CASE OF E.G. v. THE UNITED KINGDOM

FOURTH SECTION

CASE OF E.G. v. THE UNITED KINGDOM

(Application no. 41178/08)

JUDGMENT

STRASBOURG 

31 May 2011

FINAL

28/11/2011

This judgment has become final under Article 44 § 2 (c) of the Convention. It may be subject to editorial revision.

In the case of E.G. v. the United Kingdom,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

Lech Garlicki, President,
Nicolas Bratza,
Ljiljana Mijović,
Sverre Erik Jebens,
Zdravka Kalaydjieva,
Nebojša Vučinić,
Vincent A. De Gaetano, judges,
and Lawrence Early, Section Registrar,

Having deliberated in private on 10 May 2011,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 41178/08) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Sri Lankan national, E.G. (“the applicant”), on 29 August 2008.

2. The applicant was represented by Mr S. Satha, a lawyer practising in London with Satha & Co. Solicitors. The United Kingdom Government (“the Government”) were represented by their Agent, Mr D. Walton of the Foreign and Commonwealth Office.

3. On 28 April 2008, the Acting President of the Fourth Section decided to apply Rule 39 of the Rules of Court, indicating to the Government that it was in the interests of the parties and the proper conduct of the proceedings that the applicant should not be expelled to Sri Lanka pending the Court’s decision. On 3 September 2008 the Acting President decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). It was subsequently decided to grant the applicant anonymity (Rule 47 § 3 of the Rules of Court).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

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

5. The applicant is a Tamil who was born in 1976 in northern Sri Lanka. He arrived in the United Kingdom on 7 November 2000 and on that date claimed asylum on the ground that he feared persecution by the Sri Lankan army on account of his involvement with the Liberation Tigers of Tamil Eelam (“the LTTE”). He submitted that he had been arrested in 1996, after he had left the LTTE, in a round-up and identified as an LTTE member by a masked man. He was severely tortured during the five days of his detention. He was released after the village headman and his mother intervened, but as a condition of his release he was required to sign on regularly at an army camp.

6. On 7 March 2001 the Secretary of State for the Home Department refused the applicant’s asylum claim. He did not accept that the applicant had been arrested and tortured in 1996 or that he genuinely feared that he would be arrested by the army.

7. The applicant subsequently obtained a medical report which confirmed that he had a number of scars on his scalp, his elbows and his legs caused by shell fragments.

8. On 17 April 2002 the applicant’s appeal against the Secretary of State’s decision was dismissed by an Adjudicator. With no Home Office representative present at the hearing to cross-examine the applicant, his evidence was unchallenged. The Adjudicator therefore accepted that the applicant had been a member of the LTTE and that he had been detained and ill-treated by the army in 1996. The Adjudicator also accepted that the scars were caused by shell fragments as the applicant claimed. She noted, however, that the applicant’s scars were not readily visible and would not cause the applicant to stand out; this was evidenced by the fact that the applicant was able to leave Sri Lanka without difficulty, despite having to travel across the country and through checkpoints, which indicated that he was of no interest to the authorities. With regard to the applicant’s Article 8 rights, the Adjudicator noted that although the applicant had a brother and sister in the United Kingdom, he had been separated from them for eight and twelve years respectively; neither had been present at the hearing; and they could visit the applicant in Sri Lanka should they so wish.

9. On 28 May 2002 the applicant was refused permission to appeal to the then Immigration Appeal Tribunal.

10. The applicant subsequently made further representations to the Home Office, which, in a decision dated 11 May 2006, the Secretary of State refused to treat as a fresh asylum claim. On 9 October 2006 permission to apply for judicial review was refused. Permission was again refused on 19 February 2007 following an oral hearing. On 5 February 2007 the applicant once again submitted further representations. On 16 February 2007 the Secretary of State decided not to treat those representations as a fresh asylum claim. On 21 February 2007 a further application for permission to apply for judicial review was refused.

11. On 10 January 2008 the applicant submitted fresh representations requesting that his case be reconsidered in light of the country guidance determination of LP (LTTE area – Tamils – Colombo – risk?) Sri Lanka CG [2007] UKAIT 00076 (see paragraph 13 below). The Secretary of State responded in a letter dated 27 August 2008 stating that:

“It is accepted that your client is of Tamil ethnicity as claimed. It is not believed that your client was tortured and as such it is doubtful he was a member of the LTTE as claimed”.

12. This reasoning led to the conclusion that the applicant’s only risk factors were his Tamil ethnicity and scarring, which the Secretary of State pointed out only had significance if combined with other factors likely to bring the applicant to the attention of the authorities.

II. RELEVANT DOMESTIC LAW AND PRACTICE

13. In LP (LTTE area – Tamils – Colombo – risk?) Sri Lanka CG [2007] UKAIT 00076 (“LP”), the Asylum and Immigration Tribunal considered the case of a Tamil, LP, from Jaffna in the north of Sri Lanka. He had experienced problems with the LTTE and the Sri Lankan authorities and had fled Sri Lanka on 29 December 1999 but had been refused asylum in the United Kingdom by the Secretary of State. In dismissing LP’s appeal on asylum grounds but allowing it on the basis of Article 3 of the Convention, the Tribunal gave the following guidance in the headnote to its determination:

“(1) Tamils are not per se at risk of serious harm from the Sri Lankan authorities in Colombo. A number of factors may increase the risk, including but not limited to: a previous record as a suspected or actual LTTE member; a previous criminal record and/or outstanding arrest warrant; bail jumping and/or escaping from custody; having signed a confession or similar document; having been asked by the security forces to become an informer; the presence of scarring; return from London or other centre of LTTE fundraising; illegal departure from Sri Lanka; lack of an ID card or other documentation; having made an asylum claim abroad; having relatives in the LTTE. In every case, those factors and the weight to be ascribed to them, individually and cumulatively, must be considered in the light of the facts of each case but they are not intended to be a check list.

(2) If a person is actively wanted by the police and/or named on a Watched or Wanted list held at Colombo airport, they may be at risk of detention at the airport.

(3) Otherwise, the majority of returning failed asylum seekers are processed relatively quickly and with no difficulty beyond some possible harassment.

(4) Tamils in Colombo are at increased risk of being stopped at checkpoints, in a cordon and search operation, or of being the subject of a raid on a Lodge where they are staying. In general, the risk again is no more than harassment and should not cause any lasting difficulty, but Tamils who have recently returned to Sri Lanka and have not yet renewed their Sri Lankan identity documents will be subject to more investigation and the factors listed above may then come into play.

(5) Returning Tamils should be able to establish the fact of their recent return during the short period necessary for new identity documents to be procured.

(6) A person who cannot establish that he is at real risk of persecution in his home area is not a refugee; but his appeal may succeed under article 3 of the ECHR, or he may be entitled to humanitarian protection if he can establish he would be at risk in the part of the country to which he will be returned.

(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.

(8) The determinations about Sri Lanka listed in para 229 [of the determination – see below] are replaced as country guidance by this determination. They continue to be reported cases.”

