ON APPEAL FROM
UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
UPPER TRIBUNAL JUDGES GLEESON, DAWSON AND O'CONNOR
AA/12647/2011, AA/03791 and AA/02916/2009
Strand, London, WC2A 2LL
B e f o r e :
Vice President of the Court of Appeal, Civil Division
LORD JUSTICE ELIAS
LORD JUSTICE UNDERHILL
| MP (Sri Lanka)
NT (Sri Lanka)
|- and -
|The Secretary of State for the Home Department
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Raza Husain, Rudolph Spurling and Sara Anzani (instructed by HK Solicitors) for NT
Jonothan Hall and Will Hays (instructed by Treasury Solicitors) for the Respondent
Ms Parosha Chandran and Shivani Jegarajah (instructed by Wilsons Solicitors) for the Intervener (Tamils against Genocide)
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Lord Justice Maurice Kay:
"The LTTE is now a spent force within Sri Lanka and considered unlikely to rise again from within the unitary Sri Lanka, which is tightly controlled by the Sri Lankan security forces. The perceived risk against which the government of Sri Lanka (GOSL) works now concerns the possibility of LTTE resurgence and efforts to restart the internal armed conflict, from outside Sri Lanka, led by diaspora activists. The GOSL no longer relies principally on checkpoints and searches; its approach is intelligence-led and it has sophisticated extensive intelligence as to those who are seeking to destabilise the unitary state, within the diaspora and in Sri Lanka itself. "
In order to produce guidance to meet the changed circumstances, the UT considered a vast amount of material, including Eligibility Guidelines which had been produced by the UNHCR in December 2012 (the UNHCR Guidelines) and the evidence of experts, including Professor Anthony Good, Dr Chris Smith and others. The hearing took place over nine days. Approximately 5000 pages of documentary evidence were considered. The determination of the UT is a formidable piece of work running to 457 paragraphs plus a further 100 pages of Appendices.
"356. Having considered and reviewed all the evidence, including the latest UNHCR guidance, we consider that the change in the GOSL's approach is so significant that it is preferable to reframe the risk analysis for the present political situation in Sri Lanka. We give the following country guidance:
(1) This determination replaces all existing country guidance on Sri Lanka.
(2) The focus of the Sri Lankan government's concern has changed since the civil war ended in May 2009. The LTTE in Sri Lanka itself is a spent force and there have been no terrorist incidents since the end of the civil war.
(3) The government's present objective is to identify Tamil activists in the diaspora who are working for Tamil separatism and to destabilise the unitary Sri Lankan state enshrined in Amendment 6(1) to the Sri Lankan Constitution in 1983, which prohibits the 'violation of territorial integrity' of Sri Lanka. Its focus is on preventing both (a) the resurgence of the LTTE or any similar Tamil separatist organisation and (b) the revival of the civil war within Sri Lanka.
(4) If a person is detained by the Sri Lankan security services there remains a real risk of ill-treatment or harm requiring international protection.
(5) Internal relocation is not an option within Sri Lanka for a person at real risk from the Sri Lankan authorities, since the government now controls the whole of Sri Lanka and Tamils are required to return to a named address after passing through the airport.
(6) There are no detention facilities at the airport. Only those whose names appear on a "stop" list will be detained from the airport. Any risk for those in whom the Sri Lankan authorities are or become interested exists not at the airport, but after arrival in their home area, where their arrival will be verified by the CID or police within a few days.
(7) The current categories of persons at real risk of persecution or serious harm on return to Sri Lanka, whether in detention or otherwise, are:
(a) Individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they are, or are perceived to have a significant role in relation to post-conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka.
(b) Journalists (whether in print or other media) or human rights activists, who, in either case, have criticised the Sri Lankan government, in particular its human rights record, or who are associated with publications critical of the Sri Lankan government.
(c) Individuals who have given evidence to the Lessons Learned and Reconciliation Commission implicating the Sri Lankan security forces, armed forces or the Sri Lankan authorities in alleged war crimes. Among those who may have witnessed war crimes during the conflict, particularly in the No-Fire Zones in May 2009, only those who have already identified themselves by giving such evidence would be known to the Sri Lankan authorities and therefore only they are at real risk of adverse attention or persecution on return as potential or actual war crimes witnesses.
(d) A person whose name appears on a computerised "stop" list accessible at the airport, comprising a list of those against whom there is an extant court order or arrest warrant. Individuals whose name appears on a "stop" list will be stopped at the airport and handed over to the appropriate Sri Lankan authorities, in pursuance of such order or warrant.
