England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		24th February 2006

1. MR JUSTICE MUNBY: This is an application for judicial review, pursuant to permission granted by Walker J on 30th June 2005, of a decision by the Secretary of State to certify as clearly unfounded a claim for asylum by a Sri Lankan.
2. There has been debate before me as to whether he was ever formally a member of the LTTE. That seems to me, for immediate purposes, besides the point. In his case, the evidence sets out clearly an account of working for the LTTE as a low-level intelligence operative in circumstances where, in terms of the risks he might face from his former paymasters or employers, it would not seem to matter very much whether or not he was, as it were, a card-carrying member of the LTTE.
3. If he is returned to Sri Lanka by the Secretary of State, it will be to Colombo and the question in this case, as in a number of similar cases which have been before this court in recent months, is whether the risks which somebody of his characteristics may face in Colombo are such as to give rise to at least an arguable claim for the protection of the Geneva Convention or whether, as the Secretary of State has certified in this as in other similar cases, that claim is clearly unfounded because the risk, if there is any risk at all, is vanishingly small.
4. I need not go through the well-known authorities in detail. For present purposes, it suffices if I mention four. There is first the decision of the Tribunal in PS v Secretary of State for the Home Department CG [2004] UKIAT 00297. There is, secondly, the decision of Mitting J in Sinnarasa v Secretary of State for the Home Department [2005] EWHC 1126. There is, thirdly, the very recent decision of the Court of Appeal in Nadanasikamani v Secretary of State for the Home Department [2005] EWCA Civ 1666 and, even more recently, and indeed within the last three weeks, there is my own decision in Yogachandran v Secretary of State for the Home Department [2006] EWHC 392 (Admin).
5. PS was a country guidance case, the essential reasoning and conclusions of which have been repeatedly applied by judges in this court and which were endorsed less than a month ago by the Court of Appeal in the case I have mentioned. The decision of Mitting J may have added a gloss to the decision of the Tribunal in PS in as much as he recognised that there could be cases falling outside the categories identified by the Tribunal in PS where it was not open to the Secretary of State to certify the claim. Sinnarasa itself was such a case. It was a case in which, on balance and with some hesitation, Mitting J was persuaded that, due to a combination of circumstances, the claim for judicial review succeeded.
6. Sinnarasa, as it were, viewing such cases from the perspective of the asylum seeker, marks the present high watermark. But whilst recognising the potential dangers of comparing the facts of different cases, because each case must, of course, be determined on its own particular facts, and without going into a detailed analysis of the facts in Sinnarasa, it is apparent that the combination of factors which together just sufficed in Sinnarasa are absent in the present case, just as they were absent in the previous case I had to deal with.
7. Ms Weston, whilst making no formal concessions, recognises the reality of that, and the essential thrust of her submissions today has been founded on the assertion that evidence which she has laid before me, and which has not previously been considered, so far as I am aware, by any of the judges who have recently had to consider this matter, shows that the situation in Sri Lanka and in particular in Colombo has been, is, and continues to be rapidly deteriorating, such that, so she submits, it is at least arguable that her client had a claim which cannot properly be categorised as clearly unfounded.
8. The two pieces of evidence upon which Ms Weston relies in particular are first of all a recent report by Amnesty International, issued, as I understand it, on 3rd February 2006 and headed "Sri Lanka: A Climate of Fear in the East". I need not go through that report in detail. It does indeed indicate, as its opening line asserts, that the human rights situation in eastern Sri Lanka has deteriorated dramatically over the last two years. It is based in large measure upon an investigation conducted by an Amnesty International delegation which visited the east of Sri Lanka in August 2005. That is almost a year after the Tribunal had reached its decision in PS.
9. I do not pass over that report. And I recognise, as Ms Weston pointed out, that Amnesty International, for example, record having received regular reports of abductions of adults by the LTTE since 2000, those abducted having mostly been Tamil civilians whom the LTTE suspects of working against it or whom it wishes to interrogate. The report continues that some victims of abduction have told Amnesty International they have been taken to LTTE camps and subjected to ill treatment. Importantly, from Ms Weston's point of view, the Amnesty report also indicates local sources having told them that the actual number of abductions is far higher than reported, as many family members do not report abductions, seeking to deal instead directly with the LTTE. However, as Ms Chan on the part of the Secretary of State points out, the focus of the Amnesty report, as its very title makes clear, is the deteriorating state of affairs in the east of Sri Lanka, and I am concerned with the state of affairs in Colombo.
10. More significant, and indeed in truth the foundation of Ms Weston's case, is a report produced by Dr Chris Smith, formerly of the International Policy Institute, King's College London, and now an associate fellow of the Royal Institute of International Affairs, popularly known as Chatham House. It is apparent from his report that Dr Smith is an academic of distinction who is not merely an academic but who also has very detailed knowledge of events on the ground in Sri Lanka. His most recent fact-finding visit there was in October 2005. He tells us in his report that he has been a frequent visitor there and has spent approximately a quarter of his time in that country over the past three years. Importantly for present purposes, he also spells out that his report is based significantly upon interviews conducted and knowledge acquired during his recent visits, those interviews often being from sources that can unequivocally be considered sensitive, with the consequences that he considers his information to be often better and more up-to-date than information available from the standard secondary sources and websites. He also makes the important point, which we have already seen from the Amnesty International report, that much of the information which he seeks to lay before the Secretary of State, and now this court, is not to be found on websites or in newspapers or other publicly available sources.
11. Dr Smith is, he says, "keen to stress that the situation in Sri Lanka continues to deteriorate rapidly and on a daily basis". He asserts that the LTTE has used the peace process to deploy across the entire country "but especially in Colombo". In one of the central paragraphs of his report, at paragraph 77, having referred to the decision of the Tribunal in PS, he continues:

"Since then the situation across Sri Lanka and including Colombo has deteriorated markedly, a point made consistently but in several different ways throughout this report. Overall, the instances of Colombo based violence I have cited (see below) suggests that threats and vulnerability are no longer confined to those groups identified by 'PS' and, moreover, there are vulnerable groups that 'PS' overlooks. Obviously, the greater the profile and seniority of an individual that is involved with the LTTE, the government, the security forces and Karuna, the greater the risk of becoming a victim. However, 'ordinary' Tamils also appear now to be victims to a greater extent than at the time when the 'PS' Determination was made."

In paragraph 78, he says:

"... it would appear that the level of vulnerability for the Appellant is somewhat greater than it would have been in October 2004 when the 'PS' Determination was made."

12. In paragraph 80, he expresses his general view of the decision in PS:

"... it is now somewhat dated and the security situation in Colombo has deteriorated unequivocally since October 2004 and is unlikely to improve into the foreseeable future."

In paragraph 82, he says:

"The Immigration Judge and the Secretary of State should also be aware of the numerous reports that indicate a continuing deterioration with almost daily killings involving LTTE, Sri Lankan intelligence and Karuna dissidents, particularly in Colombo as in the east of the Country."

13. Addressing the particular position of the appellant, Dr Smith in paragraph 82 of his report, says this:

"If the Appellant is compelled to return to Colombo ... he risks become caught up, as a Tamil and as an ex-LTTE cadre who was both an informant - albeit unwilling and unsuccessful - on the one hand and an intelligence officer on the other..."

In paragraph 89, Dr Smith says:

"The Appellant's role as an intelligence gatherer should also be considered. His role was relatively low-level. However, the LTTE are known to be exceptionally sensitive about what happens to former intelligence operatives. If their role has been significant, they are not allowed to leave the 'uncleared' areas under LTTE control. If he is suspected of having been a double-agent for PLOTE the LTTE will have an extreme adverse interest in the Appellant. His disappearance after having served as an intelligence operator can only increase the LTTE's adverse interest in him. If detained by the LTTE he will be extremely vulnerable and, certainly, his life will be in danger."

