefit of the Court's decision in reaching
its conclusions. The Tribunal gave the following guidance in the head
note to the determination:
“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.
A generous support package is available for five years from the
International Organisation for Migration to those who return
voluntarily. Those who refuse to do so cannot pray in aid the
prospect of being destitute in Colombo.
PR (medical facilities) Sri Lanka CG
[2002] UKIAT 4269 is, owing to its antiquity, no longer to be
treated as country guidance on the availability of medical treatment
for returnees. The guidance in PS and LP, however, has
been considered and approved by the European Court of Human Rights in
NA v United Kingdom, handed down on 17th July
2008.”
In the case of Veerasingham v Secretary of State
for the Home Department [2008] EWHC 3044 (Admin), however, the
High Court Judge noted that:
“Without seeking to throw any doubt on the
decision in AN on its own facts, I reject the defendant's
submission that it forms a general assessment of the factual
background dispositive of the outcome in this case, or that a future
tribunal would be bound to apply that case as opposed to the
assessment of the European Court of Human Rights. The tribunal in AN
did not have the benefit of the Strasbourg court's assessment of risk
in such circumstances and the continuity of risk properly assessed in
the light of the criteria used in adjudicating Article 3 claims. I am
unaware of any tribunal decision that has done so since the AN
decision.”
In the second, TK
(Tamils – LP updated) Sri Lanka
CG [2009] UKAIT 00049 (“TK”),
the Tribunal found that the risk factors identified in LP
and AN and SS (both
cited above) were still relevant but that a subsequent country
guidance case was necessary to take account of the recent major
changes to the country situation in Sri Lanka. In TK,
the Tribunal held
that:
“The risk categories identified in LP
(LTTE area – Tamils - Colombo – risk?) Sri Lanka CG
[2007] UKAIT 00076 and approved by the European Court of Human Rights
(ECtHR) in NA v UK, App.no. 25904/07, remain valid.
Events since the military defeat of the LTTE in May 2009
have not aggravated the likely approach of the Sri Lankan authorities
to returned failed asylum seekers who are Tamils; if anything the
level of interest in them has decreased. The principal focus of the
authorities continues to be, not Tamils from the north (or east) as
such, but persons considered to be either LTTE members, fighters or
operatives or persons who have played an active role in the
international procurement network responsible for financing the LTTE
and ensuring it was supplied with arms.
The records the Sri Lanka authorities keep on persons
with some history of arrest and detention have become increasingly
sophisticated; their greater accuracy is likely to reduce
substantially the risk that a person of no real interest to the
authorities would be arrested or detained.
The practice of immigration judges and others of
referring to “objective country evidence”, when all they
mean is background country evidence, should cease, since it obscures
the need for the decision-maker to subject such evidence to scrutiny
to see if it conforms to legal standards for assessing the quality of
Country of Origin Information (COI) as identified by the ECtHR in NA
and as set out in the Refugee Qualification Directive (2004/83/EC),
Article 4(1), 4(3)(a), 4(5),4(5)(a) and 4(5)(c) and the Procedures
Directive (2005)85/EC), Article 8(2)(a)and (b) and 8(3).”
III. COUNTRY INFORMATION
A. Events occurring after the cessation of hostilities in May 2009
Extensive
information about Sri Lanka can be found in NA.,
cited above, §§ 53-83. The information set out below
concerns events occurring after the delivery of the said judgment on
17 July 2008 and, in particular, after the cessation of
hostilities in May 2009.
Fighting
between the Sri Lankan army and the LTTE intensified in early 2009,
with the army taking a number of rebel strongholds in the north and
east of the country. 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. It was also reported that most,
if not all, of the LTTE's leadership had been killed.
The
previous day, the United Nations Office for the Coordination of
Humanitarian Affairs had 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.
In
July 2009, the South Asia Terrorism Portal reported that the number
of killings in Sri Lanka in the previous three years (including
deaths of civilians, security forces and members of the LTTE) was:
4,126 in 2006; 4,377 in 2007; 11,144 in 2008 and 15,549 between 1
January 2009 and 15 June 2009. An estimated 75-80,000 people
were reported to have been killed in total over the course of the 26
year conflict.
21. In
July 2009, in a Note on
the Applicability of the 2009 Sri Lanka Guidelines,
the United Nations High Commissioner for Refugees (“UNHCR”)
observed that:
“Notwithstanding the cessation of the hostilities,
the current protection and humanitarian environment in Sri Lanka
remains extremely challenging. In the North, nearly the entire
population from the territory formerly held by the LTTE in the North
(285,000 Tamils) has been confined to heavily militarized camps in
the Northern region. Although the government has gradually reduced
the military presence in the camps and has pledged to start the
progressive return to their villages of origin of the majority of
those in the camps, it is clear that this may take a considerable
amount of time. The lack of freedom of movement remains the
overriding concern for this population restricting its ability to
reunite with family members outside the camps, access employment,
attend regular schools, and ultimately choose their place of
residence.”
A
Human Rights Watch (“HRW”) press release, dated 28 July
2009, reported that:
“The government has effectively sealed off the
detention camps from outside scrutiny. Human rights organizations,
journalists, and other independent observers are not allowed inside,
and humanitarian organizations with access have been forced to sign a
statement that they will not disclose information about the
conditions in the camps without government permission. On several
occasions, the government expelled foreign journalists and aid
workers who had collected and publicized information about camp
conditions, or did not renew their visas.”
A
further HRW press release dated 26 August 2009 set
out concerns that more than 260,000 Tamil civilians remained in
detention camps without the freedom to leave.
In
August 2009, the first post-war local elections were held in northern
Sri Lanka. The BBC reported that voter turn-out was low due to the
number of people who were still displaced. The governing party,
the United People's Freedom Alliance, took the majority of seats
in the biggest city in the region, Jaffna. However, the Tamil
National Alliance, a party sympathetic to the defeated LTTE,
took the majority of seats in Vavuniya, the other town where polling
took place.
On
7 September 2009, James
Elder, the official spokesman for the United Nations Children's Fund
in Sri Lanka was ordered to leave Sri Lanka because of adverse
remarks that he had made to the media about the plight of Tamils in
the government-run camps.
On
10 September 2009 the Sri Lankan Official Government News Portal
announced that the motion to extend the State of Emergency
(under which the authorities have
extensive anti-terrorism powers and heightened levels of security
including checkpoints and road blocks)
by a further month had been
passed by Parliament with a majority of 87 votes.