14. Following the Court’s judgment in NA. v. the United Kingdom, application no. 25904/07, 17 July 2008 (see paragraph 67 below), the Asylum and Immigration Tribunal issued two further Country Guideline determinations. The first, AN & SS (Tamils – Colombo – risk?) Sri Lanka CG [2008] UKAIT 00063 (“AN & SS”), was published shortly after NA. and the Tribunal did not have the benefit of the Court’s decision in reaching its conclusions. The Tribunal gave the following guidance in the head note to the determination:

“Since the breakdown of the ceasefire, heightened security in the capital has restricted the operations there of the LTTE, who are focusing on ‘high-profile’ targets. The background evidence does not show that Tamils in Colombo who have stopped supporting the Tigers, or who support parties opposed to them, are at real risk of reprisals, absent some feature bringing them to prominence. The conclusion to that effect in PS (LTTE – internal flight – sufficiency of protection) Sri Lanka CG [2004] UKIAT 297, which this determination updates and supersedes, is thus affirmed.

There is no good evidence that the LTTE maintain a computerized database of their opponents, such that new arrivals in Colombo can be checked against it. Checks are, on the other hand, run on a computerized database by immigration officers when passengers arrive at Bandaranaike International Airport, or by members of the security forces when people are detained, but there is no good evidence to show that everyone who has in the past been detained and questioned about possible involvement with the LTTE is on that database. On the contrary, it is likely to contain the names only of those who are of serious interest to the authorities.

The twelve ‘risk factors’ listed in LP (LTTE area – Tamils – Colombo – risk?) Sri Lanka CG [2007] UKAIT 76 can usefully be divided into risk factors per se, one or more of which are likely to make a person of adverse interest to the authorities, and ‘background factors’, which neither singly nor in combination are likely to create a real risk, but which in conjunction with risk factors per se will intensify the risk.

A failed asylum seeker who hails from the north or east of Sri Lanka and who has no relatives or friends to turn to in Colombo will generally be able to relocate there in safety and without undue harshness. Those arriving without their National Identity Card should be able to get a replacement without too much difficulty, while the great majority of those detained at checkpoints and in cordon-and-search operations are released within a short time. A generous support package is available for five years from the International Organisation for Migration to those who return voluntarily. Those who refuse to do so cannot pray in aid the prospect of being destitute in Colombo.

PR (medical facilities) Sri Lanka CG [2002] UKIAT 4269 is, owing to its antiquity, no longer to be treated as country guidance on the availability of medical treatment for returnees. The guidance in PS and LP, however, has been considered and approved by the European Court of Human Rights in NA v United Kingdom, handed down on 17th July 2008.”

15. In the case of Veerasingham v Secretary of State for the Home Department [2008] EWHC 3044 (Admin), however, the High Court Judge noted that:

“Without seeking to throw any doubt on the decision in AN on its own facts, I reject the defendant’s submission that it forms a general assessment of the factual background dispositive of the outcome in this case, or that a future tribunal would be bound to apply that case as opposed to the assessment of the European Court of Human Rights. The tribunal in AN did not have the benefit of the Strasbourg court’s assessment of risk in such circumstances and the continuity of risk properly assessed in the light of the criteria used in adjudicating Article 3 claims. I am unaware of any tribunal decision that has done so since the AN decision.”

16. In the second, TK (Tamils – LP updated) Sri Lanka CG [2009] UKAIT 00049 (“TK”), the Tribunal found that the risk factors identified in LP and AN and SS (both cited above) were still relevant but that a subsequent country guidance case was necessary to take account of the recent major changes to the country situation in Sri Lanka. In TK, the Tribunal held that:

“The risk categories identified in LP (LTTE area – Tamils - Colombo – risk?) Sri Lanka CG [2007] UKAIT 00076 and approved by the European Court of Human Rights (ECtHR) in NA v UK, A. 25904/07, remain valid.

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 north (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.

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.

The practice of immigration judges and others of referring to “objective country evidence”, when all they mean is background country evidence, should cease, since it obscures the need for the decision-maker to subject such evidence to scrutiny to see if it conforms to legal standards for assessing the quality of Country of Origin Information (COI) as identified by the ECtHR in NA and as set out in the Refugee Qualification Directive (2004/83/EC), Article 4(1), 4(3)(a), 4(5),4(5)(a) and 4(5)(c) and the Procedures Directive (2005)85/EC), Article 8(2)(a)and (b) and 8(3).”

III. COUNTRY INFORMATION

A. Events occurring after the cessation of hostilities in May 2009

17. Extensive information about Sri Lanka can be found in NA., cited above, §§ 53-83. The information set out below concerns events occurring after the delivery of the said judgment on 17 July 2008 and, in particular, after the cessation of hostilities in May 2009.

18. Fighting between the Sri Lankan army and the LTTE intensified in early 2009, with the army taking a number of rebel strongholds in the north and east of the country. On 19 May 2009, in an address to the country’s parliament, the President of Sri Lanka announced the end of hostilities and the death of the leader of the LTTE, Velupillai Prabhakaran. It was also reported that most, if not all, of the LTTE’s leadership had been killed.

19. The previous day, the United Nations Office for the Coordination of Humanitarian Affairs had estimated that around 220,000 people had already reached internally displaced persons’ camps, including 20,000 in the last two or three days. In addition, it was believed that another 40,000-60,000 people were on their way to the camps through the crossing point at Omanthai, in the northern district of Vavuniya.

20. In July 2009, the South Asia Terrorism Portal reported that the number of killings in Sri Lanka in the previous three years (including deaths of civilians, security forces and members of the LTTE) was: 4,126 in 2006; 4,377 in 2007; 11,144 in 2008 and 15,549 between 1 January 2009 and 15 June 2009. An estimated 75-80,000 people were reported to have been killed in total over the course of the 26 year conflict.

21. In July 2009, in a Note on the Applicability of the 2009 Sri Lanka Guidelines, the United Nations High Commissioner for Refugees (“UNHCR”) observed that:

“Notwithstanding the cessation of the hostilities, the current protection and humanitarian environment in Sri Lanka remains extremely challenging. In the North, nearly the entire population from the territory formerly held by the LTTE in the North (285,000 Tamils) has been confined to heavily militarized camps in the Northern region. Although the government has gradually reduced the military presence in the camps and has pledged to start the progressive return to their villages of origin of the majority of those in the camps, it is clear that this may take a considerable amount of time. The lack of freedom of movement remains the overriding concern for this population restricting its ability to reunite with family members outside the camps, access employment, attend regular schools, and ultimately choose their place of residence.”

22. A Human Rights Watch (“HRW”) press release, dated 28 July 2009, reported that:

“The government has effectively sealed off the detention camps from outside scrutiny. Human rights organizations, journalists, and other independent observers are not allowed inside, and humanitarian organizations with access have been forced to sign a statement that they will not disclose information about the conditions in the camps without government permission. On several occasions, the government expelled foreign journalists and aid workers who had collected and publicized information about camp conditions, or did not renew their visas.”

23. A further HRW press release dated 26 August 2009 set out concerns that more than 260,000 Tamil civilians remained in detention camps without the freedom to leave.

24. In August 2009, the first post-war local elections were held in northern Sri Lanka. The BBC reported that voter turn-out was low due to the number of people who were still displaced. The governing party, the United People’s Freedom Alliance, took the majority of seats in the biggest city in the region, Jaffna. However, the Tamil National Alliance, a party sympathetic to the defeated LTTE, took the majority of seats in Vavuniya, the other town where polling took place.

25. On 7 September 2009, James Elder, the official spokesman for the United Nations Children’s Fund in Sri Lanka was ordered to leave Sri Lanka because of adverse remarks that he had made to the media about the plight of Tamils in the government-run camps.

