European Court of Human Rights

FOURTH SECTION

Application no. 12252/12
P.R. against the United Kingdom
lodged on 29 February 2012

STATEMENT OF FACTS

 

The applicant, P.R., is a Sri-Lankan national, who was born in 1973 and lives in London. He is represented before the Court by Birnberg Peirce & Partners, a firm of lawyers practising in London.

A.  The circumstances of the case

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

The applicant is a Sri Lankan national of Tamil ethnicity.

According to the applicant’s version of events, in May 1998, he joined the Liberation Tigers of Tamil Eelam (“LTTE”), reaching the rank of Lieutenant. He had not fought for the LTTE, but had worked as a driver for them. The applicant left the LTTE in 2002. However, on 2 June 2005 the applicant was detained by the Karuna Group (a break-away group from the LTTE believed to be working with the Sri Lankan armed forces) and the Criminal Investigation Department (CID) of the Sri Lankan police service on suspicion of involvement with an LTTE bombing the previous day. He was held in prison for six days and during this time he was beaten. Whilst in detention, the applicant had been forced to sign a confession and was ultimately released upon the payment of a bribe either by his brother-in-law or by his cousin’s husband.

On 22 June 2005 he travelled to Germany and claimed asylum. The German authorities refused his asylum claim and returned him to Sri Lanka on 3 December 2005. The applicant was arrested by the Sri Lankan authorities upon his arrival at the airport. He was detained for approximately fifteen days during which time he was beaten and forced to sign another confession confirming his involvement with the LTTE.

In August 2006 the applicant was forced to re-enlist with the LTTE. As he was married, his activities had been restricted to digging bunkers and he had not been allowed into battle. In May 2009, following the defeat of the LTTE, the applicant was corralled into an internment camp. His wife, children and one of his sisters were in the same camp. On 15 September 2009 he was arrested at the camp by the CID on account of his LTTE membership. Whilst in detention, he was ill-treated and forced to sign a confession. He was also asked to identify other members of the LTTE and had identified one other individual held at the internment camp. On 3 January 2010 his uncle, who was a wealthy man, organised his release from detention upon payment of a bribe.

The applicant left Sri Lanka on 11 January 2010. He travelled to India and thereafter through a number of unspecified countries before arriving in the United Kingdom on 30 January 2010. He entered the United Kingdom using a false Sri Lankan passport and claimed asylum on 1 February 2010 on the basis of the facts set out above.

The Secretary of State refused the applicant’s asylum claim on 26 March 2010. He did not accept that the applicant had been a member of the LTTE owing to, inter alia, his inability to provide accurate answers regarding LTTE history; to describe the weapons he had been allegedly trained to use; to give details about the ranks within the LTTE; or to accurately describe the LTTE flag. Furthermore, elements of the applicant’s account were found to be inconsistent with objective evidence. The Secretary of State therefore rejected the applicant’s account in its entirety.

The applicant appealed.

A medical report was prepared in advance of the appeal hearing. The report concluded that the applicant had scarring on his back and lower limbs which was “typical of the events described” and which, in the author’s expert opinion, was “caused intentionally by being tortured”. Moreover, the report stated that the apparent age of these scars was consistent with the applicant’s account. The report also noted that the applicant had further scars which were “less specific but did not show any inconsistencies with [his] description of events”.

The First-tier Tribunal (Immigration and Asylum Chamber) dismissed the applicant’s appeal on 21 May 2010. At the hearing, a witness for him had testified that in 2006 the applicant had been a lieutenant with the LTTE and had been working as a driver for them. However, the Tribunal found that there were a number of inconsistencies in the applicant’s account; that his asylum claim had already been rejected by the German authorities; that it was conceivable that he had submitted to scarring in order to bolster his asylum claim; and that in light of the applicant’s own discrepant account, no weight could be attached to the evidence of the witness. Therefore, the Tribunal concluded that the applicant had never been a member of the LTTE.

The First-tier Tribunal granted the applicant permission to appeal on 16 June 2010 on the grounds that it was arguable that the Judge had failed to put to the applicant the suggestion that he had deliberately inflicted scars on his person to bolster his asylum claim, and that the Judge had arguably erred in her conclusions regarding the applicant’s witness, given that the witness had been found to be credible in his own earlier asylum appeal.