27. In
a report dated 22 October 2009, the United States of America State
Department published a report entitled “Report
to Congress on Incidents During the Recent Conflict in Sri Lanka”,
which compiled incidents from January 2009,
when the fighting intensified, until the
end of May 2009. Without reaching any conclusions as to whether they
had occurred or would constitute violations of international law, it
set out extensive reports of enforced child soldiers, the killing of
captives or combatants trying to surrender, enforced disappearances
and severe humanitarian conditions during the hostilities.
28. On
21 November 2009, the Sri Lankan
Government announced their decision that all internally displaced
persons would be given freedom of movement and allowed to leave the
detention camps from 1 December 2009.
In
its Global Appeal 2010-2011, the UNHCR reported that:
“The Government-led military
operations in northern Sri Lanka which ended in May 2009
displaced some 280,000 people, most of whom fled their homes in the
last few months of the fighting. The majority of these internally
displaced persons (IDPs) now live in closed camps in Vavuniya
district, as well as in camps in Mannar, Jaffna and Trincomalee. An
additional 300,000 IDPs, some of whom have been displaced since 1990,
are also in need of durable solutions.
The IDPs originate mainly from the Mannar, Vavuniya,
Kilinochchi, Mullaitivu and Jaffna districts in northern Sri Lanka,
as well as from some areas in the east of the country. Though the end
of hostilities has paved the way for the voluntary return of
displaced people, some key obstacles to return remain. For instance,
many of the areas of return are riddled with mines and unexploded
ordnance. Not all are considered to be of high risk, particularly
those away from former frontlines, but mine-risk surveys and the
demarcation of no-go areas are urgently needed.
Other key obstacles to return
include the need to re-establish administrative structures in areas
formerly held by the Liberation Tigers of Tamil Eelam;
the destruction or damaged condition of public infrastructure
and private homes; and the breakdown of the economy - including
agriculture and fisheries.
The Government of Sri Lanka is planning the return
framework, and it has called on UNHCR for support with return
transport, non-food items, return shelter, livelihoods support and
assistance in building the capacity of local authorities.
With some progress having been
recently achieved, it is hoped that a substantial number of IDPs will
be able to return to their places of origin in the latter half of
2009, but a large portion of new IDPs are also likely to remain in
the camps and with host families until well into 2010.”
30. In
a Human Rights Report 2009, dated 11 March 2010, the United States
of America State Department stated that the
Sri-Lankan Government accepted assistance from NGOs and international
actors for the IDP camps but management of the camps and control of
assistance were under the military rather than civilian authorities.
Food, water, and medical care were all insufficient in the first few
weeks after the end of the war, but by July the situation had
stabilised and observers reported that basic needs were being met. In
June the military withdrew from inside the camps but continued to
provide security around the barbed wire-enclosed perimeter. The
IDPs in the largest camp, Manik Farm, were not given freedom of
movement until December, when a system of temporary exit passes was
implemented for those who had not yet been returned to their
districts of origin. Some observers said that this exit system still
did not qualify as freedom of movement.
The United Kingdom Border Agency
Country of Origin Information Report on Sri Lanka of 11 November 2010
(“the November 2010 COI Report”) stated as follows:
“4.23 The International
Crisis Group (ICG) report Sri Lanka:
A Bitter Peace, 11 January
2010, also referred to 'extra-legal detention centres' maintained by
the military and observed: 'These detained have had no access to
lawyers, their families, ICRC or any other protection agency, and it
is unclear what is happening inside the centres. In addition, the
grounds on which the ex-combatants have been identified and the legal
basis on which they are detained are totally unclear and arbitrary'.
Given the well-established practice of torture, enforced
disappearance and extra-judicial killing of LTTE suspects under the
current and previous Sri Lankan governments, there are grounds for
grave concerns about the fate of the detained. The government has
announced that of those alleged ex-combatants currently detained,
only 200 will be put on the trial; most will be detained for a
further period of 'rehabilitation' and then released.”
...
4.25 Referring to the 'at least
11,000 people' detained 'in so-called 'rehabilitation centers'
because of their alleged association with the LTTE, the HRW document
Legal Limbo, The Uncertain Fate of
Detained LTTE Suspects in Sri Lanka,
released on 29 January 2010, observed: “The government has
routinely violated the detainees' fundamental human rights, including
the right to be informed of specific reasons for arrest, the right to
challenge the lawfulness of the detention before an independent
judicial authority, and the right of access to legal counsel and
family members. The authorities' consistent failure to inform
families of the basis for the detainees' arrest and their whereabouts
raises serious concerns that some detainees may have been victims of
torture and ill-treatment, which are more likely to take place where
due process of law is lacking and which have long been serious
problems in Sri Lanka. Given the lack of information about some
detainees, there is also a risk that some may have been
'disappeared'.”
4.31 The UNHCR 'Eligibility
Guidelines for Assessing the International Protection Needs of
Asylum-Seekers from Sri Lanka', 5
July 2010 reported that 'In the wake of the conflict, almost 11,000
persons suspected of LTTE links were arrested and detained in
high-security camps' adding that 'According to a Government survey,
as of 1 March 2010, 10,781 LTTE cadres were being held at 17 centres.
Among the detainees were 8,791 males and 1,990 females,' and noted
that 'Some of the adult detainees have...been released after
completing rehabilitation programmes or because they were no longer
deemed to present a risk, including some persons with physical
disabilities.'”
The
November 2010 COI Report also set out:
“4.09 The EIU (The Economist
Intelligence Unit), Country Report, Sri Lanka, July 2010
reported: 'The EU has warned that Sri Lanka faces losing trade
advantages under the Generalised System of Preferences-Plus
(GSP-Plus) scheme from August 15th, unless the Government commits
itself in writing to improving its human rights record. The EU has
put forward 15 conditions that it says the Government needs to
promise to meet within the next six months. These include: ensuring
that the 17th amendment to the constitution, which requires that
appointments to public positions be impartial and reflect the
country's ethnic and religious mix, is enforced; repealing parts of
the Prevention of Terrorism Act that are incompatible with Sri
Lanka's covenants on political and human rights; reforming the
criminal code to allow suspects immediate access to a lawyer on
arrest; and allowing journalists to carry out their professional
duties without harassment. However, the Government has rebuffed the
EU, stressing that the issues that it has raised are internal
political matters that should not be linked to trade. The EU is not
the only international body currently putting pressure on the
government. Sri Lanka has also rejected the UN's appointment of a
three-member panel to examine possible human rights violations during
the island's civil war. The Sri Lankan authorities have warned that
they will not provide visas for panel members to enter the country.'”