26. On 10 September 2009 the Sri Lankan Official Government News Portal announced that the motion to extend the State of Emergency (under which the authorities have extensive anti-terrorism powers and heightened levels of security including checkpoints and road blocks) by a further month had been passed by Parliament with a majority of 87 votes.

27. In a report dated 22 October 2009, the United States of America State Department published a report entitled “Report to Congress on Incidents During the Recent Conflict in Sri Lanka”, which compiled incidents from January 2009, when the fighting intensified, until the end of May 2009. Without reaching any conclusions as to whether they had occurred or would constitute violations of international law, it set out extensive reports of enforced child soldiers, the killing of captives or combatants trying to surrender, enforced disappearances and severe humanitarian conditions during the hostilities.

28. On 21 November 2009, the Sri Lankan Government announced their decision that all internally displaced persons would be given freedom of movement and allowed to leave the detention camps from 1 December 2009.

29. In its Global Appeal 2010-2011, the UNHCR reported that:

“The Government-led military operations in northern Sri Lanka which ended in May 2009 displaced some 280,000 people, most of whom fled their homes in the last few months of the fighting. The majority of these internally displaced persons (IDPs) now live in closed camps in Vavuniya district, as well as in camps in Mannar, Jaffna and Trincomalee. An additional 300,000 IDPs, some of whom have been displaced since 1990, are also in need of durable solutions.

The IDPs originate mainly from the Mannar, Vavuniya, Kilinochchi, Mullaitivu and Jaffna districts in northern Sri Lanka, as well as from some areas in the east of the country. Though the end of hostilities has paved the way for the voluntary return of displaced people, some key obstacles to return remain. For instance, many of the areas of return are riddled with mines and unexploded ordnance. Not all are considered to be of high risk, particularly those away from former frontlines, but mine-risk surveys and the demarcation of no-go areas are urgently needed.

Other key obstacles to return include the need to re-establish administrative structures in areas formerly held by the Liberation Tigers of Tamil Eelam; the destruction or damaged condition of public infrastructure and private homes; and the breakdown of the economy - including agriculture and fisheries.

The Government of Sri Lanka is planning the return framework, and it has called on UNHCR for support with return transport, non-food items, return shelter, livelihoods support and assistance in building the capacity of local authorities.

With some progress having been recently achieved, it is hoped that a substantial number of IDPs will be able to return to their places of origin in the latter half of 2009, but a large portion of new IDPs are also likely to remain in the camps and with host families until well into 2010.”

30. In a Human Rights Report 2009, dated 11 March 2010, the United States of America State Department stated that the Sri-Lankan Government accepted assistance from NGOs and international actors for the IDP camps but management of the camps and control of assistance were under the military rather than civilian authorities. Food, water, and medical care were all insufficient in the first few weeks after the end of the war, but by July the situation had stabilised and observers reported that basic needs were being met. In June the military withdrew from inside the camps but continued to provide security around the barbed wire-enclosed perimeter. The IDPs in the largest camp, Manik Farm, were not given freedom of movement until December, when a system of temporary exit passes was implemented for those who had not yet been returned to their districts of origin. Some observers said that this exit system still did not qualify as freedom of movement.

31. The United Kingdom Border Agency Country of Origin Information Report on Sri Lanka of 11 November 2010 (“the November 2010 COI Report”) stated as follows:

“4.23 The International Crisis Group (ICG) report Sri Lanka: A Bitter Peace, 11 January 2010, also referred to ‘extra-legal detention centres’ maintained by the military and observed: ‘These detained have had no access to lawyers, their families, ICRC or any other protection agency, and it is unclear what is happening inside the centres. In addition, the grounds on which the ex-combatants have been identified and the legal basis on which they are detained are totally unclear and arbitrary’. Given the well-established practice of torture, enforced disappearance and extra-judicial killing of LTTE suspects under the current and previous Sri Lankan governments, there are grounds for grave concerns about the fate of the detained. The government has announced that of those alleged ex-combatants currently detained, only 200 will be put on the trial; most will be detained for a further period of ‘rehabilitation’ and then released.”

...

4.25 Referring to the ‘at least 11,000 people’ detained ‘in so-called ‘rehabilitation centers’ because of their alleged association with the LTTE, the HRW document Legal Limbo, The Uncertain Fate of Detained LTTE Suspects in Sri Lanka, released on 29 January 2010, observed: “The government has routinely violated the detainees’ fundamental human rights, including the right to be informed of specific reasons for arrest, the right to challenge the lawfulness of the detention before an independent judicial authority, and the right of access to legal counsel and family members. The authorities’ consistent failure to inform families of the basis for the detainees’ arrest and their whereabouts raises serious concerns that some detainees may have been victims of torture and ill-treatment, which are more likely to take place where due process of law is lacking and which have long been serious problems in Sri Lanka. Given the lack of information about some detainees, there is also a risk that some may have been ‘disappeared’.”

4.31 The UNHCR ‘Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka’, 5 July 2010 reported that ‘In the wake of the conflict, almost 11,000 persons suspected of LTTE links were arrested and detained in high-security camps’ adding that ‘According to a Government survey, as of 1 March 2010, 10,781 LTTE cadres were being held at 17 centres. Among the detainees were 8,791 males and 1,990 females,’ and noted that ‘Some of the adult detainees have...been released after completing rehabilitation programmes or because they were no longer deemed to present a risk, including some persons with physical disabilities.’”

32. The November 2010 COI Report also set out:

“4.09 The EIU (The Economist Intelligence Unit), Country Report, Sri Lanka, July 2010 reported: ‘The EU has warned that Sri Lanka faces losing trade advantages under the Generalised System of Preferences-Plus (GSP-Plus) scheme from August 15th, unless the Government commits itself in writing to improving its human rights record. The EU has put forward 15 conditions that it says the Government needs to promise to meet within the next six months. These include: ensuring that the 17th amendment to the constitution, which requires that appointments to public positions be impartial and reflect the country’s ethnic and religious mix, is enforced; repealing parts of the Prevention of Terrorism Act that are incompatible with Sri Lanka’s covenants on political and human rights; reforming the criminal code to allow suspects immediate access to a lawyer on arrest; and allowing journalists to carry out their professional duties without harassment. However, the Government has rebuffed the EU, stressing that the issues that it has raised are internal political matters that should not be linked to trade. The EU is not the only international body currently putting pressure on the government. Sri Lanka has also rejected the UN’s appointment of a three-member panel to examine possible human rights violations during the island’s civil war. The Sri Lankan authorities have warned that they will not provide visas for panel members to enter the country.’”

...

4.11 The EIU, Country Report, Sri Lanka, August 2010 noted that: ‘The decision by the UN secretary-general, Ban Ki-moon [on 22 June 2010], to appoint a panel to examine accountability issues stemming from the final stages of the island’s civil war, which ended in May 2009, has prompted a strong reaction in Sri Lanka ...’

4.12 On 17 September 2010 the UN News Service reported that ‘Secretary-General Ban Ki‑moon has held his first meeting with the panel of experts set up to advise him on accountability issues relating to alleged violations of international humanitarian and human rights law during the final stages last year of the conflict in Sri Lanka.’ The source also noted that the role of the experts was to examine “the modalities, applicable international standards and comparative experience with regard to accountability processes, taking into account the nature and scope of any alleged violations in Sri Lanka.”

