The appellants

1.             The basis of the first appellant's account is that he came from a family of LTTE loyalists; his sister was a member of the Movement's inner circle, acting as medical adviser to its late leader, Thiruvenkadam Velupillai Prabhakaran, whose death on 18 May 2009 ended the civil war. The appellant was recruited in May 2007 and served until the end of the civil war. He was detained twice, once as a civilian, and the second time, because of his family connections. He has torture scars.

2.             The basis of the second appellant's account is that he came originally from Jaffna but was relocated to Puthukudyiruppu where he worked for the LTTE on the Pallai checkpoint for two years. He returned home after the ceasefire and was re-recruited in 2008, bunker digging and transporting the wounded. He surrendered at the end of the civil war in May 2009 and was detained for three months, during which he was tortured. He reached the United Kingdom in 2010.

3.             The basis on which the third appellant puts his claim is that he was involved with the LTTE between 1995-1997. He was detained and tortured in 2001-2 but released from detention in 2002 after the ceasefire, and came to the United Kingdom in 2005. His brother is also in the United Kingdom and has been granted asylum on appeal.

"11 Citation of unreported determinations

                     i.       We were made aware, during the evidence of the UKBA witnesses, of the existence of a Bilateral Readmission Agreement between the United Kingdom and Sri Lanka. The respondent refused to disclose a copy of that agreement, but we consider that we are able to deduce its relevant contents sufficiently from the procedures adopted. No disclosure order was made for this document.

                  ii.       The appellants sought disclosure of information in the possession or control of the respondent regarding their contention that there was a significant trend in 2011-2012 of students with multiple entry visas, returning to Sri Lanka and coming to harm there, and then seeking asylum in the United Kingdom (the "recent returnees" profile). They had been endeavouring to obtain information from the respondent about cases in her database fitting the "recent returnees" profile.

"2. In respect of the enquiries undertaken by the Respondent pursuant to paragraph 23 of her note on Disclosure of 10 December 2012, the Respondent shall ... provide in writing to the Tribunal and the parties:

a. The wording of all questions asked of the Asylum Regional Offices;

b. What, if any, information was given in response by each office to each question.

Appendix C - the UKBA witnesses

"...the respondent accepts that there is a pattern of persons with lawful residence in the United Kingdom who claim to have returned to Sri Lanka, and to have been detained and tortured there, and who have then returned to the United Kingdom and sought asylum. The respondent accepts that some of these individuals have been granted asylum by the Secretary of State or on appeal to the Tribunal."

Appendix D - Dr David Rampton

"12. ...President Rajapaksa himself ... on multiple occasions in speeches and interviews has blamed the Tamil Diaspora for driving the conflict and for making impossible demands that prohibit a peaceful settlement. For this reason the GoSL has engaged in surveillance of the Tamil Diaspora in European and Western societies as an attempt to prevent and/or contain the (re-)emergence of the LTTE or another militant Tamil nationalist movement. It is worth noting that the LTTE did operate as a global network with offices, funding networks, arms procurement and commercial shipping arms located amongst and directed from pro-LTTE sections of the Tamil Diaspora.

Appendix E - FFT witnesses

Appendix F - HRW

"l. Ratify the following international conventions: the Optional Protocol to the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the Rome Statute of the International Criminal Court; and the International Convention for the Protection of All Persons from Enforced Disappearance;

m. Invite and facilitate the visits of UN special procedures including the UN special rapporteur on torture, the UN Working Group on Arbitrary Detention, the UN Working Group on Enforced Disappearances, the UN special rapporteur on violence against women, and the UN special rapporteur on the independence of judges and lawyers. "

"2. The names, place of residence and as well as potentially incriminating details of the dates and locations of victims' detention and abuse have in the majority been withheld to address concerns about their vulnerability to possible reprisals by Sri Lankan security forces should information in this report enter the public domain. I have included information from sources I consider reliable based on my knowledge and experience on Sri Lanka. I have provided as much detail on the sources as can be safely provided. Given the vulnerability of sources in Sri Lanka, I would like to request the court to omit mentioning specific names and details on individual sources in the decision as this could potentially lead to the identification of these sources by Sri Lankan authorities and make them vulnerable to future ill-treatment."

"30. ..."The current government in Sri Lanka is strong but insecure because of a variety of factors which include on-going allegations of war crimes in its defeat of the LTTE; any development which could potentially challenge its main achievement, the defeat of the LTTE, and thereby contest its success; the fear of loss of protection should the leaders suddenly be stripped of official position and power; and finally the fact that the government is entrenching a dynastic project."

"83. Nepotism and clientelism is rife in Sri Lanka and political office has traditionally been used to perpetuate power and accumulate wealth. ... Mahinda Rajapaksa's election as President in 2005 broke the stranglehold of power by a small, higher class clan of political elite. Since then, the government is dominated by the President's family with two of his brothers holding key executive branch posts as Defense Secretary and minister of economic development , while a third brother serves as the Speaker of Parliament. A large number of other relatives, including the president's son, also serve in important political or diplomatic positions. The culture of nepotism goes beyond the echelons of political power and is noticeable in the civil services, judiciary, police and other divisions of state administration."

"There is no need now for search and cordon operations or having many road blocks, checkpoints or rounding up people for questioning. That is no longer necessary. But there are other methods to keep vigilant. Especially on the intelligence side - we have increased military intelligence units. We are training them more and more in advanced methods so they can gather information on these affairs and have an early warning. Then we keep an eye on certain people that we know have been engaged in criminal activity. Certain people who have been rehabilitated and released - some have adjusted very well and integrated extremely well... some are working happily in various jobs, some are engaged in their own work. But there are a few people not terrorists but engaged in normal criminal activity. There is a possibility these people may get involved in terrorist activity again".

"... while fund raising for the Tamil cause in the diaspora continues to remain active and there remains a residual nostalgia for the LTTE within Sri Lanka, chances of a revival of the LTTE remain dim".

"...to acquire intelligence on the activities of this politically active diaspora, particularly on its contribution to international moves towards an inquiry into alleged war crimes committed by the state in its 2009 defeat of the LTTE ... to send a signal to the diaspora that any involvement in an international campaign against Sri Lanka would result in harsh consequences".

·          Tamil Rehabilitation Organization / International Tamil Rehabilitation Organization),

·          White Pigeon,

·          British Tamil Association (BTA),

·          World Tamil Movement (WTM),

·          Tamil Coordinating Committee (TCC),

·          British Tamil Forum (BTF),

·          Tamil Youth Organization (TYO) (branches in 12 countries including the United Kingdom)

·          Coordinating Committee of Tamils-France (CCTF).

·          Tamil Coordinating Committee (TCC) (in Germany, Norway, Netherlands, Australia, Sweden, South Africa, Belgium & New Zealand)

·          World Tamil Movement (WTM) (Canada); and

·          World Tamil Coordinating Committee (WTCC) (Switzerland).

Appendix G - TAG

Mr Alan Keenan

" ...I can verify that in my work with the International Crisis Group, I have come across at least one witness (Witness X) living in hiding outside of Sri Lanka who was approached by a group of Sri Lankan Tamils posing as journalists attached to Channel 4 television in Britain, which, as you know, had earlier produced a powerful and well-publicised documentary entitled "Sri Lanka's Killing Fields". The Sri Lankan team claimed to be seeking evidence of war crimes committed by the Sri Lankan security forces and sought to interview witness X for a follow-up Channel 4 documentary. Witness X declined but put the team in touch with two other Sri Lankan Tamils s/he knew who were willing to describe their experiences in the final phase of the civil war. Witness X never saw her/his two friends again, has not been able to learn of their whereabouts and fears they have been abducted and/or killed. Channel 4 staff involved in making "Sri Lanka's Killing Fields" confirm they never approached witness X and did not work with any of those witnesses X described. They also confirm that they have heard from credible independent sources that others were also targeted by the same scam. I am not able to name the witness or reveals her/his location in order to protect them from almost certain torture and death should they be located by Sri Lanka military intelligence. "

Appendix H - Mr Callum Macrae

Appendix I - Professor Anthony Good

Appendix J - Dr Chris Smith

Appendix K - other country evidence

"The High Commissioner said further that he was deeply concerned about certain elements in the diaspora in Australia who were intent on destroying the processes of reconciliation and economic development taking place in Sri Lanka by continuing a campaign of separatism. He highlighted the involvement of these diaspora members in LTTE and LTTE front activities and said that they have already begun fundraising campaigns for the cause of creating a separate state of Tamil Eelam in Sri Lanka. He added that these front organisations were similar to those set up by the LTTE in the Eighties, through which they raised funds and procured arms and ammunition to unleash terrorism in Sri Lanka. ...The High Commissioner concluded his presentation with a photograph depicting a recent marriage which had taken place between a Sri Lankan soldier and a former LTTE combatant. He said that reconciliation was happening in Sri Lanka between the two communities and the pro-LTTE diaspora should not be allowed to derail that process."

"...renaming of places and the building of religious markers of the majority community in areas predominantly inhabited by the minority Tamil, Hindu and Christian communities as well as demographic change."

"62. On accountability the LLRC falls short, endorsing the GOSL stand that it did not target civilians. The LLRC however, concedes that inadvertently, GOSL forces could have been responsible for civilian deaths and calls for an investigation of these instances. The LLRC also states that the Channel 4 documentary contains serious allegations against the reputation and standing of the GOSL and that an investigation to clear the name and reputation of the GOSL is in order. It further calls for the re-opening of investigations into the murder of 17 humanitarian workers in 2006 and the killing of 5 Tamil students on the beach in Trincomalee in the Eastern Province, also in 2006.

"26. ...The paramilitary groups, working alongside the SLA, assist the escape of detainees in order to extort money. In my practice, I have come across several cases where the families use bribery as a last resort to secure the release of a detainee with the assistance of members of the security forces or paramilitary groups.

A. Respondent's submissions

B. Appellants' submissions

(1) Mr Mackenzie's submissions

(2) Mr Spurling's submissions

(i)            having been an actual or potential witness of war crimes in the Eastern No-Fire Zone at the end of the civil war in May 2009;

(ii)          being a candidate for, or having been subject to post-war screening and/or rehabilitation, whether a person had been rehabilitated, spent time in the camps without being rehabilitated, or not been in the camps at all. This group would encompass all Tamils from the Vanni who had ever been associated with the LTTE at any level or had lived in any area under LTTE control;

(iii)       being perceived as hostile to the Rajapaksa Government or the Sri Lankan state.

Mr Spurling accepted that the extent to which the proposed new factors elevated the risk for a particular appellant would always be a question of fact.

(3) Mr Palmer's submissions

C. Miss Jegarajah's submissions

208.     Miss Jegarajah argued that the intention of the GOSL was not really to prevent the resurgence of the LTTE but to treat the Tamil community so harshly that it could not and would not reorganise and would therefore constitute no ongoing threat to the Sri Lankan state. She relied upon the post-mortem statement in January 2009 of Lasantha Wickrematunge, the late Editor of the Sunday Leader. His paper, the Sunday Leader, had been particularly critical of President Rajapaksa. Wickrematunge had been receiving death threats for some time, before being shot by four armed motorcyclists on his way to work on 8 January 2009; he died of his injuries in hospital.

"Neither should our distaste for the civil war be interpreted to mean that we support the Tamil Tigers. The LTTE is among the most ruthless and bloodthirsty organisations to have infested the planet. There is no gainsaying that it must be eradicated. But to do so by violating the rights of Tamil citizens, bombing and shooting mercilessly, is not only wrong but shames the Sinhalese, whose claim to be custodians of the dhamma is for ever called into question by this savagery - much of it unknown to the public because of censorship."

" Mahinda, when you finally fought your way to the Sri Lanka Freedom party presidential nomination in 2005, nowhere were you welcomed more warmly than in this column. Indeed, we broke with a decade of tradition by referring to you throughout by your first name. So well known were your commitments to human rights and liberal values that we ushered you in like a breath of fresh air. ...

In the wake of my death I know you will make all the usual sanctimonious noises and call upon the police to hold a swift and thorough inquiry.

But like all the inquiries you have ordered in the past, nothing will come of this one, too. For truth be told, we both know who will be behind my death, but dare not call his name. Not just my life but yours too depends on it.

As for me, I have the satisfaction of knowing that I walked tall and bowed to no man. And I have not travelled this journey alone. Fellow journalists in other branches of the media walked with me: most are now dead, imprisoned without trial or exiled in far-off lands. Others walk in the shadow of death that your presidency has cast on the freedoms for which you once fought so hard. You will never be allowed to forget that my death took place under your watch. As anguished as I know you will be, I also know that you will have no choice but to protect my killers: you will see to it that the guilty one is never convicted. You have no choice."

Submissions in reply

(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."

"...b) 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 Northern Province (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.

c) 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..."  

"16. In addition, at paragraph 71 [of SG Iraq v SSHD 2012 EWCA 940, Stanley Burnton LJ] endorsed the test which had been formulated at first instance by Irwin J, which he summarised in the following terms:

"The court should not stay removal pending the decision of the Court of Appeal, unless the claimant has adduced a clear and coherent volume of evidence that the findings of the Tribunal were in error."

" Results

The study revealed higher levels of stigma towards patients with depression, alcohol and drug addiction in this Sri Lankan sample compared to UK data but attitudes towards schizophrenia were less stigmatized in Sri Lanka. Blaming attitudes were consistently high across diagnoses in the Sri Lankan sample. Sri Lankan medical students displayed more negative attitudes than doctors ( P < 0.001). Overall stigma was greatest towards patients with drug addiction, followed by, alcohol addiction, schizophrenia, depression, panic disorder and dementia."

Confidentiality and the public reports

Timing of flights and reports

UNHCR guidelines

"These Guidelines ... are issued against the backdrop of the current situation in The Democratic Socialist Republic of Sri Lanka (hereafter Sri Lanka), where ongoing human rights concerns are reported, including in particular with regard to reports of post-conflict justice, torture and mistreatment, disappearances, arbitrary detention and freedom of expression.

UNHCR's recommendations, as set out in these Guidelines, are summarized below.

All claims lodged by Sri Lankan asylum-seekers, whether on the basis of the refugee criteria contained in the 1951 Convention, or complementary forms of protection based on human rights obligations, need to be considered on their own merits according to fair and efficient status determination procedures and up-to-date and relevant country of origin information. 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 their case."

" (i) persons suspected of certain links with the Liberation Tigers of Tamil Eelam (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;

(vi) women in certain circumstances;

(vii) children in certain circumstances; and

(viii) lesbian, gay, bisexual, transgender and intersex (LGBTI) individuals in certain circumstances."

The evidence which we have received relates to the first five subheads in particular. Mr Hall accepted that those who were detained were likely to be ill-treated and the evidence suggests that, for both sexes, that ill-treatment sometimes includes sexual abuse. We have not been taken to evidence relating to children or to LGBTI individuals and the guidance in this determination does not, therefore, deal separately with women, children, or LGBTI individuals.

"A. Risk Profiles

A.1 Persons Suspected of Certain Links with the Liberation Tigers of Tamil Eelam (LTTE)

At the height of its influence in Sri Lanka in 2000-2001, the LTTE controlled and administered 76% of what are now the Northern and Eastern Provinces. Therefore, all persons living in those areas, and at the outer fringes of the areas under LTTE control, necessarily had contact with the LTTE and its civilian administration in their daily lives. Originating from an area that was previously controlled by the LTTE does not in itself result in a need for international refugee protection in the sense of the 1951 Convention and its 1967 Protocol.

However, 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 these more elaborate links to the LTTE can vary, but may include people with the following profiles:

"An internal flight or relocation alternative may be available in cases where the feared persecution emanates from non-state agents. In instances where an internal relocation option would be relevant, it may nevertheless not be reasonable, depending on the circumstances of the individual case. Serious social and economic challenges remain in areas previously affected by armed conflict, where livelihood opportunities are extremely limited."

"(i) Certain (former) Government officials, including in functions with responsibilities relating to the conduct of war during the final phases of the conflict, and those posted in the conflict-affected areas during the final phase of the conflict;

(ii) Certain (former) members of the Sri Lankan Army and other security forces;

(iii) Certain (former) members of the Sri Lanka Police Service (SLPS), including the Criminal Investigation Division (CID), the Terrorist Investigation Department (TID), and the Special Task Force (STF);

(iv) Certain former members of the LTTE, in particular former combatants;

(v) Certain (former) members of the 'Tamil Makkal Viduthali Pulikal' (TMVP), including the Karuna faction and the Inya Barathi Group;

(vi) Certain (former) members of the Eelam People's Democratic Party (EPDP);

(vii) Certain (former) members of the People's Liberation Organisation of Tamil Eelam (PLOTE); and

(viii) Certain (former) members of other pro- and anti-government militias and paramilitary groups."

Decision makers (including judges) dealing with returns to Sri Lanka must be alive to the possibility that exclusion, both under Article 1F of the Refugee Convention and Article 12(2) of the Qualification Directive, may apply, whether raised by the parties or not.

General situation in Sri Lanka

No-Fire Zones

Rehabilitation

The Rajapaksa government

Government's attitude to returning asylum seekers

Sinhalisation of Tamil areas

LLRC

"To inquire and report on the following matters that may have taken place during the period between 21st February, 2002 and 19th May, 2009, namely:

• The facts and circumstances which led to the failure of the ceasefire agreement operationalized on 21st February, 2002 and the sequence of events that followed thereafter up to the 19th of May, 2009.

• Whether any person, group or institution directly or indirectly bear responsibility in this regard;

• The lessons we would learn from those events and their attendant concern, in order to ensure that there will be no recurrence;

• The methodology whereby restitution to any person affected by those events or their dependants or their heirs, can be affected;

• The institutional administrative and legislative measures which need to be taken in order or prevent any recurrence of such concerns in the future, and to promote further national unity and the reconciliation among all communities, and to make any such other recommendations with reference to any of the matters that have been inquired into under the terms of the civil warrant."

Diaspora activities

The LP / TK factors

(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 first appellant

358.     The agreed issues in relation to the first appellant were whether he had been ill-treated in the past, and if so, by whom; and in the light of the answer to that question, whether there was any risk of persecution or serious harm if he were returned now.

Facts for the first appellant

(i) In June 2010, he was ordered to attend the CID base in Akkerayankulam. He was questioned about the whereabouts of fuel canisters and similar items which the LTTE had allegedly buried in the area. He was not ill treated;

(ii) In October 2010, the first appellant was again ordered to the CID base, and questioned about his sister's whereabouts. It was also suggested on this occasion that he had been continuing to assist the LTTE by collecting funds. He was not physically ill treated but was threatened with being shot;

(iii) On 5 December 2010, 15 soldiers entered the first appellant's house and took his mobile phone;

(iv) In January 2011, soldiers came to his house and took his details;

(v) On 29 May 2012, the first appellant was arrested from his home and taken to the CID base at Akkerayankulam. This time, he was detained;

(vi) On 30 May 2012, the appellant was transferred to the army camp at Kilinochchi. He was detained for three days, during which time he was ill treated, questioned about his sister's LTTE involvement and accused of supporting the LTTE.

Respondent's decision

·          That the LTTE, when recruiting the first appellant at his shop in 2007, did not also seek to recruit the fourteen other persons in the shop at the same time;

·          That the appellant received only 1 month's training from the LTTE, which the respondent considered to be inconsistent with background evidence indicating that LTTE members at that time underwent a rigorous 4-month training regime;

·          That the first appellant did not seek to flee from the LTTE in the 3-hour period between the time he was informed by the LTTE of their intention to recruit him, and the time he was taken by them;

·          That the first appellant would have been supervising civilians digging bunkers whilst unarmed and not wearing an LTTE uniform;

·          That the first appellant experienced no difficulties leaving Sri Lanka, which if true indicated that he was of no interest to the authorities at that time.

First-tier Tribunal's decision

"[17] I am prepared to accept that the appellant has been detained by the Sri Lankan authorities from November 2008 until October 2009 in the Kopay Camp in Jaffna. During that period I also accept that the Red Cross were contacted who located the appellant's mother and the younger of his two sisters. It is not suggested however that despite being held for almost twelve months that there was any ill treatment of the appellant. This would suggest that during that time he was not regarded as having been an active belligerent. It is also of note that he was given a release letter which from its terminology, described by the appellant during the course of his interview, simply detailed the dates when he was taken to the camp and his release. I do not accept that it contained further details regarding him having to remain within a particular locality as the appellant had the opportunity to give those details on interview (see questions 169 and 170) of the interview record.

[18] It is also apparent from the appellant's version that he initially lived with his relatives in Vavuniya before returning to his home area of Kilinochchi in April 2010. He experienced no difficulties although he was questioned by the police in June and October 2010. It is not suggested that the questioning was conducted with violence or torture. ...

[23] In relation to the appellant's witness I have great reservations regarding his credibility. As indicated there were conflicts in the evidence given about the fashion, the manner and timing of the contact between him and the appellant. It is also apparent that he has become friendly with an individual working for the instructing solicitors and has been informed of the appellant's background. Although he himself has sought asylum on the basis of his involvement with the LTTE his dubious credibility casts doubt upon his claims regarding his relationship with the appellant's sister and her position in the organisation.

[24] In view of my findings I do not believe that the appellant is at risk from the Sri Lankan authorities upon his return. I accept the conclusion of the medical report that the appellant has been tortured but in view of the appellant being able to leave the country using his won passport despite having been detained in 2008 and having effected his escape by bribery I do not believe that there remains a serious risk to him on return"

Error of Law

"... a. The parties shall prepare for the hearing on the basis that the findings of fact of the First-tier Tribunal at paragraphs 17, 18 and 23 (but not in relation to the alleged friendship between the witness and the member of the staff employed by the appellant's solicitors) shall stand."

The preserved findings

375.     The findings of fact from the First-tier Tribunal which Judge Hanson ordered preserved were as follows:

"[17] I am prepared to accept that the appellant has been detained by the Sri Lankan authorities from November 2008 until October 2009 in the Kopay Camp in Jaffna. During that period I also accept that the Red Cross were contacted who located the appellant's mother and the younger of his two sisters. It is not suggested however that despite being held for almost twelve months that there was any ill treatment of the appellant. This would suggest that during that time he was not regarded as having been an active belligerent. It is also of note that he was given a release letter which from its terminology, described by the appellant during the course of his interview, simply detailed the dates when he was taken to the camp and his release. I do not accept that it contained further details regarding him having to remain within a particular locality as the appellant had the opportunity to give those details on interview (see questions 169 and 170) of the interview record.

[18] It is also apparent from the appellant's version that he initially lived with his relatives in Vavuniya before returning to his home area of Kilinochchi in April 2010. He experienced no difficulties although he was questioned by the police in June and October 2010. It is not suggested that the questioning was conducted with violence or torture ...

[23] In relation to the appellant's witness I have great reservations regarding his credibility. As indicated there were conflicts in the evidence given about the fashion, the manner and timing of the contact between him and the appellant. It is also apparent that he has become friendly with an individual working for the instructing solicitors and has been informed of the appellant's background. Although he himself has sought asylum on the basis of his involvement with the LTTE his dubious credibility casts doubt upon his claims regarding his relationship with the appellant's sister and her position in the organisation.

[24] In view of my findings I do not believe that the appellant is at risk from the Sri Lankan authorities upon his return. I accept the conclusion of the medical report that the appellant has been tortured but in view of the appellant being able to leave the country using his own passport despite having been detained in 2008 and having effected his escape by bribery I do not believe that there remains a serious risk to him on return." [Emphasis added]

Evidence before Upper Tribunal

(a)    The first appellant adopted a lengthy witness statement drawn in his name and dated 11 February 2013, which stated, in summary, that; (i) he had not been abducted by the LTTE in March 2007 and his earlier statement to the contrary contains error in this regard, this being as the likely consequence of a mistranslation, (ii) only one of his sisters joined the LTTE, and the statement in the expert report authored by Dr Smith that both of his sisters had joined the LTTE was incorrect; (iii) the original documents, copies of which are provided between pages 79 to 96 of his bundle, are genuine; (iv) the original photograph of him in LTTE uniform was not before the Tribunal because he handed it to his previous solicitors who had not returned it; and that (v) the photograph was taken in Kilinochchi in 2007 after the funeral of an LTTE hero.

(b)    The first appellant also gave detailed evidence as to the contents of other photographs before the tribunal, identifying the LTTE personnel contained within the photographs, including his sister and Prabhakaran, the now deceased former leader of the LTTE. Further evidence was also given by the first appellant to the effect that; (i) he had voluntarily joined the LTTE, having been asked to do so; (ii) his training for the LTTE had lasted 1 ½ months, of which arms training constituted 1 month and training in LTTE financial affairs lasted 15 day. After training he was transferred to the finance division and then worked in the fuel distribution section.

(c)     He had joined the LTTE in 2007 as a volunteer, after they came to his shop and asked him to do so. The LTTE had given him three hours to decide whether to join: whilst he would not have joined had he not been asked, the appellant was aware that had he not done so, his refusal would have been very embarrassing for his sister, because of her high profile in the LTTE. The first appellant repeated that his sister had been a doctor and a part of Prabhakaran's medical team.

(d)    The LTTE's fuel and diesel was obtained from foreign countries and the army-controlled areas. The distribution section was in Kilinochchi and that was where the appellant worked. He played no part in purchasing the fuel; his job was to see that it reached the various places where it was needed and that proper accounts were kept.

(e)     Of the seventeen persons working with him in the LTTE, he was aware of three who had been taken for questioning by the Sri Lankan authorities and who never returned.

(f)      The first appellant stated that he had not signed a confession whilst detained in Kopay camp.

(g)    As to his travel arrangements out of Sri Lanka, the first appellant had not asked questions. The agent had obtained a passport for him and had retained it. His uncle had arranged the agent: the first appellant had not asked his uncle how much he had paid the agent. His uncle owns a shop selling agricultural products, and has 2 adult children.

(h)    The appellant was asked for further detail of his relationship with the agent. His evidence was that his uncle had spoken to the agent after the first appellant's arrest. He stated that he communicated with the agent only through the uncle, but when it was put to him that this was not consistent with his earlier evidence, the first appellant asserted that his uncle had introduced him to the agent and that he had communicated with the agent principally through his uncle. He assumed that the agent knew a CID officer and that was how his release had been arranged.

(i) When "released", the appellant had been taken, by a CID officer, to an area about 200 metres outside the Kilinochchi camp where he was held. His uncle and the agent were waiting for him in a car. He had left the camp "through a back door".

(j) Whilst in detention he had been asked questions about the LTTE finance section, and persons who had contact with the section. He was tortured and asked questions in a dark room.

(k)    His fingerprints were not taken during the 2011 detention, but his photograph was taken. He was not provided with a release document on this occasion. He had not thought of asking the agent whether he would be recorded as an escapee. He had not asked the agent any questions.

(l) He was now on a list of people to be killed.

Re-making the determination: the issues

Submissions

Conclusions on the first appellant's appeal

The second appellant

Second appellant's evidence at the hearing

(i) His family has moved to a different address because intelligence people kept looking for him.

(ii) His mother informed him they have come looking for him three times since the hearing in May 2011. She went to the Grama Sevaka about this and she has sworn an affidavit before a local Justice of the Peace.

(iii) The Grama Sevaka and lawyer both told his mother that the appellant should not return to Sri Lanka as the authorities are still looking for him and it is not safe there. They also advised his mother that the family should move away from the area and so they have done so to a place about five to six kilometres away from their previous address. They do not have the resources to move far away. So long as the authorities do not know that they are there it is safe for them. His parents are particularly worried about his sisters and younger brother.

(i) She has three daughters and three sons.

(ii) Her husband's brother secured the release of the second appellant on 30 August 2009 after paying "a huge bribe" to some "high officials".

(iii) Her other son was forcibly recruited into the LTTE in January 2008 and has been missing since the end of the civil war in May 2009.

(iv) The Sri Lankan state security and paramilitary personnel have come to her home on three occasions in search of the second appellant since 3 July 2011. They told the appellant's mother that he was accused of being an LTTE member, that he had escaped from detention and is wanted for further questioning. The state security officials who came to search for him on 3 July 2011 were very abusive; they harassed and threatened her. Two were in camouflage dress and the others were in plainclothes. A few of them were armed and had walkie-talkies.

(v) On 27 July 2011, eight men came in search of the appellant, three in army fatigues and the others in civilian clothes. Again, a few of them were armed and had walkie-talkies. They were more abusive and very rude. They took a few photos from her photograph album, including one of the second appellant, and required her to report to the neighbouring army camp on 30 July 2011.

(vii) The second appellant's mother reported as required. After a long wait, three officers in "partial" military uniform came. One spoke to her in fluent Tamil, accusing the second appellant of being a hardcore LTTE member and jail breaker. They questioned her about his whereabouts and were very rude and threatening.

(viii) Thereafter the second appellant's mother again consulted the Grama Sevaka and instructed a lawyer, Mr Sherosan Kumar.

"...Having made few enquiries into the reasons behind Sri Lankan authorities' interest in [the second appellant] can confirm that [he] was detained by the state security forces from May to August 2009 or was involved with the LTTE. His mother claims that her son was tortured and was forced to sign a Sinhalese document which would eventually be fabricated as a self-confession. However, [the second appellant was released] after having paid a hefty bribe to some senior government officials. I further understand that the Sri Lankan security forces are highly interested in him for further questioning and have gone twice in July this year to his parents' house ... in search of him ... I believe that since [he] was not released officially the authorities could have listed him as an escapee from their custody and might have alerted the ports of entry exit."

Submissions

(a)    Given the general positive credibility finding made by the First-tier Tribunal judge and in the absence of any adverse findings to the contrary the following should be deemed to be accepted:

(i)                  the second appellant was released following payment of a bribe by his paternal uncle; and

(ii)               he left Sri Lanka clandestinely travelling to the United Kingdom via Dubai, Turkey and Portugal with the aid of an agent.

(b)    As to the nature of the document signed, that was not a matter of which the present Tribunal was seised. The credibility of the appellant's account had been accepted, including that he had signed an unknown document written in the Sinhala language. Any inconsistency in his evidence as to which was the camp where he signed it was unsurprising: inconsistencies of this kind in asylum appeals are not unusual, the Tribunal should have regard to the notorious unreliability of memory over time, and the context within the events were said to have occurred.

(c)     Alternatively, even if there were no purported confession on the second appellant's record, he remained at risk on return. Even if after his release he was not recorded as having absconded, a record would have been made of his known connections to the LTTE, his period of detention at Anuradhapura detention camp and his failure to complete the rehabilitation process.

(d)    Before returning to Sri Lanka, the appellant would require a travel document and would have to complete an application at the SLHC in London, since he had never possessed a passport. He would be interviewed there and also on return by DIE, SIS and CID. It would be extraordinary if he were not asked about his reasons for leaving Sri Lanka and his past history.

(e)     The appellant continued to contend that the adduced documents corroborated his mother's account of further visits and were not fabricated, as Mr Hall contended, to complete gaps in his earlier account.

Conclusions on the second appellant's appeal

(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. That account is entirely consistent with events after the civil war ended in May 2009;

(ii)               The second appellant was not ill-treated whilst 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)             The appellant's 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 into and exit from the camp;

(iv)             The second appellant did not sign any confession or adverse document in Anuradhapura detention camp; and

(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.

"339K. The fact that a person has already been subject to persecution or serious harm, or to direct threats of such persecution or such harm, will be regarded as a serious indication of the person's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated."

The effect of that provision is that where the circumstances are the same, then past persecution or serious harm is to be regarded as predictive of future persecution or serious harm, absent a change of circumstances.

The third appellant

(i) Based on the factual findings preserved by the Court of Appeal, would the third appellant face persecution and/or serious harm on return to Sri Lanka?

(ii) On Devaseelan principles, what impact do the findings in the third appellant's brother's appeal have on the credibility of the third appellant's account of interest in him and members of his family since he left Sri Lanka?

(iii) What additional findings of fact in relation to events since the appellant left Sri Lanka should be made, and what effect do such findings have on risk on return for the third appellant?

Facts

1.                   The appellant, his brother in the United Kingdom and another brother all received basic LTTE training and were associated with the LTTE until the ceasefire.

2.                   The appellant's brother had been detained and tortured in 2008. He had cigarette burn scars on his body, as well as scars from being beaten by a long instrument. He had attempted suicide and the risk of recurrence was high.

3.                   The third appellant's wife had been detained by the authorities after her return from the 2008 wedding and had to relocate for safety to live with her parents.

Medical evidence

" 4.6.4 His mood was severely depressed throughout the examination, with a deep sense of hopelessness. His range of affect was severely reduced, so that there was little indication of any other feelings during the examination. When plagued by intrusive memories [of the traumas and torture in Sri Lanka] he became at times very distressed. He showed a high degree of suicidality, with suicidal thoughts, suicidal impulses, apparently a clear suicidal plan and a serious determination to kill himself in case he was forced to go back to Sri Lanka.

" 5.2.1 ...I am therefore of the firm opinion that in [the case of deportation] his already severe mental state would deteriorate further and his already significant suicide risk would become extremely high. It is highly likely that he would do everything to prevent being deported by taking his own life. ...

Conclusions on the third appellant's appeal

" 23.28 The BHC letter of 31 January 2012 observed that: "There are no psychologists working within the public sector although there are [sic] 1 teaching at the University of Colombo. There are no numbers available for psychologists working within the private sector. There are currently 55 psychiatrists attached to the Ministry of Health and working across the country."

Post Traumatic Stress Disorder (PTSD)

DECISIONS AND DIRECTION

In each case, the making of the previous decisions involved an error on a point of law and the previous decisions are set aside, as set out above. Our decisions on the individual appeals are as follows:

(1) The appeal of the first appellant is allowed on asylum and Article 3 ECHR grounds. It is dismissed on humanitarian protection grounds. No separate Article 8 claim was advanced. The respondent is directed to grant appropriate leave to the first appellant.

(2) The appeal of the second appellant is dismissed on asylum, humanitarian protection, and human rights grounds. No separate Article 8 claim was advanced.

(3) The appeal of the third appellant is dismissed on asylum and humanitarian protection grounds but allowed under Article 3 ECHR. The respondent is directed to grant appropriate leave to the third appellant.

APPENDIX A:

Documents before the Upper Tribunal