(8) The Sri Lankan authorities' approach is based on sophisticated intelligence, both as to activities within Sri Lanka and in the diaspora. The Sri Lankan authorities know that many Sri Lankan Tamils travelled abroad as economic migrants and also that everyone in the Northern Province had some level of involvement with the LTTE during the civil war. In post-conflict Sri Lanka, an individual's past history will be relevant only to the extent that it is perceived by the Sri Lankan authorities as indicating a present risk to the unitary Sri Lankan state or the Sri Lankan Government.
(9) The authorities maintain a computerised intelligence-led "watch" list. A person whose name appears on a "watch" list is not reasonably likely to be detained at the airport but will be monitored by the security services after his or her return. If that monitoring does not indicate that such a person is a Tamil activist working to destabilise the unitary Sri Lankan state or revive the internal armed conflict, the individual in question is not, in general, reasonably likely to be detained by the security forces. That will be a question of fact in each case, dependent on any diaspora activities carried out by such an individual.
(10) Consideration must always be given to whether, in the light of an individual's activities and responsibilities during the civil war, the exclusion clauses are engaged (Article 1F of the Refugee Convention and Article 12(2) of the Qualification Directive). Regard should be had to the categories for exclusion set out in the "Eligibility Guidelines For Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka", published by UNHCR on 21 December 2012.
The generic grounds of appeal
The UNHCR Guidelines
"43…The Court must assess all the evidence affording such weight to different pieces of evidence as it thinks fit. No principle of international or domestic law dictates any different approach. The authorities which demonstrate the considerable respect which the Court affords to UNHCR material are entirely consistent with the conventional view that questions of weight are for the Court…
44. There is, in my view, no justification for conferring… presumptively binding status on UNHCR reports merely because of their source."
"All claims…need to be considered on their individual merits…More specifically, the possible risks facing individuals with the profiles outlined below require particularly careful examination. UNHCR considers that individuals with these profiles – though this list is not exhaustive – may be, and in some cases are likely to be in need of international refugee protection, depending on the individual circumstances of this case."
A list of eight groups then followed, of which the first five received the specific attention of the UT in the present case. They were:
"(i) persons suspected of certain links with the …LTTE;
(ii) certain opposition politicians and political activists;
(iii) certain journalists and other media professionals;
(iv) certain human rights activists;
(v) certain witnesses of human rights violations and victims of human rights violations seeking justice."
In the UT it was accepted on behalf of the Secretary of State that those who were detained were likely to be ill-treated.
"…previous (real or perceived) links that go beyond prior residency within an area controlled by the LTTE continue to expose individuals to treatment which may give rise to a need for international refugee protection, depending on the circumstances of the individual case. The nature of these more elaborate links to the LTTE can vary, but may include people with the following profiles:
1) Persons who held senior positions with considerable authority in the LTTE civilian administration, when the LTTE was in control of large parts of what are now the Northern and Eastern Provinces;
2) Former LTTE combatants or ' cadres';
3) Former LTTE combatants or 'cadres' who, due to injury or other reason, were employed by the LTTE in functions within the administration, intelligence, 'computer branch' or media…;
4) Former LTTE supporters who may have never undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE;
5) LTTE fundraisers and propaganda activists and those with, or perceived as having had, links to the Sri Lankan diaspora that provided funding and other support to the LTTE;
6) Persons with family links or who are dependent on or otherwise closely related to persons with the above profiles
When assessing claims of persons with the profiles above, it may, depending on the individual circumstances of the claim, be important to examine the applicability of the exclusion clauses. "
"the effect of that passage is that these categories remain fact-specific. We shall set out later, in the light of the wide-ranging expertise we have heard and read, what we consider to be the fact-specific risk groups, some of which overlap with the general categories set out in the UNHCR guidelines…"
It is plain that the guidance expounded by the UT at paragraph 356, set out at paragraph 2 above, does not simply recycle the UNHCR text.
"396. Given the close connections the appellant's family had with Prabhakaran, and his irregular exit from Sri Lanka, we are satisfied that he is a person with what the UNHCR Guidelines describe as 'more elaborate links with the LTTE' and that there remains a real risk that he would be of interest on return….