...
4.11 The EIU, Country Report, Sri
Lanka, August 2010 noted that: 'The decision by the UN
secretary-general, Ban Ki-moon [on 22 June 2010], to appoint a panel
to examine accountability issues stemming from the final stages of
the island's civil war, which ended in May 2009, has prompted a
strong reaction in Sri Lanka ...'
4.12 On 17 September 2010 the UN
News Service reported that 'Secretary-General Ban Ki moon has
held his first meeting with the panel of experts set up to advise him
on accountability issues relating to alleged violations of
international humanitarian and human rights law during the final
stages last year of the conflict in Sri Lanka.' The source also noted
that the role of the experts was to examine “the modalities,
applicable international standards and comparative experience with
regard to accountability processes, taking into account the nature
and scope of any alleged violations in Sri Lanka.”
B. The treatment of returned failed asylum seekers at Colombo
airport
1. United Kingdom Government Reports
The United Kingdom Border Agency
Country of Origin Information Report on Sri Lanka of 18 February 2009
(“the February 2009 COI Report”) sets out a series of
letters from the British High Commission, Colombo, (“BHC”)
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 in 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 the
Criminal Investigations Department (CID), or allowed to proceed.
The office of the State
Intelligence Service (SIS) is in the immigration arrivals hall and an
officer from SIS usually patrols the arrivals area during each
incoming flight. Invariably, if they notice a person being
apprehended they approach IED
(Immigration and Emigration Department) 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 in a logbook held in their
office...often persons shown in the DIE 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 has been taken against them.”
The
same 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. It
continued as follows:
“Were a Sri Lankan national
to arrive at Colombo Airport having been removed or deported from the
United Kingdom, they would be in possession of either a valid
national Sri Lankan passport, or an emergency travel
document/temporary passport, issued by the Sri Lankan High Commission
in London. The holder of a valid passport would have the document
endorsed by the immigration officer on arrival and handed back to
him/her. A national passport contains the national ID card number on
the laminated details page. I have made enquiries with the DIE at
Colombo Airport, and with the International Organisation for
Migration who meet certain returnees at the airport, and both have
confirmed that a person travelling on an emergency travel document is
dealt with similarly. They too have the document endorsed by the
immigration officer on arrival and returned to them. Before issuing
an emergency travel document, the Sri Lankan High Commission in
London will have details of an applicant confirmed against records
held in Colombo and will thus satisfactorily confirm the holder's
nationality and identity. If a returnee subsequently wishes to obtain
a national identity card, they have to follow the normal procedures.”
In
a letter dated 22 January 2009, the BHC reported that an official had
spent several hours observing the return of failed asylum seekers
from the United Kingdom, 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 to
their treatment upon arrival.
The
Report of Information Gathering Visit to Colombo on 23 to 29 August
2009, conducted jointly by the Foreign and Commonwealth Office
Migration Directorate and United Kingdom Border Agency Country of
Origin Information Service (“the Report of Information
Gathering Visit, August 2009”), concluded that all enforced
returns (of whatever ethnicity) were referred to the CID at the
airport for nationality and criminal record checks, which could take
more than 24 hours. All enforced returns were wet-fingerprinted.
Depending on the case, the individual could also be referred to the
SIS and/or the Terrorist Investigation Department for questioning.
Anyone who was wanted for an offence would be arrested.
The
report set out that those with a criminal record or LTTE connections
would face additional questioning and might be detained. In general,
non-government and international sources agreed that Tamils from the
north and east of the country were likely to receive greater scrutiny
than others, and that the presence of the factors below would
increase the risk that an individual could encounter difficulties
with the authorities, including possible detention:
- Outstanding
arrest warrant
- Criminal
record
- Connection
with the LTTE
- Bail
jumping/escape from custody
- Illegal
departure from Sri Lanka
- Scarring
- Involvement
with media or NGOs
- Lack
of an ID card or other documentation
The November 2010 COI report set
out the following:
“33.20 The BHC letter of 30
August 2010 went on to observe that: 'At the beginning of 2010,
partly due to the large numbers of Sri Lankans being returned from
around the world and causing logistical problems, CID procedures were
relaxed in that they no longer had to detain returnees until written
confirmation was received from the local police. All returnees are
still interviewed, photographed and wet fingerprinted. The main
objective of these interviews is to establish if the returnee has a
criminal record, or if they are wanted or suspected of committing any
criminal offences by the police. The photographs are stored on a
standalone computer in the CID office at the airport. The
fingerprints remain amongst paper records also in the CID office at
the airport. Checks are initiated with local police, but returnees
are released to a friend or relative, whom CID refers to as a surety.
This surety must provide evidence of who they are, and must sign for
the returnee. They are not required to lodge any money with CID. The
main CID offices at Colombo Airport, which are housed on the ground
floor adjacent to the DIE embarkation control, are currently
undergoing a complete refurbishment funded by the Australian
government. The one completed office suite has three purpose built
interview rooms, and facilities where returnees can relax and eat
meals.'
...
33.22 A British High Commission
letter of 14 September 2010 reported: 'There is strong anecdotal
evidence that scarring has been used in the past to identify
suspects. Previous 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. More recent claims from contacts in government ministries
suggest that this practice has either ceased or is used less
frequently. At the very least it appears that the security forces
only conduct these when there is another reason to suspect an
individual, and are not looking for particular scars as such, but
anything that may indicate the suspect has been involved in fighting
and/or military training. There is no recent evidence to suggest that
these examinations are routinely carried out on immigration
returnees.'”
2. Other Sources
39. On
19 October 2009, Tamilnet reported that twenty-nine Tamil youths were
taken into custody by the State Intelligence Unit of the Sri Lanka
Police at the International Airport in two separate incidents whilst
trying to leave Sri Lanka. It was also reported that since July 2009,
special teams of the State Intelligence Unit and police had been
deployed in the airport to monitor the movement of Tamils who try to
go abroad.
C. The treatment of Tamils in Colombo
The
Report of Information Gathering Visit, August 2009, stated that the
frequency of cordon and search operations had not reduced
significantly in recent months, though there were fewer large-scale
operations than in previous years. In general, young male Tamils
originating from the north and east of the country were most at risk
of being detained following cordon and search operations, with the
presence of the risk factors set out above increasing that risk.
