Information Note on the Court’s case-law No. 110
July 2008
NA. v. the United Kingdom - 25904/07
Judgment 17.7.2008 [Section IV]
Article 3
Expulsion
Proposed deportation of Tamil asylum seeker to Sri Lanka: expulsion would violate Article 3
Facts: The applicant was a Sri Lankan national and an ethnic Tamil. He entered the United Kingdom clandestinely in 1999 and claimed asylum on the grounds that he feared ill-treatment in Sri Lanka by the Sri Lankan army and the Tamil Tigers. He explained that he had been arrested and detained by the army on six occasions between 1990 and 1997 on suspicion of involvement with the Tigers. On each occasion he had been released without charge. During one or possibly more of these periods of detention he was ill‑treated and his legs had scars from being beaten with batons. He had been photographed and his fingerprints had been taken. His father had signed certain papers in order to secure his release. He feared the Tigers because his father had done some work for the army. They had also tried to recruit him on two occasions. His claim was refused by the Home Secretary and his appeal against that decision was dismissed. He was issued with removal directions in 2006 and the Home Secretary refused to consider his further representations as amounting to a new asylum application, noting that the general situation in Sri Lanka did not indicate any personal risk of ill-treatment and there was no evidence that he would be personally affected upon his return. After successive applications by the applicant for judicial review of the decision to return him to Sri Lanka failed, new removal directions were issued in 2007 but not proceeded upon in view of a Rule 39 indication by the European Court.
On a more general level, the Court noted in 2007 an increase in the number of requests it was receiving for interim measures from Tamils being returned to Sri Lanka from the United Kingdom and other Contracting States. In correspondence with the United Kingdom Government about the difficulties posed by the processing of numerous Rule 39 requests it indicated that the Court had concluded that pending the adoption of a lead judgment in one or more of the applications, Rule 39 should continue to be applied in any case brought by a Tamil seeking to prevent his removal. Since the end of October 2007, the Court has applied Rule 39 in respect of 342 Tamils due to be returned from the United Kingdom.
Law: The fact that there had been a deterioration in the security situation in Sri Lanka and a corresponding increase in human-rights violations did not create a general risk to all Tamils returning there. The assessment of the risk could only be done on an individual basis. It was in principle legitimate to assess the individual risk to returnees on the basis of the list of “risk factors” which the United Kingdom authorities, with the benefit of direct access to objective information and expert evidence, had drawn up, although it had to be borne in mind that a number of individual factors which did not constitute a real risk when considered separately might do so when taken cumulatively and considered in a situation of general violence and heightened security.
The information before the Court pointed to the systematic torture and ill-treatment by the Sri Lankan authorities of Tamils who would be of interest to them in their efforts to combat the Tigers and the Sri Lankan authorities had the technological means and procedures in place to identify at Colombo airport failed asylum seekers and those who were wanted by the authorities.
As to the alleged risk from the Tamil Tigers, the Court accepted that any risk in Colombo from Tamil Tigers would be only to Tamils with a high profile as opposition activists, or those seen as renegades or traitors, so that the applicant would not be at real risk of ill-treatment from that quarter if returned to Colombo. In assessing his position in relation to the Sri Lankan authorities, the Court examined the strength of the applicant’s claim to be at real risk as a result of an accumulation of the risk factors in the light of developments since the last factual assessment by the domestic authorities, with due regard to the increase in general violence and heightened security. Relevant factors in his case were the fact that his father had signed a document to secure his release which logically would have been retained by the Sri Lankan authorities, the presence of scarring, which greatly increased the cumulative risk of ill‑treatment, and the applicant’s age, gender and origin, his previous record as a suspected or actual Tiger member, his return from London and the fact that he had made an asylum claim abroad, all of which contributed to the risk of identification, questioning, search and detention at the airport and, to a lesser extent, in Colombo. The fact that it had been over ten years since the applicant had been last detained by the Sri Lankan authorities was not seen as conclusive as their interest in particular categories of returnees was likely to change over time in response to domestic developments and could increase as well as decrease.
Since those considered by the authorities to be of interest in their efforts to combat the Tigers were systematically exposed to torture and ill-treatment, there was a real risk that the authorities at Colombo airport would be able to access the records relating to the applicant’s detention. If they did so, when taken cumulatively with the other risk factors identified by the applicant, it was likely that he would be detained and strip-searched. This in turn would lead to the discovery of his scars. There were thus substantial grounds for finding that the applicant would be of interest to the Sri Lankan authorities in their efforts to combat the Tigers.
Conclusion: expulsion would constitute a violation (unanimously).
Article 41 – no claim made in respect of pecuniary or non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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