397. The authorities within Sri Lanka have knowledge of the appellant's previous role within the LTTE, and in particularly his significant involvement in the LTTE's finance wing and its fuel supply. This, coupled with his sister's close connections to the former leader of the LTTE, his pro-Tamil separatist activities in the United Kingdom, and the nature of the enquiry made by the Sri Lankan authorities with the appellant's family since his departure from his homeland, lead us to conclude that it is reasonably likely that the Sri Lankan authorities perceive the appellant as having a significant role in relation to post-conflict Tamil separatism within the diaspora."
Plainly, the UT was not seeking to distance itself from the UNHCR's concept of "more elaborate links with the LTTE".
"430….We must ask ourselves…whether, having regard to his known low-level activities during the conflict (bunker digging and transporting the wounded), there is a real risk that [he] will be perceived as a diaspora activist with a significant role in diaspora activities designed to destabilize the unitary Sri Lankan state and revive the internal armed conflict."
It answered that question in the negative and dismissed his appeal without reference to the UNHCR's "more elaborate links" criteria, although it accepted that there would be a record of his detention and a relative remained in a prison for high-risk LTTE personnel.
"447. [He] is a person with an LTTE history and with what the UNHCR Guidelines refer to as "more elaborate links" to the LTTE (if the account of his missing brother is accepted). He has another brother who is a successful asylum seeker on LTTE and suicidality grounds. He bears both combat and torture marks on his body, but he was released in 2002 and seems to have been of no further interest to the authorities in Sri Lanka thereafter.
448. Since arriving in the United Kingdom, this appellant has taken no part, still less a significant role, in United Kingdom diaspora activities: he is not reasonably likely to be perceived as a person seeking to destabilise the single Sri Lankan state or revive the internal armed conflict. We remind ourselves that the GOSL has sophisticated sources of intelligence and would be aware of this lack of involvement, certainly by the time a travel document is issued. There is no real risk that this appellant falls within the new country guidance set out in this determination. "
As I read that reasoning, my impression is that the UNHCR's "more elaborate links" were considered as risk factors but were of little or no consequence because they did not equiparate with paragraph 356 (7) of the UT's guidance.
"Previous (real or perceived) links that go beyond prior residency within an area controlled by the LTTE continue to expose individuals to treatment which may give rise to a need for international refugee protection, depending on the specifics of the individual case. The nature of those more elaborate links to the LTTE can vary, but may include people with the following profiles…"
The six criteria set then follow. The implication appears to be that whilst all cases are fact-sensitive, someone with an elaborate link or a combination of elaborate links might be judged for that reason alone to be at risk, whether or not they satisfy the test in paragraph 356(7). Nowhere do the UNHCR Guidelines relate these criteria to "a significant role in relation to post-conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka".
"303. The GOSL is reasonably confident that there is a low risk of resurgence of the internal armed conflict from within Sri Lanka. Its concern is with the risk of resurgence coming from the diaspora, of which London, Paris, Toronto and Oslo are major centres ('the diaspora hotspots'). There are approximately one million Tamils outside Sri Lanka, mostly in the diaspora hotspots.
311…. The majority of the examples which the parties produced of those who were ill-treated on return, were of persons who had significant LTTE links (whether direct or familial). The evidence is that although LTTE cadres were screened out and rehabilitated in May 2009, the government's concern now is not with past membership or sympathy, but with whether a person is a destabilising threat in post-conflict Sri Lanka.
318. Professor Gunaratna's opinion, which we accept, is that there has been a qualitative change in the purpose of the rehabilitation programme between 2009 and now. The government's concern now relates to those who may be associated with attempts to destabilise the unitary Sri Lanka by reviving the LTTE within the diaspora.
325. It is not established that previous LTTE connections or sympathies (whether direct or familial), are perceived by the GOSL as indicating now that an individual poses a destabilising threat in post-conflict Sri Lanka…
342…The risk of LTTE resurgence does not come from within Sri Lanka now…
345…In practice, all of those who lived in areas where the LTTE was the de facto government during certain periods of the civil war will have LTTE connections…
349. The rehabilitation process was applied to all identified LTTE cadres at the end of the civil war. That is not its purpose now: it is used where a person is considered to be involved in possible resurgence of the LTTE or contacting the active diaspora. Sri Lankan Tamils returning from the diaspora who did not undergo rehabilitation during 2009-11 are not for that reason at risk now, unless they can be shown to come within the risk factors presently identified."
It was these features which led the UT to conclude that there had been "real changes" since the LP/TK factors were propounded and that the general picture is as described in paragraph 354 (set out at paragraph 2 of this judgment).
No change since TK
"…where a previous assessment has resulted in the conclusion that the population generally or certain sections of it may be at risk, any assessment that the material circumstances have changed would need to demonstrate that such changes are well established evidentially and durable."