Those without employment or legitimate purpose for being in Colombo
were also likely to be seen as suspect. The same report also noted
that most sources agreed that there had been few, if any, abductions
or disappearances since June 2009. There was not a great deal of
available information about the profile of Tamils targeted for
abduction, although it appeared that people linked to the media might
be more vulnerable. Police did not generally carry out effective
investigations. It went on to note that most sources agreed that
there had not been any significant reduction in the number of
checkpoints in Colombo, whose stated purpose remained to detect and
prevent terrorist activity. In general those most likely to be
questioned were young Tamils from the north and east; those without
ID; those not resident or employed in Colombo; and those recently
returned from the West. However, most sources said that arrests at
checkpoints were rare and none had been reported since June 2009.
It was reportedly fairly likely that someone would be stopped at a
checkpoint en route from
the airport to Colombo city. Finally, it clarified that people who
wished to live in Colombo but did not originate from there were
required to register with the local police station with a national ID
card or full passport, and give details of planned length and purpose
of stay. In theory, whilst anyone was entitled to register to
stay in Colombo, some sources suggested that young Tamil men
originally from the north or east of the country could encounter
difficulties and face closer scrutiny. The presence of any of
the risk factors set out above would also attract greater attention
from the police.
D. The treatment of Tamils in general
1. United Nations Reports
41. The
UNHCR Eligibility Guidelines for Assessing the International
Protection Needs of Asylum-Seekers from Sri Lanka, April 2009
(“the April 2009 Guidelines”) observed that:
“The significant majority of
reported cases of human rights violations in Sri Lanka involve
persons of Tamil ethnicity who originate from the North and
East...In Government-controlled areas, Tamils who originate from
the North and the East, which are, or have been under LTTE control,
are frequently suspected as being associated with the LTTE. For this
reason, Tamils from the North and the East are at heightened risk of
human rights violations related to the implementation of
anti-terrorism and anti-insurgency measures. While this risk
exists in all parts of Sri Lanka, it is greatest in areas in
which the LTTE remains active, and where security measures are
heaviest, in particular the North and parts of the East, and in and
around Colombo.”
42. The
Guidelines also noted that the Government had been heavily criticised
for the high number of Tamils who have been subjected to arrest and
security detention, particularly on the basis of information gathered
in registration exercises and questioning at cordons and road
checkpoints in and around the capital.
43. The
UNHCR Note on the Applicability of the 2009 Sri Lanka Guidelines,
(see paragraph 21 above) observed:
“The country of origin
information that UNHCR has considered indicates that Tamils from the
North of Sri Lanka continue to face a significant risk of suffering
serious human rights violations in the region (and elsewhere in the
country) because of their race (ethnicity) or (imputed) political
opinion. Tamils in the North are still heavily targeted in the
security and anti-terrorism measures described in the Guidelines.
Wide scale detention and confinement of Tamils from the North remains
a serious concern. Pro-Government paramilitary elements also continue
to operate with impunity against Tamils in the North.”
The UNHCR Eligibility Guidelines
for Assessing the International Protection Needs of Asylum-Seekers
from Sri Lanka of 5 July 2010 (“the July 2010
Guidelines”), which superseded the April 2009 Guidelines,
contained information on the particular profiles for which
international protection needs may arise in the current context. It
was stated that:
“Given
the cessation of hostilities, Sri Lankans originating from the north
of the country are no longer in need of international protection
under broader refugee criteria or complementary forms of protection
solely on the basis of risk of indiscriminate harm. In light of the
improved human rights and security situation in Sri Lanka, there is
no longer a need for group-based protection mechanisms or for a
presumption of eligibility for Sri Lankans of Tamil ethnicity
originating from the north of the country. It is important to bear in
mind that the situation is still evolving, which has made the
drafting of these Guidelines particularly complex.”
In summary, the following were
UNHCR's recommendations: all claims by asylum seekers from Sri Lanka
should be considered on the basis of their individual merits
according to fair and efficient refugee status determination
procedures and up-to-date and relevant country of origin information.
UNHCR considered that, depending on the particular circumstances of
the case, some individuals with profiles similar to those outlined in
the Guidelines require a particularly careful examination of possible
risk. These risk profiles, while not necessarily exhaustive, are set
out below:
(i)
persons suspected of having links with the Liberation Tigers of Tamil
Eelam (LTTE); (ii) journalists and other media professionals; (iii)
civil society and human rights activists; (iv) women and children
with certain profiles; and (v) lesbian, gay, bisexual and transgender
(LGBT) individuals.
2. Other Sources
46. A
report commissioned by the applicant's representatives from Dr Chris
Smith (“Dr Smith's report”) and dated 5 February 2007,
includes the following relevant paragraphs:
“Given the treatment of Tamils, the authorities
would question as to why any Tamil would want to come back and a
significant exodus from the North is anticipated. The authorities
may well conclude that, given their second class status, the only
reason to return would be to lend support to the LTTE or whatever
comes in its place. As such, returnees are likely to face a difficult
time, especially at the airport.
The applicant was held for 5 days and the severity of
his ill-treatment indicates that he was of adverse interest to the
authorities who detained him. As such, his record will most likely
have been included on the central database, particularly since he was
released on reporting conditions which he subsequently violated. He
has visible scars which could trigger adverse interest at the airport
and, furthermore, the fact that he left Sri Lanka using false
documentation will further contribute to risk and vulnerability at
the airport. As such, it is very likely that the applicant will be
detained on arrival and this will place him at considerable risk of
ill-treatment, torture and, even, sexual abuse.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 2 and 3 OF THE CONVENTION
The
applicant complained that his removal to Sri Lanka would violate his
rights under Articles 2 and 3 of the Convention. Article 2 of the
Convention provides that:
“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.
2. Deprivation of life shall not be regarded
as inflicted in contravention of this article when it results from
the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful
violence;
(b) in order to effect a lawful arrest or to
prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose
of quelling a riot or insurrection.”
Article
3 of the Convention provides that:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
The
Government contested that argument.
A. Admissibility
The
Court finds that it is more appropriate to deal with the complaint
under Article 2 in the context of its examination of the related
complaint under Article 3 and will proceed on this basis (see NA.,
cited above, § 95). It notes that the complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. It further notes that it is not inadmissible on any
other grounds. It must therefore be declared admissible.
Merits
The parties' submissions
a) The applicant's submissions
The
applicant submitted that there were substantial grounds for believing
that he would be at risk of being detained and ill-treated by the
authorities at the airport or in Colombo such as to constitute a
breach of Article 3 if he were returned to Sri Lanka.