14. That analysis by Dr Smith needs to be assessed against the background, first, of the facts of the particular case and, secondly, in the light of the various specific incidents in Colombo and elsewhere, to which he draws attention in paragraph 82 of his report.
15. An important part of the claimant's case is that he was not merely, albeit at a comparatively low level, an intelligence operative for the LTTE. He is somebody, he asserts, who has actually been identified and targeted by the LTTE as someone who may no longer be in their favour. Ms Weston therefore seeks to distinguish him not merely from the general body of Tamils who may find themselves in the wrong place at the wrong time, and even from the general body of former members or operatives of the LTTE who have severed their links with the organisation. He is someone who, on his account, has actually been identified and questioned by them in the comparatively recent past, well after the peace process began and, in fact, towards the end of 2004. Moreover, his account includes a description of how, a month or two later in December 2004, his deputy from his shop was shot dead. The significance of the fact that, according to his account, the claimant has been identified and questioned by the LTTE, is borne out by paragraph 83 of Dr Smith's report in the way he describes the LTTE as having a database, including details of its supporters, members and associates.
16. The heart of Dr Smith's report, and in reality, if Ms Weston will allow me to say this, the heart of the present application for judicial review, is, as it seems to me, the catalogue of incidents referred to by Dr Smith in paragraph 82 of his report. Part of the context in which these need to be considered is the meticulous analysis by the Tribunal in PS of the incidents down to October 2004 which had taken place in Colombo, and also the further incidents since the date of the decision of the Tribunal in PS, which have been considered either by Mitting J in Sinnarasa or by myself in Yogachandran. The significance of the incidents which were analysed by the Tribunal in PS was, as the Tribunal recognised, twofold.
17. First, it enabled the Tribunal to identify categories of persons who were at particular risk. Those categories, of course, are not exclusive. Cases of this sort are not to be determined by whether or not the particular claimant can be pigeonholed in some predetermined classification system. Cases have to be decided upon their own specific facts and the significance of Mitting J's decision in Sinnarasa is indeed to demonstrate that there may be cases which cannot properly be certified, even though they fall outside the PS categorisation. The fact that the claimant in this case does not fall within the PS categorisation is relevant and may be significant but it is certainly not determinative.
18. The other important aspect of the Tribunal's analysis in PS was its identification of the comparatively very small number of incidents and the very small number of deaths which had in fact been occasioned over the period which it was considering, when contrasted with some hundreds of thousands of Tamils who by then were living in and around Colombo. The incidents which the Tribunal in PS considered and analysed were of the order of magnitude of 20 or so incidents or 20 or 30 deaths. That, in a sense, is part of the context, part of the background against which, as it seems to me, one has to assess Dr Smith's report.
19. I do not go through his list. It is set out, as I have said, in paragraph 82 of his report but these observations are, I think, appropriate.
20. For present purposes, I take the information set out in this part of his report as true and accurate. It may, of course, be that, if this matter went to a Tribunal and Dr Smith was cross-examined, a different picture would emerge, but since this is a certification case I take the facts as he sets them out as true. There are three things about his list which are for present purposes significant. One is that some of the incidents to which he refers have nothing to do with Colombo at all. A significant number, on the other hand, are incidents which took place in Colombo and are therefore directly relevant. The second point is that, although a significant number of the incidents which did take place in Colombo appear to have involved either the LTTE either as the assailant or the victim, it is very far from clear from what Dr Smith tells us of those incidents that any or any significant number of them are in fact incidents where the victims would fall outside one or other of the categories identified by the Tribunal in PS.
21. The third thing which was significant is the comparatively limited number in absolute terms of the incidents which Dr Smith describes. Now, Ms Weston, appropriately if I may say so, cautions me against too vigorous a tallying-up of the numbers. She makes the point, which for present purposes I entirely accept, that there is, as I have mentioned, very significant under-reporting of such incidents. But as to that, I would make this observation: the point being made by the Tribunal in PS was not that because there were only 25 deaths amongst the Tamil population of 400,000 or 450,000 that the risk was a risk to be evaluated arithmetically by a comparison of 25 with 450,000, but that the order of magnitude was very small indeed. Putting the same point the other way round, however much one inflates Dr Smith's list having regard to under-reporting, one is, it seems to me, concerned with numbers which overall are, on any basis, almost vanishingly small when contrasted with the overall population, not of Tamils in Colombo but of former members, operatives or associates of the LTTE in Colombo, that being, of course, the relevant and true comparison.