In the present case, the position on the ground in Sri Lanka had changed dramatically since the earlier country guidance. When TK was decided, the protracted civil war had only recently ended. The new guidance in the present case came three years later. No doubt some people who were in need of protection in 2009 and 2010 remained in need of protection in 2013. However, it is fanciful to suggest that there had not been significant changes in the intervening years. The UNHCR plainly thought that there had been. That is why the 2010 Eligibility Guidelines were revised in December 2012. It is not surprising that, in the present case, the UT was influenced by the approach of the UNHCR. The changes in the Eligibility Guidelines:
"[contribute] to our view that now is the time for the [UT] to revise its guidance on Sri Lanka." (paragraph 47).
It added (at paragraph 48):
"We considered that it was appropriate, in the light of the perceived changes and new UNHCR guidance, for the [UT] to reassess its own guidance on Sri Lanka. We wanted to consider whether the situation remained as it had been in TK, that is to say that the country is settling down into a peaceful recovery from a long and brutal civil war, or whether the situation in Sri Lanka was indeed deteriorating as suggested and new guidance was needed. For the reasons we have set out in this determination, we have concluded that the guidance needs to be replaced on the basis of the situation now."
Political activities in the diaspora
"We do not consider that attendance at demonstrations in the diaspora alone is sufficient to create a real risk or a reasonable degree of likelihood that a person will attract adverse attention on return to Sri Lanka."
And paragraph 351:
"Attendance at one, or even several demonstrations in the diaspora is not of itself evidence that a person is a committed Tamil activist seeking to promote Tamil separatism within Sri Lanka."
The issue here is not that of the politically indifferent who seek to bolster an asylum claim by opportunist participation in sur place demonstrations in the hope of being photographed and perceived as suspicious (as to which, see, for example, KS (Burma) v Secretary of State for the Home Department  EWCA Civ 67). The concern is with genuine diaspora demonstrators who may be put at risk on return as a result of surveillance and video recording or photography.
"27….Given that the contents of the …analysis are not in dispute, we have had regard to the information there summarised.
28. The weight that we give to this evidence is shaped by our conclusion that the underlying determinations are not admissible. At best this data is reliable as evidence that a number of appeals by Sri Lankan nationals have been allowed in the light of country guidance which we are reconsidering.
29. The fact of the appeals having been allowed indicates that certain past ill-treatment by the Sri Lankan authorities was accepted by Tribunal judges in individual cases. The data is part of a wide range of evidence that we have heard and read; this assists us in examining the situation today. However, had there been any dispute as to the contents of the tabular analysis, we would have excluded it for the same reasons as we have excluded the determinations from which that material was drawn."
I have to say that these paragraphs are not easy to follow. I think they mean that (1) the tribunal determinations were treated as inadmissible but (2) the tabulated analysis of them, being undisputed, was given some weight and was found to be of some assistance.
The treatment of NGO evidence
Witnesses of war crimes
"Between 40,000 and 100,000 Tamil civilians died in government-designated NFZs [No-Fire Zones] in the final days of the civil war in May 2009. There were three successive NFZs, progressively smaller and moving further east. Supplies of both food and water in NFZs were inadequate. Shelling of the field hospital at Mullaivaikkal caused many deaths. The GOSL has consistently blamed the LTTE for the deaths; the Tamil community attributes the deaths to the action of the GOSL. The GOSL continues to describe this [as] a period when they were seeking 'humanitarian' protection of those in the NFZs, but its account is overwhelmingly rejected in the material we have seen…"
The guidance contained in paragraph 356 (7) (c) protects:
"Individuals who have given evidence to the Lessons Learned and Reconciliation Commission [which reported in November 2011] implicating the Sri Lankan authorities in alleged war crimes."
However, the protection is limited to:
"those who have already identified themselves by giving such evidence,"
because only they would be known to the Sri Lankan authorities
"and therefore only they are at real risk of adverse attention or persecution on return as potential or actual war crime witnesses."
Thus, the protected group are those who gave evidence to the LLRC before arriving in this country and who would, if now returned, be at real risk of persecution as a result of their having given evidence.
Conclusion on the generic grounds of appeal
The individual appeals
"(i) This appellant was rounded up with others including his parents and taken to Chettikulam Camp, where he was rapidly identified as an LTTE cadre and moved to Anuradhapura Camp, where conditions were worse. His parents were not moved and were released quickly.
