QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF PRINCELY||Claimant|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||Defendant|
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MR CHARLES BANNER (instructed by THE TREASURY SOLICITOR) appeared on behalf of the Defendant
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MR JUSTICE SALES:
"We start from the stand point of the adjudicator's determination and we accept the appellant was a combatant with the LTTE and had received some training ... we do not accept that he ever received more than the basic 3-months training ..."
"As to the position on return at the airport, the current evidence is that the appellant would be questioned about his identity and it would become apparent that he had fought for the LTTE. Membership of the LTTE ceased to be a criminal offence in Sri Lanka with the ceasefire [this was a reference to the ceasefire between Sri Lankan government and LTTE in February 2002]. We have not been taken to any evidence that suggests that the situation has been reserved. The appellant has been out of Sri Lanka for a number of years, there is no satisfactory evidence that he was wanted or that there was a warrant for his arrest prior to his departure. There is nothing to suggest that anyone in the Sri Lankan authorities would know anything about him. We find there is nothing that would cause the appellant to be at real risk of being referred to the CID for prolonged questioning, although we do accept, in view of the objective evidence about the continuing human rights abuses and the impunity with which the Sri Lankan authorities operate, that if that were to happen there is a reasonable likelihood that he would be seriously mistreated."
"In my view it is arguable that, in the light of the finding that the claimant had been an LTTE combatant who had received military training, and that on return it would be apparent that he had fought for the LTTE, the defendant erred in failing to hold that he satisfied the test in Thangeswarajah and NA v United Kingdom."
"As in most asylum cases, the first and most important task is the assessment of the credibility of the appellant's claim. In the course of that assessment, the Tribunal will have regard to the history of the appellant, including the part of Sri Lanka from which he comes, and his actual involvement, if any, with the LTTE. Such involvement can vary between being a full time fighting member to the informal periodic supply of food. Issues of exclusion may arise. The extent to which their involvement may be known by the Sri Lankan authorities (or the extent to which they perceive there to be an involvement) will be relevant."
"During the course of the determination we have considered a list of factors which may make a person's return to Sri Lanka a matter which would cause the United Kingdom to be in breach of the Conventions. As in previous country guidance cases, this list is not a checklist nor is it intended to be exhaustive. The factors should be considered both individually and cumulatively. Reference should be made to the earlier parts of this determination where the factors are considered in more detail but for ease of reference they are set out here. There are twelve and they are not in any order of priority:-
(i) Tamil ethnicity;(ii) Previous record as a suspected or actual LTTE member or supporter;(iii) Previous criminal record and/or outstanding arrest warrant;(iv) Bail jumping and/or escaping from custody;(v) Having signed a confession or similar document;(vi) Having been asked by the security forces to become an informer;(vii) The presence of scarring;(viii) Returned from London or other centre of LTTE activity or fund-raising;(ix) Illegal departure from Sri Lanka;(x) Lack of ID card or other documentation;(xi) Having made an asylum claim abroad;(xii) Having relatives in the LTTE."
"Those with a criminal record or LTTE connections would face additional questioning and may 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;
Connection with LTTE;
Illegal departure from Sri Lanka;
Involvement with media or NGOs;
Lack of ID cards or other documentation."
In the context of the full text of the report, "connection with LTTE" would include someone who had fought for the LTTE, albeit as a low level soldier.
"High profile cases such as those suspected of having involvement with the LTTE would be taken away for further questioning, usually by the police."
Again, this would appear capable of including as a "high profile case" someone who had fought for the LTTE, albeit as a low level soldier.
"1.34 The Swiss Embassy representative added that those most likely to be targeted were those suspected of having affiliations with the LTTE and those who might be [internal displaced persons] who had escaped from camps. The usual suspects were young Tamils with ID cards from Jaffna, Vanni etc. …
1.36 Deputy Solicitor General, Kapila Waidyaratne, stated that someone found to have criminal records or connections with the LTTE would be investigated by CID and TID. However, in his opinion, they would not necessarily be arrested. Someone with a warrant of arrest or who had jumped bail or escaped from detention would be arrested. …
1.39 The UNHCR protection officer said that 'high profile' cases such as those suspected of having involvement with LTTE would be taken away for further questioning, usually by the police. …
1.47 The senior intelligence official said that the State Intelligence Service (SIS) would investigate all LTTE cadres and question them.
1.48 The Superintendent Police, Criminal Investigations Department (CID) at Bandaranaike International Airport said that if a person was suspected of being associated with LTTE, SIS would hand them over to the Terrorist Investigation Department (TID). Sometimes they were referred to Colombo Detection Bureau headquarters, or sometimes CID. In such cases a detention order for 90 days could be issued".
These references again appear capable of including the case of someone who had fought for the LTTE, even as a low level soldier, as a person having connections or affiliations with the LTTE, and potentially also as a "high profile case".
MS JEGARAJAH: My Lord, can I ask that the Secretary of State pay our costs, even though we are publicly funded, that the LSC gets reimbursed. Also can I have an order for a detailed cost assessment as well.
MR BANNER: I cannot oppose that.
MR JUSTICE SALES: Very well. The defendant should pay the claimant's costs, public funding assessment is directed as well.
MS JEGARAJAH: My Lord, could I make one slight correction to the judgment: LP was not promulgated on 12 April, that was the date of the hearing. Just a small point, it was actually promulgated on 8 August 2007 but do you not have that date on the determination.
MR JUSTICE SALES: Right. Thank you, I will look to correct that in the transcript. Very well, thank you to both of you.