In
particular, he submitted that the situation in Sri Lanka had
deteriorated since the Court's judgment in NA., cited above.
In support, he referred to the April 2009 Guidelines (see paragraph 41
above). He submitted that these highlighted the fact that the
armed conflict had escalated from mid-2008 until the date of the
report; that conditions in high security camps were not consistent
with international standards for the treatment of displaced persons;
that in those camps there was a screening process to identify LTTE
suspects; and that Tamils from the north suspected of affiliation to
the LTTE were at high risk of harassment, arrest, detention, torture,
abduction or killing. The April 2009 Guidelines therefore supported
his contention that he would be at risk of treatment contrary to
Article 3 of the Convention if he were to be returned.
The
applicant further relied on Dr Smith's report (see paragraph 46
above), which indicated that as Tamils had become second-class
citizens in their own country, the authorities may conclude that the
only reason to return would be to lend support to the LTTE. As such,
they were likely to face a difficult time, especially at the airport.
In
relation to the risk factors identified in LP and NA.,
both cited above, the applicant submitted that there were clearly
substantial grounds for believing that he would be detained and
ill-treated at the airport given his record of past detention; his
departure from Sri Lanka in breach of reporting conditions; his past
membership of the LTTE; his scarring; and the fact that he was a
Tamil from the north, who had left Sri Lanka illegally and was
returning from London as a failed asylum seeker.
In
relation to his LTTE membership, the applicant submitted that the
fact that he had been an LTTE member of rank and had been released on
reporting conditions pointed to his detention being one that would be
on record and which was clearly formal. The applicant further
submitted that a breach of reporting conditions should be treated in
the same way as bail jumping in the assessment of risk.
With
regard to the scarring, the applicant argued that his record of past
detention would increase the risk that he would be arrested and
detained at the airport. While his scars would not be readily visible
when covered by clothing, they would be apparent if he were to be
checked or strip searched by the authorities.
Should
it be concluded that the applicant would not be at risk at the
airport itself, he submitted that he would be at risk in Colombo.
In particular, he submitted that there was a real risk that he
would be arrested either at a check point or in a round-up at a
lodge. That risk would be further increased while the applicant was
without an ID card, as this was the only acceptable evidence of
identity and must be carried at all times. If arrested there was
a real risk that the applicant's records would be checked and his
history of detention and breach of reporting conditions would come to
light. It was also likely that at that stage his scars would be seen
by the police and viewed as confirmation of past involvement with the
LTTE.
b) The Government's submissions
The
Government accepted, for the purposes of the proceedings before the
Court, that the applicant had been detained by the army for five days
in April 1996 and ill-treated in the manner described. They
maintained, however, that he was not of sufficient interest to the
Sri Lankan authorities to warrant his arrest and detention on return
and, consequently, that there would be no risk of ill-treatment
contrary to Article 3 of the Convention.
The Government challenged the country information relied on by the
applicant. They indicated that the situation in Sri Lanka had
developed to such an extent since the publication of the April 2009
Guidelines, that the UNHCR had published a note on their
applicability (see paragraph 21 above). The Government argued that,
insofar as UNHCR recommended that Tamil asylum-seekers from the north
should be granted asylum, that recommendation was based on
information about the risk to Tamils “in the region” and
there was no indication that the Note had in any way considered the
risk in Colombo generally. Moreover, they submitted that, following
NA., little weight should be attached to the UNHCR's
assessment as its comments were not focused on the question of
whether there was a risk of ill-treatment contrary to Article 3 of
the Convention. Consequently, it provided no support for the
applicant's assertion that there was a real risk he would be
subjected to treatment contrary to Article 3 of the Convention if he
were returned to Colombo. Instead, the Government relied on the then
most recent Country of Origin Information report, published by the
United Kingdom Border Agency on 13 October 2009, which contained the
most up-to-date publicly available information.
The
Government further observed that Dr Smith's evidence had been
criticised by the Asylum and Immigration Tribunal in LP (cited
above). In particular, the Tribunal had noted that, “some
of the evidence given by Dr Smith appeared to be simply wrong”
and, “there are a number of places where he demonstrably
exaggerated the risk to the appellant”. In AN & SS
(cited above), the Tribunal was again critical of Dr Smith's
evidence, fearing that Dr Smith was “going beyond his expertise
and simply speculating”. Dr Smith's report in the present
application suffered from the same defects as his evidence before the
Tribunal, according to the Government, as it drew largely on material
that pre-dated the evidence in both LP and AN & SS,
and it focused more on the general humanitarian situation than on the
possibility of the applicant being exposed to a real risk of
treatment contrary to Article 3.
The
Government submitted that, following NA., cited above, in
order to establish a breach of Article 3 of the Convention, the
applicant would have to show that there were serious reasons to
believe that he was of sufficient interest to the authorities to
warrant his detention and interrogation, either because he was likely
to be detained and interrogated at Colombo airport, or because he had
such a high profile as an opposition activist or as someone viewed by
the LTTE as a renegade or traitor so as to be at risk more generally
in Colombo. The Government argued that it was clear from the
evidence before the Court that the applicant did not fall into the
second category. In particular, they noted that he had been allowed
to leave the LTTE and return home, and that he had subsequently led a
normal life until his detention in 1996. The question of whether the
applicant was likely to be detained and interrogated at the airport
had to be assessed by reference to the risk factors identified by the
Asylum and Immigration Tribunal in LP and approved by the
Court in NA (cited above, § 13).
Although
the Government accepted that the applicant had been detained and
tortured, they submitted that this had taken place over thirteen
years ago and, unlike in the case of the applicant in NA.,
there was no evidence that there would be any record of that
detention. In particular, there was no evidence of an arrest warrant
or a criminal record, and there was no evidence that the applicant
had been photographed or fingerprinted. Moreover, the Adjudicator had
found that even though the applicant had breached his reporting
condition by leaving the country, he had been able to travel through
checkpoints without difficulty, which he could not have done had he
been of interest to the authorities. The Government further submitted
that the applicant did not fall into the risk category of “bail
jumping” or “escaping from custody”. On the
available evidence it was much more likely that the applicant had
been released without any requirement for bail as appeared to be
“common practice” outside Colombo. Furthermore, the fact
that he had not complied with his reporting requirement did not
appear to have led to the creation of any formal record.
In
relation to the applicant's scars, the Government submitted that the
Court could not go behind the Adjudicator's findings that they were
not readily visible and would not bring the applicant to the
attention of the authorities. The Adjudicator had had the benefit of
seeing the applicant give evidence and of examining the scars, and
the applicant had not submitted any evidence to undermine the
Adjudicator's clear finding of fact.
With
regard to the risk factors of returning from London; having made an
asylum claim abroad; illegal departure from Sri Lanka; and lack of an
ID card, the Government relied on the Court's finding in NA. that
these would be “contributing factors” which would need
other, perhaps more compelling, factors before a real risk could be
established.
The Court's assessment
a) General principles
The
Court reiterates that Contracting States have the right as a matter
of international law and subject to their treaty obligations,
including the Convention, to control the entry, residence and
expulsion of aliens (Üner v. the Netherlands
[GC], no. 46410/99, § 54, ECHR 2006 ....). However,
expulsion by a Contracting State may give rise to an issue under
Article 3, and hence engage the responsibility of that State under
the Convention, where substantial grounds have been shown for
believing that the person concerned, if deported, faces a real risk
of being subjected to treatment contrary to Article 3. In such a
case, Article 3 implies an obligation not to deport the person in
question to that country (Saadi v. Italy [GC], no. 37201/06,
§ 125, ECHR 2008-...). The assessment of whether there are
substantial grounds for believing that the applicant faces such a
real risk inevitably requires that the Court assess the conditions in
the receiving country against the standards of Article 3 of the
Convention (Mamatkulov and Askarov v. Turkey [GC],
nos. 46827/99 and 46951/99, § 67, ECHR 2005 I).
These standards imply that the ill treatment the applicant
alleges he will face if returned must attain a minimum level of
severity if it is to fall within the scope of Article 3. The
assessment of this is relative, depending on all the circumstances of
the case (Hilal v. the United Kingdom, no. 45276/99, §
60, ECHR 2001 II).
In
order to determine whether there is a real risk of ill-treatment in
this case, the Court must examine the foreseeable consequences of
sending the applicant to Sri Lanka, bearing in mind the general
situation there and his personal circumstances (see Vilvarajah and
Others v. the United Kingdom, 30 October 1991, § 108 in
fine, Series A no. 215). If an applicant has not yet been
extradited or deported when the Court examines the case, the relevant
time will be that of the proceedings before the Court (see Saadi
v. Italy, cited above, § 133). A full and ex nunc
assessment is called for as the situation in a country of destination
may change over the course of time. Even though the historical
position is of interest insofar as it may shed light on the current
situation and its likely evolution, it is the present conditions
which are decisive and it is therefore necessary to take into account
information that has come to light since the final decision taken by
the domestic authorities (see Salah Sheekh v. the Netherlands,
no. 1948/04, § 136, ECHR 2007 I (extracts)).
The Court also recalls its findings in NA.,
cited above:
“128. It follows that both the assessment of the
risk to Tamils of 'certain profiles' and the assessment of whether
individual acts of harassment cumulatively amount to a serious
violation of human rights can only be done on an individual basis.
Thus, while account must be taken of the general situation of
violence in Sri Lanka at the present time, the Court is satisfied
that it would not render illusory the protection offered by Article 3
to require Tamils challenging their removal to Sri Lanka to
demonstrate the existence of further special distinguishing features
which would place them at real risk of ill-treatment contrary to that
Article (see Salah Sheekh, cited above, § 148 and
paragraphs 116–117 above).
129. The Court therefore considers that it is in
principle legitimate, when assessing the individual risk to
returnees, to carry out that assessment on the basis of the list of
'risk factors', which the domestic authorities, with the benefit of
direct access to objective information and expert evidence, have
drawn up. The Court also notes that the AIT in LP considered all the
relevant risk factors identified and put before it by the appellant
in that case and that the AIT itself was careful to avoid the
impression that these risk factors were a 'check list' or exhaustive.
It further notes that in the present case, the parties' observations
as to the individual risk to the applicant are made with reference to
the same risk factors considered in LP. Furthermore, the applicant
has not identified any further risk factors which were not considered
in LP but which would assist the Court in its assessment. As it has
recalled, the Court's own assessment must be full and ex nunc
(paragraph 112 above) but on the basis of the objective evidence
before it, the Court itself does not consider it necessary to
identify any additional risk factors which have not been duly
considered by the domestic authorities or raised by the parties in
their observations.
130. Despite this conclusion, the Court emphasises that
the assessment of whether there is a real risk must be made on the
basis of all relevant factors which may increase the risk of
ill-treatment. In its view, due regard should also be given to the
possibility that a number of individual factors may not, when
considered separately, constitute a real risk; but when taken
cumulatively and when considered in a situation of general violence
and heightened security, the same factors may give rise to a real
risk. Both the need to consider all relevant factors cumulatively and
the need to give appropriate weight to the general situation in the
country of destination derive from the obligation to consider all the
relevant circumstances of the case (see the Hilal judgment,
cited above, § 60).”
b) Relevant considerations
The
Court further recalls its recent findings in T.N. v. Denmark,
application no. 20594/08, § 93, 14 December 2010 that, although
the situation in Sri Lanka has altered since NA., with the end
of hostilities and consequent changes, the principles set down in NA.
are still entirely relevant in determining whether a Tamil returned
to Sri Lanka will or will not face a real risk.
The
Court also finds that, in the light of the various sources of
background country evidence on Sri Lanka, the current situation in
the country has been accurately set out in the Country Guidance case
of TK, cited above. The Court recognises the comprehensive
review of background and expert evidence carried out by the Asylum
and Immigration Tribunal which heard TK. The Court also takes
note of the background evidence set out above which has been issued
since TK was handed down, such as the November 2010 COI
report, which details the relaxation of certain procedures at Colombo
airport (see paragraph 38 above) and the July 2010 Guidelines, which
state that only Tamils with particular profiles will be in need of
international protection (see paragraphs 44-45 above). The Court
notes in particular that the July 2010 Guidelines represent the most
recent guidance issued by the UNHCR and state that, given the
improved situation in Sri Lanka, group-based protection is no longer
necessary and each case should be assessed on its individual merits,
having regard to the risk profiles. Drawing on all these sources, the
Court finds that the risk factors identified in LP and
endorsed by this Court in NA. are still applicable but, given
the end of hostilities, the likelihood of a Tamil returning to
Colombo being the subject of adverse interest on the part of the Sri
Lankan authorities has, if anything, declined (see TK, cited
above).
The
Court finally notes that the expert report obtained by the present
applicant from Dr Smith (see paragraph 46 above) differs greatly from
the rest of the background evidence, in finding that the situation in
Sri Lanka is likely to be worse than before for Tamil returnees.
However, given that his views are highly discrepant to the
preponderance of the country evidence, and given that his opinions
have been criticised by the Asylum and Immigration Tribunal, the
Court shares the Government's view that Dr Smith's report in
this case carries limited weight. The Court attaches far more weight
to the other background evidence cited above and to the principles
elaborated by the Tribunal which has had the benefit of examining in
detail this background evidence and reports from other experts, in
the series of relevant cases which began with LP.
c) Application to the facts of the case
In
considering whether the applicant has established that he would be at
real risk of ill-treatment in Sri Lanka, the Court observes as a
preliminary matter that the Government propose to remove him to
Colombo. In the light of this, the Court does not consider it
necessary to examine the risk to Tamils in any other part of the
country outside Colombo and will proceed to examine the risk to
Tamils returning to Sri Lanka on this basis.
The
Court notes that for the purposes of this case, the Government have
accepted that the applicant was detained by the army and ill-treated
in 1996 as he alleged. The applicant's version of events was also
accepted by the Adjudicator who heard his appeal in 2002. However,
when the Secretary of State refused to treat the applicant's
representations as a fresh claim on 27 August 2008, it was explicitly
stated that it was not accepted that the applicant had been tortured
as he claimed. The Secretary of State doubted that the applicant had
been involved with the LTTE as he alleged. Thus, while the
applicant's case was considered in the light of LP, this
consideration was carried out on the basis that the applicant did not
possess certain risk factors, such as a record as a former LTTE
member, which the Adjudicator had already accepted that the applicant
possessed. The Court does not therefore consider that the applicant's
case was properly assessed in the light of the relevant case extant
at the time. It is unfortunate, in the Court's view, that the
Secretary of State did not consider the findings of the Adjudicator
who had had the opportunity to see the applicant give evidence in
person. In so doing, the Secretary of State does not appear to have
had regard to risk factors which, it is accepted, applied to the
applicant and which were of relevance to the consideration of his
claim in the light of the then-recent and still relevant case-law.
The
Court now turns to its examination of the likely risk to the
applicant, having regard to all his personal circumstances, if
returned to Sri Lanka at the present time. The
applicant's case can be interpreted in the light of the NA.
risk factors as follows. He possesses various factors which, as the
Asylum and Immigration Tribunal observed in AN and SS
(cited above), can be construed as “background factors”
in that they would not suffice to give rise to a real risk when taken
alone, but may increase the risk to the applicant when taken in
conjunction with other, more specific risk factors. The background
factors which apply to this applicant include Tamil ethnicity, having
made an asylum claim abroad, and return from London. It is not clear
from the documents submitted to the Court whether the applicant
possesses an identity document or not; though it would appear likely
that, given the length of time that he has been absent from Sri
Lanka, he does not.
Regarding
the applicant's previous record, the Court notes that the Adjudicator
accepted that the applicant had been a member of the LTTE and that
the Government have not disputed this claim. The Court therefore
takes as its starting point the fact that the applicant was an active
member of the LTTE and was arrested in a round-up. The Sri Lankan
authorities have therefore, in the past at least, been aware or
suspicious that the applicant was involved with the LTTE. The Court
takes the view that, given that the manner of the applicant's release
from custody is highly indicative of the authorities' level of
interest in him, the risk factor of his previous record as an LTTE
member is best considered alongside the next risk factor.
The
Court notes that, in LP (cited above), the Asylum and
Immigration Tribunal found that having jumped bail or escaped from
custody represented a further possible risk factor for Tamils
returning to Sri Lanka. The Court is of the view that this risk
factor is best construed as a specific, rather than background,
factor. However, the Court also notes that, in the case of the
applicant, this risk factor does not apply. The applicant did not
jump bail or escape from custody but was released on the condition
that he report regularly at the army camp. The Court does not
consider that the duty to report following release is comparable to
being subject to bail, which is granted in the context of pending
criminal proceedings. The fact that the applicant was released from
custody, albeit conditionally, indicates that the authorities did not
have a continuing strong level of interest in him. If he were
considered still to be dangerous or to have further information to
divulge, he would have been kept in custody. The Court further notes
that, even after reneging on his duty to report, the applicant was
able to travel through Sri Lanka and pass various checkpoints in
order to leave the country, which he did through normal channels.
This ability to travel and to leave the country corroborates the
finding that the applicant was no longer of such interest to the
authorities that he would be re-arrested. It also indicates that no
record of the applicant's detention had been kept and indeed, the
Court notes that there is no evidence in this case that the
applicant's detention was recorded. This differentiates this
applicant from the applicant in NA. v. the United Kingdom, cited
above, in respect of whom it was accepted that a record had been made
of at least his last detention. The Court therefore finds that,
although this applicant had been identified as an LTTE member,
following his detention and prior to his departure from Sri Lanka, he
was not of continuing interest to the authorities.
Furthermore,
the Court takes the view that nothing that has transpired since the
applicant's arrival in the United Kingdom would serve to heighten the
level of interest or suspicion that he holds for the authorities in
Sri Lanka. As observed in TK (cited above), the conflict
between the Sri Lankan Government and the LTTE has now ended, and the
level of adverse interest in failed Tamil asylum seekers who return
to the country has, if anything, decreased. The general country
situation is not, therefore, conducive to any increased interest in
the applicant. Furthermore, the applicant has been absent from his
country of origin for ten years and has not at any stage raised any
suggestion that he has maintained links with the LTTE in any way. In
particular, he has not sought to argue that he has been involved in
fund-raising for the LTTE or has supported the organisation in any
other way from the United Kingdom, such as might have brought him to
the attention of the authorities. There is therefore no reason
specific to the applicant for the authorities' interest in him to
have intensified during his absence from Sri Lanka.
The
Court notes that the applicant has some scarring to his scalp, legs
and elbows. This was accepted by the Adjudicator, who had sight of
the scars at the applicant's hearing, and has been confirmed in
medical evidence submitted to this Court. The accepted position,
therefore, is that the applicant has a number of scars which were
sustained during a shell attack.
The
Court notes that, on the one hand, the Adjudicator, who inspected the
applicant's scars at his hearing, found that his scars were not
readily visible; would not be on display during the course of day to
day living; and would not cause the applicant to stand out or bring
him to the attention of the authorities. On the other hand, Dr Smith
at paragraphs 108-118 of his report (see paragraph 46 above) states
that the applicant's scars are visible and significant and that
members of the Sri Lankan security forces take a special interest in
those who either arrive in Sri Lanka with visible scarring or whose
scars are revealed during a strip search. He also noted that the
applicant's scars on his elbows would be visible if he were to dress
in normal Sri Lankan attire of a short-sleeved shirt. The scars on
his legs would be visible if he were to wear shorts. The scars on his
head were at present covered by his hair but would be revealed if the
applicant were to go bald. The Court reiterates that it has attached
limited weight to Dr Smith's report and prefers the findings of
the Adjudicator for this reason.
The
Court takes the view that the crucial question is whether the
applicant is likely to come to the attention of the authorities as he
passes through the airport (see NA., cited above, § 134).
His scars, as described by the Adjudicator who, unlike this Court,
had the opportunity of seeing the applicant in person, do not appear
to be such as would attract special attention. The Court does not,
therefore, consider that the applicant's scarring alone, even taken
in conjunction with the background risk factors discussed above and
even whilst the applicant is passing through the airport and thus
subject to a greater degree of scrutiny and control by the Sri Lankan
authorities, would attract sufficient attention to render him at risk
of detention, interrogation and ill-treatment.
The
applicant would be returned to Sri Lanka as a failed asylum seeker
from the United Kingdom, who has in the past been known to the
authorities as a former LTTE member but who was released from custody
as being of no further interest. He was arrested on only one
occasion, unlike the applicant in NA. v. the United Kingdom,
cited above, who had been arrested six times. This applicant has
scars which would be seen if he were to be strip searched as he
passed through the airport; however, the Court is of the view that
the risk of strip searching is slight given that the applicant is not
actively “wanted” by the authorities and his name will
not appear on any list of those who are wanted, who have jumped bail
or who have escaped from prison or army custody. In any event, the
applicant's scarring was in large part sustained from a shelling
incident and cannot therefore be described as characteristic of
having undergone LTTE training or having been tortured in custody,
which are the types of scarring most likely to rouse suspicion.
Upon
an overall examination of the applicant's case, the Court is of the
view that the combination of risk factors which apply to him, of
which the predominant factors are his previous record as an LTTE
member and his scarring, are not sufficient to put him at real risk
of detention and
ill-treatment should he be returned to Sri
Lanka. Accordingly, the applicant's removal to Sri Lanka would not
give rise to a violation of Article 3 of the Convention.
II. RULE 39
OF THE RULES OF COURT
The
Court recalls that, in accordance with Article 44 § 2 of the
Convention, the present judgment will not become final until (a) the
parties declare that they will not request that the case be referred
to the Grand Chamber; or (b) three months after the date of the
judgment, if reference of the case to the Grand Chamber has not been
requested; or (c) the Panel of the Grand Chamber rejects any request
to refer under Article 43 of the Convention.
It considers that the indication made to the
Government under Rule 39
of the Rules of Court (see above § 3) must continue in force
until the present judgment becomes final or until the Panel of the
Grand Chamber of the Court accepts any request by one or both of the
parties to refer the case to the Grand Chamber under Article 43 of
the Convention.
FOR THESE REASONS, THE COURT
Declares the application admissible unanimously;
Holds by five votes to two that there would be
no violation of Article 3 of the Convention in the event of the
applicant's removal to Sri Lanka; and
Decides unanimously to continue to indicate to
the Government under Rule 39 of the Rules of Court that it is
desirable in the interests of the proper conduct of the proceedings
not to remove the applicant until such time as the present judgment
becomes final or further order.
Done in English, and notified in writing on 31 May 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Lech Garlicki
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the joint dissenting opinion of
Judges Garlicki and Kalaydjieva is annexed to this judgment.
L.G.
T.L.E.
JOINT DISSENTING OPINION OF JUDGES GARLICKI
AND KALAYDJIEVA
1. It
is with regret that we cannot follow the position of the majority in
this case.
We
do not challenge the general finding that, given the evolution of the
situation in Sri Lanka, group-based protection may no longer be
necessary. However, we are of the opinion that the applicant's
personal situation does not allow his deportation to this country
without a risk of exposing him to treatment contrary to Article 3 of
the Convention.
2. The
majority identified (see paragraphs 73-77) eight “risk factors”
in the applicant's case: (1) Tamil ethnicity; (2) asylum claim
abroad; (3) return from London; (4) probable lack of identity
documents; (5) previous membership of the LTTE; (6) active nature of
that membership; (7) previous arrest because of the LTTE involvement;
(8) scarring on scalp, legs and elbows.
It may be added that while the applicant did not jump bail or escape
from custody, one of the conditions of his release was to report
regularly to the army camp. It seems that he never complied with that
condition and, therefore, his situation is, at least to some extent,
analogous to the two above-mentioned factors.
The
position of the majority seems to be based on two assumptions: (1)
that no record of the applicant's previous
arrest had been kept (paragraph 75); and (2) that the applicant's
scarring would not cause him to stand out or bring him to the
attention of the authorities. As to the latter, we would like,
however, to draw attention to Dr Smith's report, which described the
applicant's scars as “visible and significant” (paragraph
78).
We
agree that, with some luck, the applicant may avoid arrest and
detailed investigation on his arrival at Colombo airport. We are not
sure, however, that our understanding of human rights allows us to
make someone's fate contingent on being
lucky in relation to the authorities rather than on a reliable
assessment of the probability of the risk faced in the specific
individual circumstances.
3. We
are convinced that the cumulative assessment of the risk factors
mentioned above suggests that the applicant may be exposed to a clear
and genuine danger of ill-treatment if returned to Sri Lanka.
Of course, any assessment of the risks and consequences of
deportation is speculative. That is why, a “lesser evil /
lesser risk” approach may be proposed. If the applicant is not
deported, even if there is no genuine risk of ill-treatment, the
United Kingdom would be compelled to tolerate an illegal immigrant it
does not want to keep on its soil. If the applicant is deported and
if the risk of ill-treatment is genuine, he would at best be exposed
to inhuman and degrading treatment by the Sri Lankan authorities.
In both situations an error of assessment would have negative
consequences. The only difference is that if the former scenario
materialises, the United Kingdom is likely to survive our mistake;
whereas if the latter scenario comes true, the applicant may not
survive. This difference leads us to the conclusion that we cannot
afford any experimentation in this case.