B. The treatment of returned failed asylum seekers at Colombo airport

1. United Kingdom Government Reports

33. The United Kingdom Border Agency Country of Origin Information Report on Sri Lanka of 18 February 2009 (“the February 2009 COI Report”) sets out a series of letters from the British High Commission, Colombo, (“BHC”) on arrival procedures at Colombo airport. In its letter of 28 August 2008, the BHC observed:

“(T)he correct procedure for (Department of Immigration and Emigration (DIE)) officers is to record the arrival of these persons manually in a logbook held in the adjacent Chief Immigration Officer’s office. The name, date and time of arrival and arriving flight details are written into the log. It records why the person has come to their attention and how the case was disposed of. I have had the opportunity to look at the log, and it appears that the only two ways of disposal are to be passed to the Criminal Investigations Department (CID), or allowed to proceed.

The office of the State Intelligence Service (SIS) is in the immigration arrivals hall and an officer from SIS usually patrols the arrivals area during each incoming flight. Invariably, if they notice a person being apprehended they approach IED (Immigration and Emigration Department) and take details in order to ascertain in (sic) the person may be of interest to them. Their office contains three computer terminals, one belonging to the airport containing flight information and two stand-alone terminals. If an apprehended person is considered suitable to be passed to CID, they are physically walked across the terminal building to the CID offices. A CID officer should then manually record the arrival of the person in a logbook held in their office...often persons shown in the DIE logbook to have been handed to CID are never actually recorded as being received in the CID logbook. It is believed that CID has allowed these persons to proceed and no action has been taken against them.”

34. The same letter also noted that CID offices at the airport contained two computers, which were not linked to any national database. Any checks on persons detained or apprehended were conducted over the phone with colleagues in central Colombo. There were no fingerprint records at the airport. One computer contained records of suspects who had been arrested and charged with offences, and court reference numbers. It continued as follows:

“Were a Sri Lankan national to arrive at Colombo Airport having been removed or deported from the United Kingdom, they would be in possession of either a valid national Sri Lankan passport, or an emergency travel document/temporary passport, issued by the Sri Lankan High Commission in London. The holder of a valid passport would have the document endorsed by the immigration officer on arrival and handed back to him/her. A national passport contains the national ID card number on the laminated details page. I have made enquiries with the DIE at Colombo Airport, and with the International Organisation for Migration who meet certain returnees at the airport, and both have confirmed that a person travelling on an emergency travel document is dealt with similarly. They too have the document endorsed by the immigration officer on arrival and returned to them. Before issuing an emergency travel document, the Sri Lankan High Commission in London will have details of an applicant confirmed against records held in Colombo and will thus satisfactorily confirm the holder’s nationality and identity. If a returnee subsequently wishes to obtain a national identity card, they have to follow the normal procedures.”

35. In a letter dated 22 January 2009, the BHC reported that an official had spent several hours observing the return of failed asylum seekers from the United Kingdom, including those who were in possession of emergency travel documents, issued by the Sri Lankan High Commission in London. In the official’s opinion, the fact that certain returnees had been issued with emergency travel documents by the Sri Lankan High Commission in London did not seem to make any difference to their treatment upon arrival.

36. The Report of Information Gathering Visit to Colombo on 23 to 29 August 2009, conducted jointly by the Foreign and Commonwealth Office Migration Directorate and United Kingdom Border Agency Country of Origin Information Service (“the Report of Information Gathering Visit, August 2009”), concluded that all enforced returns (of whatever ethnicity) were referred to the CID at the airport for nationality and criminal record checks, which could take more than 24 hours. All enforced returns were wet-fingerprinted. Depending on the case, the individual could also be referred to the SIS and/or the Terrorist Investigation Department for questioning. Anyone who was wanted for an offence would be arrested.

37. The report set out that those with a criminal record or LTTE connections would face additional questioning and might 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

-Criminal record

-Connection with the LTTE

-Bail jumping/escape from custody

-Illegal departure from Sri Lanka

-Scarring

-Involvement with media or NGOs

-Lack of an ID card or other documentation

38. The November 2010 COI report set out the following:

“33.20 The BHC letter of 30 August 2010 went on to observe that: ‘At the beginning of 2010, partly due to the large numbers of Sri Lankans being returned from around the world and causing logistical problems, CID procedures were relaxed in that they no longer had to detain returnees until written confirmation was received from the local police. All returnees are still interviewed, photographed and wet fingerprinted. The main objective of these interviews is to establish if the returnee has a criminal record, or if they are wanted or suspected of committing any criminal offences by the police. The photographs are stored on a standalone computer in the CID office at the airport. The fingerprints remain amongst paper records also in the CID office at the airport. Checks are initiated with local police, but returnees are released to a friend or relative, whom CID refers to as a surety. This surety must provide evidence of who they are, and must sign for the returnee. They are not required to lodge any money with CID. The main CID offices at Colombo Airport, which are housed on the ground floor adjacent to the DIE embarkation control, are currently undergoing a complete refurbishment funded by the Australian government. The one completed office suite has three purpose built interview rooms, and facilities where returnees can relax and eat meals.’

...

33.22 A British High Commission letter of 14 September 2010 reported: ‘There is strong anecdotal evidence that scarring has been used in the past to identify suspects. Previous conversations with the police and in the media, the authorities have openly referred to physical examinations being used to identify whether suspects have undergone military style training. More recent claims from contacts in government ministries suggest that this practice has either ceased or is used less frequently. At the very least it appears that the security forces only conduct these when there is another reason to suspect an individual, and are not looking for particular scars as such, but anything that may indicate the suspect has been involved in fighting and/or military training. There is no recent evidence to suggest that these examinations are routinely carried out on immigration returnees.’”

2. Other Sources

39. On 19 October 2009, Tamilnet reported that twenty-nine Tamil youths were taken into custody by the State Intelligence Unit of the Sri Lanka Police at the International Airport in two separate incidents whilst trying to leave Sri Lanka. It was also reported that since July 2009, special teams of the State Intelligence Unit and police had been deployed in the airport to monitor the movement of Tamils who try to go abroad.

C. The treatment of Tamils in Colombo

40. The Report of Information Gathering Visit, August 2009, stated that the frequency of cordon and search operations had not reduced significantly in recent months, though there were fewer large-scale operations than in previous years. In general, young male Tamils originating from the north and east of the country were most at risk of being detained following cordon and search operations, with the presence of the risk factors set out above increasing that risk. Those without employment or legitimate purpose for being in Colombo were also likely to be seen as suspect. The same report also noted that most sources agreed that there had been few, if any, abductions or disappearances since June 2009. There was not a great deal of available information about the profile of Tamils targeted for abduction, although it appeared that people linked to the media might be more vulnerable. Police did not generally carry out effective investigations. It went on to note that most sources agreed that there had not been any significant reduction in the number of checkpoints in Colombo, whose stated purpose remained to detect and prevent terrorist activity. In general those most likely to be questioned were young Tamils from the north and east; those without ID; those not resident or employed in Colombo; and those recently returned from the West. However, most sources said that arrests at checkpoints were rare and none had been reported since June 2009. It was reportedly fairly likely that someone would be stopped at a checkpoint en route from the airport to Colombo city. Finally, it clarified that people who wished to live in Colombo but did not originate from there were required to register with the local police station with a national ID card or full passport, and give details of planned length and purpose of stay. In theory, whilst anyone was entitled to register to stay in Colombo, some sources suggested that young Tamil men originally from the north or east of the country could encounter difficulties and face closer scrutiny. The presence of any of the risk factors set out above would also attract greater attention from the police.

D. The treatment of Tamils in general

1. United Nations Reports

41. The UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, April 2009 (“the April 2009 Guidelines”) observed that:

“The significant majority of reported cases of human rights violations in Sri Lanka involve persons of Tamil ethnicity who originate from the North and East...In Government-controlled areas, Tamils who originate from the North and the East, which are, or have been under LTTE control, are frequently suspected as being associated with the LTTE. For this reason, Tamils from the North and the East are at heightened risk of human rights violations related to the implementation of
anti-terrorism and anti-insurgency measures. While this risk exists in all parts of Sri Lanka, it is greatest in areas in which the LTTE remains active, and where security measures are heaviest, in particular the North and parts of the East, and in and around Colombo.”

42. The Guidelines also noted that the Government had been heavily criticised for the high number of Tamils who have been subjected to arrest and security detention, particularly on the basis of information gathered in registration exercises and questioning at cordons and road checkpoints in and around the capital.

43. The UNHCR Note on the Applicability of the 2009 Sri Lanka Guidelines, (see paragraph 21 above) observed:

“The country of origin information that UNHCR has considered indicates that Tamils from the North of Sri Lanka continue to face a significant risk of suffering serious human rights violations in the region (and elsewhere in the country) because of their race (ethnicity) or (imputed) political opinion. Tamils in the North are still heavily targeted in the security and anti-terrorism measures described in the Guidelines. Wide scale detention and confinement of Tamils from the North remains a serious concern. Pro-Government paramilitary elements also continue to operate with impunity against Tamils in the North.”

44. The UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka of 5 July 2010 (“the July 2010 Guidelines”), which superseded the April 2009 Guidelines, contained information on the particular profiles for which international protection needs may arise in the current context. It was stated that:

“Given the cessation of hostilities, Sri Lankans originating from the north of the country are no longer in need of international protection under broader refugee criteria or complementary forms of protection solely on the basis of risk of indiscriminate harm. In light of the improved human rights and security situation in Sri Lanka, there is no longer a need for group-based protection mechanisms or for a presumption of eligibility for Sri Lankans of Tamil ethnicity originating from the north of the country. It is important to bear in mind that the situation is still evolving, which has made the drafting of these Guidelines particularly complex.”

45. In summary, the following were UNHCR’s recommendations: all claims by asylum seekers from Sri Lanka should be considered on the basis of their individual merits according to fair and efficient refugee status determination procedures and up-to-date and relevant country of origin information. UNHCR considered that, depending on the particular circumstances of the case, some individuals with profiles similar to those outlined in the Guidelines require a particularly careful examination of possible risk. These risk profiles, while not necessarily exhaustive, are set out below:

(i) persons suspected of having links with the Liberation Tigers of Tamil Eelam (LTTE); (ii) journalists and other media professionals; (iii) civil society and human rights activists; (iv) women and children with certain profiles; and (v) lesbian, gay, bisexual and transgender (LGBT) individuals.

2. Other Sources

46. A report commissioned by the applicant’s representatives from Dr Chris Smith (“Dr Smith’s report”) and dated 5 February 2007, includes the following relevant paragraphs:

“Given the treatment of Tamils, the authorities would question as to why any Tamil would want to come back and a significant exodus from the North is anticipated. The authorities may well conclude that, given their second class status, the only reason to return would be to lend support to the LTTE or whatever comes in its place. As such, returnees are likely to face a difficult time, especially at the airport.

The applicant was held for 5 days and the severity of his ill-treatment indicates that he was of adverse interest to the authorities who detained him. As such, his record will most likely have been included on the central database, particularly since he was released on reporting conditions which he subsequently violated. He has visible scars which could trigger adverse interest at the airport and, furthermore, the fact that he left Sri Lanka using false documentation will further contribute to risk and vulnerability at the airport. As such, it is very likely that the applicant will be detained on arrival and this will place him at considerable risk of ill-treatment, torture and, even, sexual abuse.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLES 2 and 3 OF THE CONVENTION

47. The applicant complained that his removal to Sri Lanka would violate his rights under Articles 2 and 3 of the Convention. Article 2 of the Convention provides that:

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”

48. Article 3 of the Convention provides that:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

49. The Government contested that argument.

A. Admissibility

50. The Court finds that it is more appropriate to deal with the complaint under Article 2 in the context of its examination of the related complaint under Article 3 and will proceed on this basis (see NA., cited above, § 95). It notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.MeritsThe parties’ submissions

a) The applicant’s submissions

51. The applicant submitted that there were substantial grounds for believing that he would be at risk of being detained and ill-treated by the authorities at the airport or in Colombo such as to constitute a breach of Article 3 if he were returned to Sri Lanka.

52. In particular, he submitted that the situation in Sri Lanka had deteriorated since the Court’s judgment in NA., cited above. In support, he referred to the April 2009 Guidelines (see paragraph 41 above). He submitted that these highlighted the fact that the armed conflict had escalated from mid-2008 until the date of the report; that conditions in high security camps were not consistent with international standards for the treatment of displaced persons; that in those camps there was a screening process to identify LTTE suspects; and that Tamils from the north suspected of affiliation to the LTTE were at high risk of harassment, arrest, detention, torture, abduction or killing. The April 2009 Guidelines therefore supported his contention that he would be at risk of treatment contrary to Article 3 of the Convention if he were to be returned.

53. The applicant further relied on Dr Smith’s report (see paragraph 46 above), which indicated that as Tamils had become second-class citizens in their own country, the authorities may conclude that the only reason to return would be to lend support to the LTTE. As such, they were likely to face a difficult time, especially at the airport.

54. In relation to the risk factors identified in LP and NA., both cited above, the applicant submitted that there were clearly substantial grounds for believing that he would be detained and ill-treated at the airport given his record of past detention; his departure from Sri Lanka in breach of reporting conditions; his past membership of the LTTE; his scarring; and the fact that he was a Tamil from the north, who had left Sri Lanka illegally and was returning from London as a failed asylum seeker.

55. In relation to his LTTE membership, the applicant submitted that the fact that he had been an LTTE member of rank and had been released on reporting conditions pointed to his detention being one that would be on record and which was clearly formal. The applicant further submitted that a breach of reporting conditions should be treated in the same way as bail jumping in the assessment of risk.

56. With regard to the scarring, the applicant argued that his record of past detention would increase the risk that he would be arrested and detained at the airport. While his scars would not be readily visible when covered by clothing, they would be apparent if he were to be checked or strip searched by the authorities.

57. Should it be concluded that the applicant would not be at risk at the airport itself, he submitted that he would be at risk in Colombo. In particular, he submitted that there was a real risk that he would be arrested either at a check point or in a round-up at a lodge. That risk would be further increased while the applicant was without an ID card, as this was the only acceptable evidence of identity and must be carried at all times. If arrested there was a real risk that the applicant’s records would be checked and his history of detention and breach of reporting conditions would come to light. It was also likely that at that stage his scars would be seen by the police and viewed as confirmation of past involvement with the LTTE.

b) The Government’s submissions

58. The Government accepted, for the purposes of the proceedings before the Court, that the applicant had been detained by the army for five days in April 1996 and ill-treated in the manner described. They maintained, however, that he was not of sufficient interest to the Sri Lankan authorities to warrant his arrest and detention on return and, consequently, that there would be no risk of ill-treatment contrary to Article 3 of the Convention.

59. The Government challenged the country information relied on by the applicant. They indicated that the situation in Sri Lanka had developed to such an extent since the publication of the April 2009 Guidelines, that the UNHCR had published a note on their applicability (see paragraph 21 above). The Government argued that, insofar as UNHCR recommended that Tamil asylum-seekers from the north should be granted asylum, that recommendation was based on information about the risk to Tamils “in the region” and there was no indication that the Note had in any way considered the risk in Colombo generally. Moreover, they submitted that, following NA., little weight should be attached to the UNHCR’s assessment as its comments were not focused on the question of whether there was a risk of ill-treatment contrary to Article 3 of the Convention. Consequently, it provided no support for the applicant’s assertion that there was a real risk he would be subjected to treatment contrary to Article 3 of the Convention if he were returned to Colombo. Instead, the Government relied on the then most recent Country of Origin Information report, published by the United Kingdom Border Agency on 13 October 2009, which contained the most up-to-date publicly available information.

60. The Government further observed that Dr Smith’s evidence had been criticised by the Asylum and Immigration Tribunal in LP (cited above). In particular, the Tribunal had noted that, “some of the evidence given by Dr Smith appeared to be simply wrong” and, “there are a number of places where he demonstrably exaggerated the risk to the appellant”. In AN & SS (cited above), the Tribunal was again critical of Dr Smith’s evidence, fearing that Dr Smith was “going beyond his expertise and simply speculating”. Dr Smith’s report in the present application suffered from the same defects as his evidence before the Tribunal, according to the Government, as it drew largely on material that pre-dated the evidence in both LP and AN & SS, and it focused more on the general humanitarian situation than on the possibility of the applicant being exposed to a real risk of treatment contrary to Article 3.

61. The Government submitted that, following NA., cited above, in order to establish a breach of Article 3 of the Convention, the applicant would have to show that there were serious reasons to believe that he was of sufficient interest to the authorities to warrant his detention and interrogation, either because he was likely to be detained and interrogated at Colombo airport, or because he had such a high profile as an opposition activist or as someone viewed by the LTTE as a renegade or traitor so as to be at risk more generally in Colombo. The Government argued that it was clear from the evidence before the Court that the applicant did not fall into the second category. In particular, they noted that he had been allowed to leave the LTTE and return home, and that he had subsequently led a normal life until his detention in 1996. The question of whether the applicant was likely to be detained and interrogated at the airport had to be assessed by reference to the risk factors identified by the Asylum and Immigration Tribunal in LP and approved by the Court in NA (cited above, § 13).

62. Although the Government accepted that the applicant had been detained and tortured, they submitted that this had taken place over thirteen years ago and, unlike in the case of the applicant in NA., there was no evidence that there would be any record of that detention. In particular, there was no evidence of an arrest warrant or a criminal record, and there was no evidence that the applicant had been photographed or fingerprinted. Moreover, the Adjudicator had found that even though the applicant had breached his reporting condition by leaving the country, he had been able to travel through checkpoints without difficulty, which he could not have done had he been of interest to the authorities. The Government further submitted that the applicant did not fall into the risk category of “bail jumping” or “escaping from custody”. On the available evidence it was much more likely that the applicant had been released without any requirement for bail as appeared to be “common practice” outside Colombo. Furthermore, the fact that he had not complied with his reporting requirement did not appear to have led to the creation of any formal record.

63. In relation to the applicant’s scars, the Government submitted that the Court could not go behind the Adjudicator’s findings that they were not readily visible and would not bring the applicant to the attention of the authorities. The Adjudicator had had the benefit of seeing the applicant give evidence and of examining the scars, and the applicant had not submitted any evidence to undermine the Adjudicator’s clear finding of fact.

64. With regard to the risk factors of returning from London; having made an asylum claim abroad; illegal departure from Sri Lanka; and lack of an ID card, the Government relied on the Court’s finding in NA. that these would be “contributing factors” which would need other, perhaps more compelling, factors before a real risk could be established.The Court’s assessment

a) General principles

65. The Court reiterates that Contracting States have the right as a matter of international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens (Üner v. the Netherlands [GC], no. 46410/99, § 54, ECHR 2006‑....). However, expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3. In such a case, Article 3 implies an obligation not to deport the person in question to that country (Saadi v. Italy [GC], no. 37201/06, § 125, ECHR 2008-...). The assessment of whether there are substantial grounds for believing that the applicant faces such a real risk inevitably requires that the Court assess the conditions in the receiving country against the standards of Article 3 of the Convention (Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 67, ECHR 2005‑I). These standards imply that the ill‑treatment the applicant alleges he will face if returned must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this is relative, depending on all the circumstances of the case (Hilal v. the United Kingdom, no. 45276/99, § 60, ECHR 2001‑II).

66. In order to determine whether there is a real risk of ill-treatment in this case, the Court must examine the foreseeable consequences of sending the applicant to Sri Lanka, bearing in mind the general situation there and his personal circumstances (see Vilvarajah and Others v. the United Kingdom, 30 October 1991, § 108 in fine, Series A no. 215). If an applicant has not yet been extradited or deported when the Court examines the case, the relevant time will be that of the proceedings before the Court (see Saadi v. Italy, cited above, § 133). A full and ex nunc assessment is called for as the situation in a country of destination may change over the course of time. Even though the historical position is of interest insofar as it may shed light on the current situation and its likely evolution, it is the present conditions which are decisive and it is therefore necessary to take into account information that has come to light since the final decision taken by the domestic authorities (see Salah Sheekh v. the Netherlands, no. 1948/04, § 136, ECHR 2007‑I (extracts)).

67. The Court also recalls its findings in NA., cited above:

“128. It follows that both the assessment of the risk to Tamils of ‘certain profiles’ and the assessment of whether individual acts of harassment cumulatively amount to a serious violation of human rights can only be done on an individual basis. Thus, while account must be taken of the general situation of violence in Sri Lanka at the present time, the Court is satisfied that it would not render illusory the protection offered by Article 3 to require Tamils challenging their removal to Sri Lanka to demonstrate the existence of further special distinguishing features which would place them at real risk of ill-treatment contrary to that Article (see Salah Sheekh, cited above, § 148 and paragraphs 116–117 above).

129. The Court therefore considers that it is in principle legitimate, when assessing the individual risk to returnees, to carry out that assessment on the basis of the list of ‘risk factors’, which the domestic authorities, with the benefit of direct access to objective information and expert evidence, have drawn up. The Court also notes that the AIT in LP considered all the relevant risk factors identified and put before it by the appellant in that case and that the AIT itself was careful to avoid the impression that these risk factors were a ‘check list’ or exhaustive. It further notes that in the present case, the parties’ observations as to the individual risk to the applicant are made with reference to the same risk factors considered in LP. Furthermore, the applicant has not identified any further risk factors which were not considered in LP but which would assist the Court in its assessment. As it has recalled, the Court’s own assessment must be full and ex nunc (paragraph 112 above) but on the basis of the objective evidence before it, the Court itself does not consider it necessary to identify any additional risk factors which have not been duly considered by the domestic authorities or raised by the parties in their observations.

130. Despite this conclusion, the Court emphasises that the assessment of whether there is a real risk must be made on the basis of all relevant factors which may increase the risk of ill-treatment. In its view, due regard should also be given to the possibility that a number of individual factors may not, when considered separately, constitute a real risk; but when taken cumulatively and when considered in a situation of general violence and heightened security, the same factors may give rise to a real risk. Both the need to consider all relevant factors cumulatively and the need to give appropriate weight to the general situation in the country of destination derive from the obligation to consider all the relevant circumstances of the case (see the Hilal judgment, cited above, § 60).”

b) Relevant considerations

68. The Court further recalls its recent findings in T.N. v. Denmark, application no. 20594/08, § 93, 14 December 2010 that, although the situation in Sri Lanka has altered since NA., with the end of hostilities and consequent changes, the principles set down in NA. are still entirely relevant in determining whether a Tamil returned to Sri Lanka will or will not face a real risk.

69. The Court also finds that, in the light of the various sources of background country evidence on Sri Lanka, the current situation in the country has been accurately set out in the Country Guidance case of TK, cited above. The Court recognises the comprehensive review of background and expert evidence carried out by the Asylum and Immigration Tribunal which heard TK. The Court also takes note of the background evidence set out above which has been issued since TK was handed down, such as the November 2010 COI report, which details the relaxation of certain procedures at Colombo airport (see paragraph 38 above) and the July 2010 Guidelines, which state that only Tamils with particular profiles will be in need of international protection (see paragraphs 44-45 above). The Court notes in particular that the July 2010 Guidelines represent the most recent guidance issued by the UNHCR and state that, given the improved situation in Sri Lanka, group-based protection is no longer necessary and each case should be assessed on its individual merits, having regard to the risk profiles. Drawing on all these sources, the Court finds that the risk factors identified in LP and endorsed by this Court in NA. are still applicable but, given the end of hostilities, the likelihood of a Tamil returning to Colombo being the subject of adverse interest on the part of the Sri Lankan authorities has, if anything, declined (see TK, cited above).

70. The Court finally notes that the expert report obtained by the present applicant from Dr Smith (see paragraph 46 above) differs greatly from the rest of the background evidence, in finding that the situation in Sri Lanka is likely to be worse than before for Tamil returnees. However, given that his views are highly discrepant to the preponderance of the country evidence, and given that his opinions have been criticised by the Asylum and Immigration Tribunal, the Court shares the Government’s view that Dr Smith’s report in this case carries limited weight. The Court attaches far more weight to the other background evidence cited above and to the principles elaborated by the Tribunal which has had the benefit of examining in detail this background evidence and reports from other experts, in the series of relevant cases which began with LP.

c) Application to the facts of the case

71. In considering whether the applicant has established that he would be at real risk of ill-treatment in Sri Lanka, the Court observes as a preliminary matter that the Government propose to remove him to Colombo. In the light of this, the Court does not consider it necessary to examine the risk to Tamils in any other part of the country outside Colombo and will proceed to examine the risk to Tamils returning to Sri Lanka on this basis.

72. The Court notes that for the purposes of this case, the Government have accepted that the applicant was detained by the army and ill-treated in 1996 as he alleged. The applicant’s version of events was also accepted by the Adjudicator who heard his appeal in 2002. However, when the Secretary of State refused to treat the applicant’s representations as a fresh claim on 27 August 2008, it was explicitly stated that it was not accepted that the applicant had been tortured as he claimed. The Secretary of State doubted that the applicant had been involved with the LTTE as he alleged. Thus, while the applicant’s case was considered in the light of LP, this consideration was carried out on the basis that the applicant did not possess certain risk factors, such as a record as a former LTTE member, which the Adjudicator had already accepted that the applicant possessed. The Court does not therefore consider that the applicant’s case was properly assessed in the light of the relevant case extant at the time. It is unfortunate, in the Court’s view, that the Secretary of State did not consider the findings of the Adjudicator who had had the opportunity to see the applicant give evidence in person. In so doing, the Secretary of State does not appear to have had regard to risk factors which, it is accepted, applied to the applicant and which were of relevance to the consideration of his claim in the light of the then-recent and still relevant case-law.

73. The Court now turns to its examination of the likely risk to the applicant, having regard to all his personal circumstances, if returned to Sri Lanka at the present time. The applicant’s case can be interpreted in the light of the NA. risk factors as follows. He possesses various factors which, as the Asylum and Immigration Tribunal observed in AN and SS (cited above), can be construed as “background factors” in that they would not suffice to give rise to a real risk when taken alone, but may increase the risk to the applicant when taken in conjunction with other, more specific risk factors. The background factors which apply to this applicant include Tamil ethnicity, having made an asylum claim abroad, and return from London. It is not clear from the documents submitted to the Court whether the applicant possesses an identity document or not; though it would appear likely that, given the length of time that he has been absent from Sri Lanka, he does not.

74. Regarding the applicant’s previous record, the Court notes that the Adjudicator accepted that the applicant had been a member of the LTTE and that the Government have not disputed this claim. The Court therefore takes as its starting point the fact that the applicant was an active member of the LTTE and was arrested in a round-up. The Sri Lankan authorities have therefore, in the past at least, been aware or suspicious that the applicant was involved with the LTTE. The Court takes the view that, given that the manner of the applicant’s release from custody is highly indicative of the authorities’ level of interest in him, the risk factor of his previous record as an LTTE member is best considered alongside the next risk factor.

75. The Court notes that, in LP (cited above), the Asylum and Immigration Tribunal found that having jumped bail or escaped from custody represented a further possible risk factor for Tamils returning to Sri Lanka. The Court is of the view that this risk factor is best construed as a specific, rather than background, factor. However, the Court also notes that, in the case of the applicant, this risk factor does not apply. The applicant did not jump bail or escape from custody but was released on the condition that he report regularly at the army camp. The Court does not consider that the duty to report following release is comparable to being subject to bail, which is granted in the context of pending criminal proceedings. The fact that the applicant was released from custody, albeit conditionally, indicates that the authorities did not have a continuing strong level of interest in him. If he were considered still to be dangerous or to have further information to divulge, he would have been kept in custody. The Court further notes that, even after reneging on his duty to report, the applicant was able to travel through Sri Lanka and pass various checkpoints in order to leave the country, which he did through normal channels. This ability to travel and to leave the country corroborates the finding that the applicant was no longer of such interest to the authorities that he would be re-arrested. It also indicates that no record of the applicant’s detention had been kept and indeed, the Court notes that there is no evidence in this case that the applicant’s detention was recorded. This differentiates this applicant from the applicant in NA. v. the United Kingdom, cited above, in respect of whom it was accepted that a record had been made of at least his last detention. The Court therefore finds that, although this applicant had been identified as an LTTE member, following his detention and prior to his departure from Sri Lanka, he was not of continuing interest to the authorities.

76. Furthermore, the Court takes the view that nothing that has transpired since the applicant’s arrival in the United Kingdom would serve to heighten the level of interest or suspicion that he holds for the authorities in Sri Lanka. As observed in TK (cited above), the conflict between the Sri Lankan Government and the LTTE has now ended, and the level of adverse interest in failed Tamil asylum seekers who return to the country has, if anything, decreased. The general country situation is not, therefore, conducive to any increased interest in the applicant. Furthermore, the applicant has been absent from his country of origin for ten years and has not at any stage raised any suggestion that he has maintained links with the LTTE in any way. In particular, he has not sought to argue that he has been involved in fund-raising for the LTTE or has supported the organisation in any other way from the United Kingdom, such as might have brought him to the attention of the authorities. There is therefore no reason specific to the applicant for the authorities’ interest in him to have intensified during his absence from Sri Lanka.

77. The Court notes that the applicant has some scarring to his scalp, legs and elbows. This was accepted by the Adjudicator, who had sight of the scars at the applicant’s hearing, and has been confirmed in medical evidence submitted to this Court. The accepted position, therefore, is that the applicant has a number of scars which were sustained during a shell attack.

78. The Court notes that, on the one hand, the Adjudicator, who inspected the applicant’s scars at his hearing, found that his scars were not readily visible; would not be on display during the course of day to day living; and would not cause the applicant to stand out or bring him to the attention of the authorities. On the other hand, Dr Smith at paragraphs 108-118 of his report (see paragraph 46 above) states that the applicant’s scars are visible and significant and that members of the Sri Lankan security forces take a special interest in those who either arrive in Sri Lanka with visible scarring or whose scars are revealed during a strip search. He also noted that the applicant’s scars on his elbows would be visible if he were to dress in normal Sri Lankan attire of a short-sleeved shirt. The scars on his legs would be visible if he were to wear shorts. The scars on his head were at present covered by his hair but would be revealed if the applicant were to go bald. The Court reiterates that it has attached limited weight to Dr Smith’s report and prefers the findings of the Adjudicator for this reason.

79. The Court takes the view that the crucial question is whether the applicant is likely to come to the attention of the authorities as he passes through the airport (see NA., cited above, § 134). His scars, as described by the Adjudicator who, unlike this Court, had the opportunity of seeing the applicant in person, do not appear to be such as would attract special attention. The Court does not, therefore, consider that the applicant’s scarring alone, even taken in conjunction with the background risk factors discussed above and even whilst the applicant is passing through the airport and thus subject to a greater degree of scrutiny and control by the Sri Lankan authorities, would attract sufficient attention to render him at risk of detention, interrogation and ill-treatment.

80. The applicant would be returned to Sri Lanka as a failed asylum seeker from the United Kingdom, who has in the past been known to the authorities as a former LTTE member but who was released from custody as being of no further interest. He was arrested on only one occasion, unlike the applicant in NA. v. the United Kingdom, cited above, who had been arrested six times. This applicant has scars which would be seen if he were to be strip searched as he passed through the airport; however, the Court is of the view that the risk of strip searching is slight given that the applicant is not actively “wanted” by the authorities and his name will not appear on any list of those who are wanted, who have jumped bail or who have escaped from prison or army custody. In any event, the applicant’s scarring was in large part sustained from a shelling incident and cannot therefore be described as characteristic of having undergone LTTE training or having been tortured in custody, which are the types of scarring most likely to rouse suspicion.

81. Upon an overall examination of the applicant’s case, the Court is of the view that the combination of risk factors which apply to him, of which the predominant factors are his previous record as an LTTE member and his scarring, are not sufficient to put him at real risk of detention and
ill-treatment should he be returned to Sri Lanka. Accordingly, the applicant’s removal to Sri Lanka would not give rise to a violation of Article 3 of the Convention.

II. RULE 39 OF THE RULES OF COURT

82. The Court recalls that, in accordance with Article 44 § 2 of the Convention, the present judgment will not become final until (a) the parties declare that they will not request that the case be referred to the Grand Chamber; or (b) three months after the date of the judgment, if reference of the case to the Grand Chamber has not been requested; or (c) the Panel of the Grand Chamber rejects any request to refer under Article 43 of the Convention.

83. It considers that the indication made to the Government under Rule 39 of the Rules of Court (see above § 3) must continue in force until the present judgment becomes final or until the Panel of the Grand Chamber of the Court accepts any request by one or both of the parties to refer the case to the Grand Chamber under Article 43 of the Convention.

FOR THESE REASONS, THE COURT

1. Declares the application admissible unanimously;

2. Holds by five votes to two that there would be no violation of Article 3 of the Convention in the event of the applicant’s removal to Sri Lanka; and

3. Decides unanimously to continue to indicate to the Government under Rule 39 of the Rules of Court that it is desirable in the interests of the proper conduct of the proceedings not to remove the applicant until such time as the present judgment becomes final or further order.

Done in English, and notified in writing on 31 May 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Lawrence EarlyLech Garlicki
RegistrarPresident

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the joint dissenting opinion of Judges Garlicki and Kalaydjieva is annexed to this judgment.

L.G.
T.L.E.

JOINT DISSENTING OPINION OF JUDGES GARLICKI AND KALAYDJIEVA

1. It is with regret that we cannot follow the position of the majority in this case.

We do not challenge the general finding that, given the evolution of the situation in Sri Lanka, group-based protection may no longer be necessary. However, we are of the opinion that the applicant’s personal situation does not allow his deportation to this country without a risk of exposing him to treatment contrary to Article 3 of the Convention.

2. The majority identified (see paragraphs 73-77) eight “risk factors” in the applicant’s case: (1) Tamil ethnicity; (2) asylum claim abroad; (3) return from London; (4) probable lack of identity documents; (5) previous membership of the LTTE; (6) active nature of that membership; (7) previous arrest because of the LTTE involvement; (8) scarring on scalp, legs and elbows.

It may be added that while the applicant did not jump bail or escape from custody, one of the conditions of his release was to report regularly to the army camp. It seems that he never complied with that condition and, therefore, his situation is, at least to some extent, analogous to the two above-mentioned factors.

The position of the majority seems to be based on two assumptions: (1) that no record of the applicant’s previous arrest had been kept (paragraph 75); and (2) that the applicant’s scarring would not cause him to stand out or bring him to the attention of the authorities. As to the latter, we would like, however, to draw attention to Dr Smith’s report, which described the applicant’s scars as “visible and significant” (paragraph 78).

We agree that, with some luck, the applicant may avoid arrest and detailed investigation on his arrival at Colombo airport. We are not sure, however, that our understanding of human rights allows us to make someone’s fate contingent on being lucky in relation to the authorities rather than on a reliable assessment of the probability of the risk faced in the specific individual circumstances.

3. We are convinced that the cumulative assessment of the risk factors mentioned above suggests that the applicant may be exposed to a clear and genuine danger of ill-treatment if returned to Sri Lanka.

Of course, any assessment of the risks and consequences of deportation is speculative. That is why, a “lesser evil / lesser risk” approach may be proposed. If the applicant is not deported, even if there is no genuine risk of ill-treatment, the United Kingdom would be compelled to tolerate an illegal immigrant it does not want to keep on its soil. If the applicant is deported and if the risk of ill-treatment is genuine, he would at best be exposed to inhuman and degrading treatment by the Sri Lankan authorities.

In both situations an error of assessment would have negative consequences. The only difference is that if the former scenario materialises, the United Kingdom is likely to survive our mistake; whereas if the latter scenario comes true, the applicant may not survive. This difference leads us to the conclusion that we cannot afford any experimentation in this case.

 

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