On 30 September 2010 the Upper Tribunal found that the original Tribunal had erred in law in its treatment of the medical evidence (as to scarring on the body) and set aside that determination. Having itself heard the evidence of the applicant the Upper Tribunal then dismissed the applicant’s appeal de novo. The Upper Tribunal accepted that the applicant had been a member of the LTTE; that he had been ill-treated by the Sri Lankan authorities in the past; that he was a Tamil; that there was a previous record of his LTTE involvement; that he had signed a confession; that he had left Sri Lanka illegally; that he did not have an ID card; that he would be returned to Sri Lanka from London; that he had scarring; that he had made an asylum claim abroad; and that it was possible that he had cousins in the LTTE. However, the Upper Tribunal found that the applicant’s credibility had been damaged owing, not least, to inconsistencies lying at the core of his claim. Furthermore, it had some difficulty with, but did not reject, his account of his release in 2010 as a result of a bribe by a wealthy relative with whom he was no longer in contact. In this connection, it found that the applicant would not have been released on a bribe in 2010 unless the Sri Lankan authorities were convinced he was of no interest to them. Finally, the Upper Tribunal did not accept, in light of the prevailing circumstances in Sri Lanka at the time, that the applicant would be at risk upon return, having been at best a low-level LTTE member.

On 6 December 2010 the Upper Tribunal refused to grant the applicant permission to appeal. Further, on 25 January 2011 the Court of Appeal refused the applicant permission to appeal on the papers. On 11 August 2011, following an oral hearing, the Court of Appeal again refused the applicant permission to appeal. It had been argued on behalf of the applicant that there was nothing in the objective country evidence on Sri Lanka to suggest that an escape via bribery was incompatible with an ongoing interest by the authorities. Indeed, records would show that the applicant had confessed to LTTE involvement. It was also argued that the objective evidence did not support the contention that only high-level LTTE members would be targeted by the authorities. However, the Court of Appeal held that although it may have been possible to criticise aspects of the Upper Tribunal’s reasoning, it was not perverse, plainly wrong or otherwise procedurally irregular. There were no other “compelling” reasons requiring further consideration by the domestic courts.

B.  Relevant domestic law

1.  Asylum and human rights claims

Section 82(1) of the Nationality, Immigration and Asylum Act 2002, provides a right of appeal against an immigration decision made by the Secretary of State for the Home Department.

Appeals in asylum, immigration and nationality matters were, until 13 February 2010, heard by the Asylum and Immigration Tribunal. Since 14 February 2010, they have been heard by the First-tier Tribunal (Immigration and Asylum Chamber).

Section 11 of the Tribunals, Courts and Enforcement Act 2007 provides a right of appeal to the Upper Tribunal, with the permission of the First-tier Tribunal or the Upper Tribunal, on any point of law arising from a decision made by the First-tier Tribunal other than an excluded decision.

Section 13 of the Tribunals, Court and Enforcement Act 2007 provides a right of appeal to the Court of Appeal on any point of law arising from a decision made by the Upper Tribunal other than an excluded decision.

Section 2 of the Human Rights Act 1998 provides that, in determining any question that arises in connection with a Convention right, courts and tribunals must take into account any case-law from this Court so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen. Section 6(1) provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right.

2.  Country guidance determinations

Country guidance determinations of the previous Asylum and Immigration Tribunal (AIT) or of the current Upper Tribunal (IAC) are to be treated as an authoritative finding on the country guidance issue identified in the determination, based upon the evidence before the members of the Tribunal that determined the appeal. Unless expressly superseded or replaced by a later country guidance determination, country guidance determinations are authoritative in any subsequent appeals so far as that appeal relates to the country guidance issue in question and depends upon the same or similar evidence.

In the country guidance determination of LP (LTTE area - Tamils - Colombo - risk?) Sri Lanka CG [2007] UKAIT 00076, the AIT held, inter alia, that:

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.

These risk factors were subsequently endorsed by this Court in NA. v. the United Kingdom, no. 25904/07, 17 July 2008 and later reconfirmed domestically in the most recent country guidance case-law on Sri Lanka of TK (Tamils - LP updated) Sri Lanka CG [2009] UKAIT 00049.

COMPLAINT

The applicant complains that his removal from the United Kingdom would expose him to a real risk of ill treatment in breach of Article 3 of the Convention.

 




QUESTIOn TO THE PARTIES

In light of the risk factors accepted by the domestic authorities, would the applicant’s removal to Sri Lanka breach Article 3 of the Convention?