(ii) [He] was not ill-treated while at Chettikulam Camp; if it was there that he signed the Sinhalese document or documents, we consider that indicates that it (or they) was probably a benign document (perhaps a release or transfer to Anuradhapura Camp), not a confession;
(iii) [His] evidence that he signed such a document both on his arrival and after his release indicates to us that it is reasonably likely that this was a form of record keeping of his entry and exit from the camp;
(iv) [He] did not sign any confession or adverse document in Anuradhapura Detention Camp;
(v) He was released informally after payment of a huge bribe to the CID at Anuradhapura and left Sri Lanka on a passport to which he was not entitled."
Having considered that and other evidence the UT concluded (paragraph 426):
"We have considered what interest the authorities might have in this appellant today. It is not suggested that [he] is among those in the London diaspora who are actively seeking to destabilise the single Sri Lankan state. The appellant was not a fighter; his activities for the LTTE did not include weapon training; he was a bunker digger and transporter of the wounded. One of [his] brothers is among those who disappeared in the closing days of the civil war and is presumed dead. "
The UT noted that his cousin, who was in the LTTE, "is still in detention four years after the civil war". It further noted that the appellant would be returning from London, a diaspora hotspot. Its ultimate conclusion was stated in these terms (paragraph 430):
"Given the sophisticated intelligence available to the Sri Lankan authorities, within and without Sri Lanka, we consider that they will know what separatist activities he undertook in Sri Lanka and what his activities have been in the United Kingdom. We must ask ourselves, therefore, whether having regard to his known low level activities during the conflict (bunker digging and transporting the wounded), there is a real risk that [he] will be perceived to be a diaspora activist with a significant role in diaspora activities designed to destabilise the unitary Sri Lankan state and revive the internal armed conflict."
The UT considered it possible that his name may appear on a "watch" as opposed to the "stop" list on the airport computers. It also referred to the fact that he had not taken "any part, still less a significant part, in Tamil separatist activity in the United Kingdom". In all these circumstances, it continued (paragraph 433):
"We do not consider, on the facts we have found, that [he] has established that there is a real risk, or that it is reasonably likely, that the Sri Lankan authorities would now regard him as a threat to the integrity of Sri Lanka as a single state. We do not consider that he would be perceived as having a significant role in relation to post conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri lanka."
On this basis, his appeal was dismissed.
"it appears from the evidence that [he] was not of sufficient concern in 2009 to be one of the 11,000 active LTTE cadres who were considered to require re-education through the 'rehabilitation' programme before being reintroduced into Sri Lankan civil society."
This inference also played a part in the UT's scepticism about evidence from his mother that the security forces had visited the family home looking for the appellant and describing him as an escapee and "hard core LTTE member". The UT (paragraph 422) referred to the appellant not having been put into the rehabilitation programme in 2009 as having some significance and justifying scepticism in relation to the mother's evidence.
Article 2 (e): " 'person eligible for subsidiary protection' means a third country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds had been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15…and is unable, or, owing to such risk, unwilling to avail himself or herself of protection of that country."
Article 15: " 'serious harm' consists of:
(a) Death penalty or execution; or
(b) Torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or
(c) Serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict."
The submission of behalf of MP is a simple one. By reason of his Article 3 success he has been found to be a victim or potential victim of "inhuman or degrading treatment" as those words form the essence of Article 3 of the ECHR. If returned to Sri Lanka he would face a real risk of suffering serious harm as defined in Article 15. He is therefore "eligible for subsidiary protection" pursuant to the Qualification Directive. A recipient of subsidiary protection is essentially in the same position as a successful applicant for asylum in relation to eventual settlement and in other respects.
"Those third country nationals or stateless persons who are allowed to remain in the territories of the Member States for reasons not due to a need for international protection but on a discretionary basis on compassionate or humanitarian grounds, fall outside the scope of this Directive."
"…in such cases the alleged future harm would emanate not from the intentional acts or omissions of public authorities or non-state bodies, but instead from a naturally occurring illness and the lack of sufficient resources to deal with it in the receiving country."
Mr Husain seeks to circumnavigate this by holding the Sri Lankan authorities responsible for MP's post traumatic stress disorder and depression, together with the resultant suicide risk. However, in my judgment that is to stretch the concept too far. I am satisfied that the Qualification Directive does not do that. Accordingly, I would dismiss MP's appeal in relation to asylum and humanitarian protection. He remains properly protected under Article 3.
Lord Justice Elias:
Lord Justice Underhill: