FOURTH SECTION
DECISION
Application no. 61533/10
H.A.L.
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 22 May 2012 as a Chamber composed of:
Lech Garlicki, President,
David Thór Björgvinsson,
Nicolas Bratza,
Päivi Hirvelä,
George Nicolaou,
Ledi Bianku,
Vincent A. De Gaetano, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 22 October 2010,
Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court,
Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr H.A.L., is a Sri Lankan national who was born in 1980 and lives in West Drayton. He was represented before the Court by Ravi Solicitors, Harrow, assisted by Mr N. Paramjorthy, counsel.
2. The United Kingdom Government (“the Government”) were represented by their Agent, Mr D. Walton of the Foreign and Commonwealth Office
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Introduction
4. During Sri Lanka’s recent civil war, the main fighting occurred between Government forces and the Liberation Tigers of Tamil Eelam (the LTTE or “Tamil Tigers”). In 2004, a paramilitary group broke away from the LTTE; this became known as the “Karuna group” from the name of its leader V. Muralitharan (alias “Colonel Karuna”). The political wing of this group was called the Tamil Eelam Peoples Liberation Tigers (TamilEela Makkal Viduthalai Pulikal: TVMP). Between late 2006 and early 2007 the Karuna group fought with the Sri Lankan armed forces against the LTTE in the Eastern Province of Sri Lanka. In October 2007 Karuna was expelled from the TMVP after a dispute between him and his former deputy, Sivanesathurai Chandrakanthan (also known as Pillayan). Karuna was later detained in the United Kingdom for immigration offences; during this time the TMVP was registered as a political party and, after elections in May 2008, Pillayan became chief minister of the Eastern Province (see United Kingdom Border Agency Country of Origin Information Service reports on Sri Lanka of 18 February 2010 at annex C, p. 213 and 7 March 2012 at annex B, p. 229).
2. The applicant’s asylum claim
5. The applicant arrived in the United Kingdom on 19 May 2008. He initially claimed to be visiting his brother but, when pressed, did not know his brother’s address or phone number. When questioned further, he claimed asylum. He claimed to have formed a political party called the People’s Democratic Front and to have stood as an independent candidate in the 2008 provincial elections in Akarrapaittu, Ampara District, in eastern Sri Lanka. In early 2008, he had announced that he would publish a book giving details of human rights abuses of Muslims in the district. He claimed that, on 30 March 2008, he was beaten up by five unidentified men who warned him not to publish the book. He was later given a similar warning by telephone by the LTTE. On 20 April 2008, at a branch meeting of the party, the applicant was attacked by an armed group who warned him to withdraw from the election or he would be killed. He attempted to report this incident to the police. On 30 April 2008, another group of armed men visited the party’s office and made similar threats. The applicant believed these men belonged to the Pillayan group. A further attack took place on 5 May 2008 when two candidates from the applicant’s party were attacked whilst putting up posters. That day the applicant travelled to Colombo and, the following day, he attended an anti-TMVP demonstration at which he was interviewed by the BBC Tamil Network. He telephoned his home town and was told that, as a result of the interview, the Government and the Pillayan group were looking for him. He was warned not to return home. He nonetheless did so on 6 May 2008, and continued his political activities until election day, 10 May 2008. His home was visited by armed men. Although he was not there at the time, his parents were given another warning. The applicant travelled to Irrakamam (also in Ampara District) and then Colombo. He fled to the United Kingdom via Kuwait using his Sri Lankan passport.
6. His asylum claim was refused by the Secretary of State on 5 June 2008. It was found not to be credible that, in his asylum interview, the applicant had failed to remember the full name of the man with whom he had founded the People’s Democratic Front or the name of two other party candidates. He had failed to show whether the armed groups who had threatened him were affiliated to a political party and it was speculative to consider that they were Government forces. There were inconsistencies between the applicant’s account and the transcript of the interview with the BBC. For instance, he had claimed to have spoken about removing arms from the Pillayan group and made comments about fair elections, neither of which were in the transcript. This indicated he had fabricated his account that he was of interest to the Pillayan group and the Government. He had also failed to mention in the transcript who had assaulted the party’s candidates and thus there was no evidence that he had accused the Pillayan group or the Government of being responsible for the attacks. He had also referred to himself in the broadcast as “a candidate of the Independent Group of Fifteen” yet stated in his asylum interview that he belonged to the People’s Democratic Front. It was also incredible that he would have returned home after the broadcast and, despite his fear of the Government, he had left Sri Lanka on his own passport without any difficulties. He had, by his own admission, never been harmed by the Government or the Pillayan group and had no further problems with the LTTE despite having published his book. Finally, the Secretary of State considered that the documents produced by the applicant in support of his claim, including an election card and poster, and a recording and transcript of the BBC interview, did not assist him in any material way. The recording had not been independently corroborated and the transcript was incomplete.
7. The applicant appealed against the Secretary of State’s refusal. His appeal was dismissed by the then Asylum and Immigration Tribunal on 25 July 2008. It was accepted he had published the book as he had claimed and that this would have brought him to the attention of the LTTE and the TMVP. It was accepted that elections took place in eastern Sri Lanka on 10 May 2008 and they had been marred by violence by paramilitary groups, including the TMVP. It was surprising that the applicant had been unable to recall basic information as to his fellow candidates but it was accepted that the applicant had stood in those elections and the claims of harassment and attacks of the applicant and his party were consistent with the background evidence. The applicant’s assumption that the armed men were part of the Pillayan group was entirely reasonable in the circumstances and it was credible that the TMVP would have shown an interest in a rival party. The Tribunal was also satisfied that the applicant had given an interview at an anti-TMVP demonstration in Colombo but it was not clear what he had said. It was further accepted that the applicant had been forced to flee as a result of the threats which had been made and the interview he had given. He would therefore be at risk in his home area. However, having considered this Court’s judgment in NA. v. the United Kingdom, no. 25904/07, 17 July 2008, Tribunal concluded that the applicant would be safe in Colombo where the TMVP were not active. There was insufficient evidence that he would be wanted by the Sri Lankan authorities rather than the TMVP; there was little evidence of harassment of opposition groups by the Government as shown by the fact that the demonstration at which the interview had been given had passed off relatively peacefully. The applicant was not on a wanted list nor was there any outstanding arrest warrant. He would be questioned at Colombo airport on return but not detained or ill-treated.
8. An application for reconsideration of the determination was refused by a senior immigration judge on 22 August 2008, who found that, on the evidence before it, the Tribunal had been entitled to find as it did.
3. The asylum claim of the applicant’s brother
9. The applicant’s brother arrived in the United Kingdom on 28 August 2007 with a student visa which was valid until 30 September 2010. He claimed asylum in the United Kingdom in early 2010 on the basis that he was suspected of assisting the LTTE by providing a vehicle to transport weapons. He stated that he had previously earned a living in Sri Lanka by hiring two vehicles but had decided to study in the United Kingdom and had handed his vehicles and business interests to a family friend. He had no problems prior to leaving Sri Lanka but, in January 2010, his parents had telephoned to say that the police had come looking for him. The police had shown his parents an arrest warrant and told them that the family friend had been arrested while carrying weapons. The Secretary of State refused the asylum claim inter alia because the brother had initially said that the family friend had been arrested because he had been carrying election propaganda but later said that it was because he had been carrying weapons.
10. The brother appealed to the First-tier Tribunal (Immigration and Asylum Chamber) (formerly the Asylum and Immigration Tribunal) and produced a series of documents in support of his claim, including a letter from a Sri Lankan lawyer to the applicant’s father and a copy of the arrest warrant with an English translation. Although the Secretary of State did not accept the authenticity of the documents (arguing that forgeries were easily obtainable in Sri Lanka and that it was difficult to obtain a copy of one’s own arrest warrant), attempts to verify their authenticity had not been successful.
11. On 9 August 2010, the Tribunal allowed the brother’s appeal. Although it had not been explained how the arrest warrant came into the possession of the family, the Secretary of State had not undertaken checks, had not appeared before the Tribunal and had not stated that the documents were forgeries. The arrest warrant was corroborated by the rest of the documents submitted by the brother, it was accepted it had been issued and further accepted that the police had visited the family home. Given the significance of an arrest warrant as a risk factor, the Tribunal concluded that there would be a real risk of ill-treatment on return.
4. The applicant’s judicial review applications
12. The applicant made further representations to the Secretary of State on 2 December 2008 and submitted further objective information in support of his asylum claim, which showed that opponents of the TMVP were at risk and that a number of Muslim Tamils had been murdered. It appears that these representations were not received by the Secretary of State at the time.
13. Removal directions were set for the applicant’s removal to Sri Lanka on 10 September 2010. On 9 September 2010, the applicant lodged an emergency application for judicial review. It appears that at this point the Secretary of State became aware of the representations. The removal directions were then cancelled.
14. The Secretary of State rejected the representations in a letter dated 22 September 2010. The Secretary of State found that, even if he were at risk from members of the TVMP, the applicant could safely relocate to Columbo, but, in any event, the latest evidence showed that even a localised risk had been eradicated. A consideration of the risk factors set out in LP, and endorsed in NA, cited above, and TK (see paragraphs 26 and 27 below), showed that there was no real risk of ill-treatment at the hands of the Sri Lankan authorities.
15. The judicial review application was refused by the High Court on 1 October 2010. It was found that there was nothing in the judicial application to impugn the Secretary of State’s initial decision to refuse asylum or the decision of the Asylum and Immigration Tribunal.
16. When removal directions were then set for the applicant’s removal to Sri Lanka on 18 October 2010, the applicant made a second emergency application for judicial review to the High Court. He relied on new evidence that he was of continuing interest to the Sri Lankan authorities, including a witness statement from his mother and a letter from a Sri Lankan lawyer which appended English translations of an arrest warrant for the applicant and two court summonses containing the names of the applicant and two other men.
17. Those documents have been provided to the Court.
The letter from the Sri Lankan lawyer, addressed to the applicant’s former legal representatives and dated 15 October 2010, thanked the legal representatives for their instructions of 14 October 2010. The Sri Lankan lawyer stated that he contacted the Akkaraipattu Magistrates’ Court Registrar, who advised him that an arrest warrant was issued in respect of the applicant on 6 July 2010. The letter gave the case reference number for the arrest warrant, stated that it was “live” and valid until executed. The letter states that service of the warrant was attempted on 3 October 2010.
The first court summons from the Akkaraipattu Magistrates’ Court is dated 29 April 2010. It gives the names of the applicant and two other men, and the particulars of their offence as having connection with terrorists and aiding and abetting terrorists. The summons requires the applicant to appear before the court on 20 May 2010. The second court summons is dated 25 May 2010 and orders his appearance on 6 July 2010.
The arrest warrant is dated 6 July 2010 and authorises the arrest of the applicant for the purposes of bringing him before the same court, the Akkaraipattu Magistrates’ Court.
On both court summonses, the name of one of the two other men is similar to the name of the applicant’s brother, though the parties in their submissions to the Court (see further below) have confirmed that it is a different person. The parties have also confirmed that the summonses and warrant are different documents from the arrest warrant considered by the First-tier Tribunal (Immigration and Asylum Chamber) in the appeal of the applicant’s brother.
In her statement, the applicant’s mother said that two police officers visited the family home on 13 September 2010 and told her that the applicant was being sought for suspicious activities on behalf of the LTTE and against the TMVP. She was shown a document which stated that the police had an arrest warrant to this effect. The police then said that they would be back in two weeks and warned her that her son would have to face terrible consequences if he failed to surrender.
18. On 16 October 2010, the Secretary of State wrote to the applicant stating that the grounds which he relied on in the second judicial review application could reasonably have been raised in the previous judicial review application and she was not prepared to defer his removal unless a High Court injunction was obtained.
19. The second application for judicial review was refused on 18 October 2010. The High Court found:
“The asylum claim before the Immigration Judge in mid 2008, and upheld, was a fear of persecution from the TMVP. Then as late as 9 September 2010 the judicial review was based on what was said to be a fresh claim ‘that as an opponent of the TMVP he would at risk [sic]’... Now it is said that his fear is from the authorities, because there is an arrest warrant out for him and a statement from his mother that the police have been looking for him. Having given the matter close attention I am afraid I regard this simply as a last ditch attempt to prevent removal. It has no prospect of success.”
20. The same day, the Court of Appeal refused permission to appeal, a single judge of that court stating that he was not persuaded that there was a realistic prospect of a successful appeal against the refusal of interim relief. The applicant has since informed this Court that the Tribunal determination in respect of the applicant’s brother was not placed before the High Court or Court of Appeal.
21. The Government proceeded with the applicant’s removal from Heathrow airport on 18 October 2010 but he was removed from the aircraft when he claimed to be experiencing chest pains. Removal directions were reset for 23 October 2010.
22. On 22 October 2010 the applicant lodged an application with this Court and the same day the President of the Chamber to which the application was allocated decided to apply Rule 39 of the Rules of Court and to indicate to the Government of the United Kingdom that the applicant should not be removed to Sri Lanka until 5 November 2010 to enable further consideration of the application.
23. On 27 October 2010, the applicant was requested to submit further information to the Court, including a copy of the Tribunal determination in respect of his brother. This was sent by post the same day.
24. On 4 November 2010, the Agent of the Government of the United Kingdom informed the Court that removal directions had been set for 10 November 2010. He further informed the Court that, while the applicant’s brother had been granted asylum, this had no bearing on the consideration of the applicant’s case, which had been carefully considered on its own merits.
25. On 10 November 2010 the President of the Chamber decided that Rule 39 should be applied until further notice, that notice of the application should be given to the respondent Government, and that they should be invited to submit written observations on the admissibility and merits of the case.
B. Relevant domestic law and practice
1. Country guidance determinations in respect of Tamils returning to Sri Lanka
26. The Asylum and Immigration Tribunal’s determination in LP (LTTE area – Tamils – Colombo – risk?) Sri Lanka CG [2007] UKAIT 00076 was considered by this Court in NA., cited above, §§ 30–46. The headnote to the determination provided:
“(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...”
27. LP was reconsidered by the Tribunal in the light of NA. in TK (Tamils – LP updated) Sri Lanka CG [2009] UKAIT 00049. The Tribunal’s conclusions were summarised in the headnote to the determination which, where relevant provides:
“a) 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.
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 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.
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.”
2. Fresh asylum and human rights claims
28. Section 1(4) and 3(2) of the Immigration Act 1971 provide for the making of Immigration Rules by the Secretary of State. Paragraph 353 of the Immigration Rules provides as follows:
“When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:
(i) had not already been considered; and
(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.”
29. As regards the scrutiny of fresh asylum claims and the power of the courts to review such scrutiny, the Court of Appeal in WM (DRC) v. Secretary of State for the Home Department [2006] EWCA Civ 1495 (paragraphs 10-11) has held:
“Accordingly, a court when reviewing a decision of the Secretary of State as to whether a fresh claim exists must address the following matters. First, has the Secretary of State asked himself the correct question? The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return ... The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting-point for that enquiry; but it is only a starting point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind. Second, in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts, has the Secretary of State satisfied the requirement of anxious scrutiny? If the court cannot be satisfied that the answer to both of those questions is in the affirmative it will have to grant an application for review of the Secretary of State’s decision.”
Thus, an applicant making fresh representations must establish that they have a realistic prospect of success to establish a “fresh claim” which, even if then refused by the Secretary of State, will nonetheless generate a fresh right of appeal to be considered on the merits.
C. Relevant background information: Country of Origin Information Service Report
30. The United Kingdom Border Agency Country of Origin Information Service report on Sri Lanka of 11 November 2010 includes (at paragraph 12.19) the following excerpt from a letter from the British High Commission in Sri Lanka dated 14 September 2010:
“Formally it is difficult for the accused to be able to obtain a copy of his/her own arrest warrant. When an arrest warrant is issued, a copy is kept on the legal file and the original is handed to the police. An accused cannot apply for copies of the arrest warrant to the relevant court. However, in practice forged documents are easily obtainable throughout Sri Lanka. Additionally given ongoing and well documented concerns over corruption in the police it would probably not prove difficult to obtain a copy of an arrest warrant, although it would probably require prior contacts within the police service.”
COMPLAINT
31. The applicant complained that it would expose him to a real risk of being subjected to treatment in breach of Article 3 of the Convention and/or a violation of Article 2 if he were to be returned to Sri Lanka.
THE LAW
32. Articles 2 and 3 provide, so far as relevant, as follows:
“Article 2
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.
...
Article 3
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
1. The parties’ submissions
a. The Government’s initial submissions
33. The Government submitted that, on the basis of the risk factors set out in LP and NA, both cited above, the applicant would not be of sufficient interest to the Sri Lankan authorities to be detained and interrogated on return. First, prior to his second judicial review application he had never made any suggestion that he had a previous record as a suspected or actual LTTE member, only that he had been an independent candidate in provincial elections. Indeed, his book had incurred the hostility of the LTTE. Second, he had no previous criminal record, had not jumped bail or escaped from custody, had not signed a confession or been asked to become an informer. Third, he had no scarring. Fourth, while he would be returned from London, he was not of a high profile. Fifth, his departure from Sri Lanka had been legal and he would be returned on his own, still valid passport.
34. The applicant’s mother’s witness statement did not change this assessment. It was not credible that the police would look for the applicant two years and four months after the elections, when the applicant had left the country, and when his account of his ill-treatment was so closely connected with the elections.
35. Although an outstanding arrest warrant was a significant factor, it was still necessary to establish its credibility and whether it was reasonably likely to exist. The court summonses and the arrest warrant that the applicant had produced did not provide any details of the alleged reason for the authorities’ purported interest in him. The Government also relied on the British High Commission’s letter of 14 September 2010 to the effect that while it was difficult for an accused to obtain a copy of his or her arrest warrant, forged documents were easily obtainable. This, and the fact that the summonses and warrant had been produced shortly before the applicant’s removal and two months after the applicant’s brother’s appeal had been allowed on consideration of an arrest warrant, meant that there were not substantial grounds for believing that the documents were genuine. A further concern as to their authenticity was the fact that the documents had been obtained by a Sri Lankan lawyer. They had been translated one day after they had been issued, and one day before the lawyer had even been instructed.
36. The Government further submitted that there was nothing in the applicant’s brother’s circumstances which would mean the applicant himself would be at real risk of ill-treatment on return. The basis of the brother’s claim – that vehicles he had entrusted to a friend had been used for transporting election materials or weapons – had no relevance to the applicant. The appeal in his brother’s case had been allowed when the Secretary of State had not appeared at the hearing and had not disputed the authenticity of the arrest warrant. It could not be assumed that, had the authenticity of the document been challenged, the Tribunal would have reached the same conclusion. The Tribunal in the brother’s case had placed some weight on the fact that information had been obtained which was consistent with the brother’s evidence, and there were other documents to support the veracity of the arrest warrant and summons. There were no other documents in the applicant’s own case.
b. The applicant’s submissions
37. The applicant submitted that the Government had failed to take account of the fact that he and his brother had been found to be credible witnesses by the Tribunals which heard their cases. This was important in determining whether the applicant’s new evidence, in the form of the arrest warrant and court summons, was capable of belief. The warrant and summons had been supported by the letter of the Sri Lankan attorney-at-law. Though the other two persons in the summons were not known to the applicant, the applicant considered that the Sri Lankan authorities’ adverse interest in him could stem from his brother’s encounters with the authorities. It was not for the Government now to attempt to challenge the authenticity of the documents the applicant’s brother had submitted to the Tribunal when they had not done so at the Tribunal hearing. The Tribunal had rationally reached the conclusion that the documents were authentic, and the Government had not appealed against that finding.
38. Although the Government had disputed the authenticity of the applicant’s arrest warrant (on the grounds that these were difficult to obtain and corruption was rife), the applicant had not merely submitted an arrest warrant but also the court summons and the letter from the Sri Lankan attorney confirming his enquiries with the court registrar. This was important corroborative evidence.
39. In considering the risk factors endorsed in NA, the applicant submitted that, in addition to the existence of the arrest warrant and court summons, the following additional factors applied to him:
- Tamil ethnicity;
- a previous record as a suspected LTTE member or supporter;
- a lack of an identity card;
- return from London;
- illegal departure from Sri Lanka;
- having made an asylum claim abroad; and
- having relatives perceived to be in the LTTE.
When taken together, these factors demonstrated that there was a real risk that, at Columbo airport or in the city itself, the applicant would come to the attention of the authorities. There was, therefore a real risk of ill‑treatment contrary to Article 3.
c. The Government’s final submissions
40. In their final observations, the Government maintained there were not substantial grounds for believing that the documents submitted by the applicant were genuine. They were not bound to accept the authenticity of those documents simply because, in the case of the applicant’s brother, the authenticity of different documents had gone unchallenged.
41. The Government further relied on this Court’s endorsement of the country guidance case TK in E.G. v. the United Kingdom, no. 41178/08, § 69, 31 May 2011, and the Court’s finding that the likelihood of a Tamil returning to Colombo being the subject of adverse interest on the part of the Sri Lankan authorities had, if anything, declined. The Government maintained that, as stated in their initial observations, the risk factors relied on by the applicant were not sufficient to establish a real risk of ill‑treatment. They reiterated in particular that the applicant would be able to return to Sri Lanka on his own passport. The remainder of the risk factors were premised on acceptance of the arrest warrant as genuine, which, for the reasons they had set out, the Government did not accept.
2. The Court’s assessment
42. The Court begins by observing that, while the applicant initially claimed to be at risk of ill-treatment at the hands of the TMVP, he has not pursued that claim before the Court. Consequently, the only issue in the case is whether the applicant is at real risk of ill-treatment by the Sri Lankan authorities, either at Columbo airport or Columbo city. That issue falls to be determined in accordance with the risk factors identified by the then Asylum and Immigration Tribunal in LP and endorsed by this Court in NA, cited above.
43. The applicant has submitted that, in addition to the existence of an arrest warrant and court summons, the following risk factors apply to him:
- Tamil ethnicity;
- a previous record as a suspected LTTE member or supporter;
- a lack of an identity card;
- return from London;
- illegal departure from Sri Lanka;
- having made an asylum claim abroad; and
- having relatives perceived to be in the LTTE; and
44. It is not in dispute that the applicant is of Tamil ethnicity, that he will be returned from London and that he has made an asylum claim abroad. However, neither the domestic courts nor this Court have found that these risk factors will, in themselves, create a real risk of ill-treatment; they are, instead to be regarded as “background” factors (see E.G., cited above, § 73). So too is the applicant’s lack of an identity card, a factor which would have limited significance in the applicant’s case, especially when, as the Government have pointed out, the applicant would be returned to Sri Lanka on the basis of his own, still valid passport and not, as is more usually the case, emergency travel documents. The Court also observes that, although the applicant had relied on the fact of having a previous record as a suspected LTTE member or supporter, there is no factual basis for this claim; on the contrary, his activities in Sri Lanka would mean that, at most, he would be regarded as an opponent of the TMVP (itself a breakaway group from the LTTE) and not as a LTTE supporter.
45. If there is any risk of ill-treatment in the applicant’s case it must be found in the possibility that first, his brother has been perceived by the Sri Lankan authorities to be an LTTE supporter and second, that an arrest warrant and court summonses have been issued for the applicant.
46. An unusual feature of this case is that the applicant’s brother has been granted asylum in the United Kingdom. This was because the Asylum and Immigration Tribunal accepted the authenticity of an arrest warrant which indicated that the applicant’s brother was wanted by the Sri Lankan police in connection with the use of his vehicle by a third party to transport LTTE weapons. The parties differ as to what weight the Court should attach to this fact: the applicant submits it is of some significance that his brother was found to be credible in his claim to be wanted by the Sri Lankan as a possible LTTE supporter; the Government maintain the Tribunal only found in the brother’s favour because the Secretary of State had failed to appear at the Tribunal hearing and challenge the authenticity of the arrest warrant. The Court considers it unnecessary to determine this dispute. The fact is that, even if the applicant’s brother did inadvertently aid the LTTE, it is unlikely that such a low level of support, so many years ago would excite the interest of the Sri Lankan in the applicant, particularly when he had already left Sri Lanka by the time of the events in question.
47. The remaining factor is the arrest warrant. The Court has found that an arrest warrant will constitute a significant risk factor; the issue in any such case is to establish the credibility of the warrant and decide whether it is reasonably likely to exist in respect of the applicant in the particular case (see NA, cited above, § 143). The Court accepts that the court summonses, the letter from the Sri Lankan lawyer and a witness statement from the applicant’s mother provide a measure of corroboration as to the authenticity of the warrant. The fact is, however, that these documents were before the High Court when it considered the applicant’s second application for judicial review. The applicant has not provided the Court with any reasons to alter the conclusion of the High Court, which found that the warrant was simply a last ditch attempt to prevent removal (see paragraph 19 above). Although the applicant has submitted that the Sri Lankan authorities may have become interested in him because of the activities of his brother, his mother’s witness statement states that the police had told her that the applicant was being sought for suspicious activities on behalf of the LTTE and against the TMVP. No explanation has been provided as to why, years after his departure, the police would suddenly acquire such an interest in the applicant. Finally, it has become clear in the course of the proceedings before the Court that, although the name of one of the other men named in the court summonses is similar to that of the applicant’s brother, it is a different person. The applicant has not sought to explain what, if any, connection exists between him and this person, or the third person named in the summons or what interest the police might have in them.
48. For these reasons, the Court concludes that the applicant has not adduced evidence capable of proving that there are substantial grounds for believing that, if returned to Sri Lanka, he would be exposed to a real risk of being subjected to treatment contrary to Article 3. Accordingly, it is appropriate to lift the interim measure indicated under Rule 39 of the Rules of Court and to reject the application as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court by a majority
Declares the application inadmissible.
Lawrence EarlyLech Garlicki
RegistrarPresident
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