22. In relation to that last point, it is also highly relevant, it seems to me, to look briefly at the South Asia Terrorism Portal relied upon by Ms Chan, identifying incidents involving the LTTE. That is a long catalogue of incidents in reverse chronological order, the most recent being as recent as 26th January 2006. The catalogue, which goes back to the year 2000, with a tailpiece covering the previous 25 years, is long. It is distressingly long but, as Ms Chan was able to demonstrate, it contains, whether in percentage terms or in absolute terms, a very small number of incidents over the last three or four years which have taken place in Colombo.
23. Because this is a certification case, I have to proceed, as the Secretary of State has to proceed, on the basis that the claimant's factual case might be true. I proceed, as it seems to me the Secretary of State was required to proceed, on the basis that Dr Smith's report, insofar as it sets out specific matters by way of reference to the particular incidents, may be accurate and therefore, for immediate purposes, has to be treated as being accurate. It seems to me that the present case involves the answer to this simple question: is there material, and particularly is there material in the Amnesty International report and more specifically in Dr Smith's report, which at least arguably demonstrates that the claimant may be at risk if returned to Colombo, such that the claim is not clearly unfounded and such that the Secretary of State is not entitled to certify? That same question can be posed in a slightly different form: is it open to the claimant, in the light in particular of the Amnesty International report and Dr Smith's report, to assert that, at least arguably, things have sufficiently moved on since the Tribunal decided PS as to deprive the Secretary of State of the ability to say that this claim was clearly unfounded?
24. I accept the accuracy for present purposes of the specific matters referred to by Dr Smith in his report. I equally accept, without reservation, the accuracy for present purposes of his more generalised description of the deteriorating circumstances, not merely in Sri Lanka generally but more specifically in Colombo. The situation is plainly deteriorating and continuing to deteriorate. I accept, at least arguably, because that suffices for present purposes, that the degree of risk is correspondingly increasing. In particular, I am prepared to accept for present purposes that there may have been, and there are indications that there will continue to be for the foreseeable future, some increase in the degree of risk to low-level LTTE personnel.
25. But at the end of the day, the question is whether, having regard to the totality of the material before the Secretary of State, including in particular and very importantly the Amnesty International report and Dr Smith's report, it was still open to the Secretary of State to conclude as he did, as recently as in his final decision letter dated 22nd February 2006, that the claimant's claim was clearly unfounded. In my judgment, the Secretary of State was entitled to reach that conclusion.
26. The picture is a developing one. Things have undoubtedly (I say undoubtedly meaning undoubtedly for the purpose of an application such as this) developed and moved on since the Tribunal decided PS. If matters in Colombo continue to deteriorate in the way described by Dr Smith, then it may be that the time will come when the reliance that can be placed upon the decision in PS will properly diminish and it may be the time will come when the decision in PS will no longer be a safe guide to certification cases such as this. That is speculation and, of course, in part it is dependent on the extent to which Dr Smith's predictions for the future turn out to be correct. But I am concerned with a comparatively narrow question, namely whether the Secretary of State was entitled, despite what was said by Dr Smith, to conclude as he did in this case.
27. Even in a certification case, and even in the case of an expert of the obvious expertise and integrity of Dr Smith, the Secretary of State is not compelled to accept every pronouncement by an expert. The more general, unsourced and unparticularised the report, the easier it may be for the Secretary of State to say that a case is clearly unfounded; the more detailed, sourced and particularised the report, the more significant the report will be. In the present case, it seems to me that, accepting the report, as for present purposes I am entirely happy to do, and taking it at its highest in favour of the claimant (which is what Ms Chan on behalf of the Secretary of State invited me to do), Dr Smith's report does not, either on its own or in conjunction with the Amnesty International report, or indeed in conjunction with the totality of the material, demonstrate that the claimant here has a case which could succeed were it to be put before an immigration judge.
28. The situation in Colombo, described and reported upon by Dr Smith, no doubt indicates a deterioration in circumstances since the Tribunal decided PS. But, even taking Dr Smith's report at its highest in favour of the claimant, it does not, in a case of this type, nor does it in this particular case, invalidate the essential thrust of the reasoning of the Tribunal in PS.
29. At the end of the day, the question, as in all such cases, is risk and, even taking Dr Smith's report at its highest, I am afraid that neither that report nor the rest of the material suffices, in my judgment, to demonstrate an arguable case on risk sufficient to deny the Secretary of State the right to certify this claim as clearly unfounded.
30. In these circumstances and despite everything impressed upon me by Ms Weston, this application for judicial review fails and must be dismissed.
31. MS WESTON: My Lord, there is the issue of detailed assessment of the claimant's publicly funded costs.
32. MR JUSTICE MUNBY: Well, you are certainly entitled to that. I assume there is no application for costs.
33. MS CHAN: There is no application for costs.
34. MR JUSTICE MUNBY: Indeed, thank you. So the order I will make is simply an order dismissing the application for judicial review, with no order as to costs, save for detailed assessment of the claimant's publicly funded costs.
35. Thank you both very much for your help.