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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
- 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.
- 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
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
1. Introduction
- 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
- 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.
- 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.
- 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.
- 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
- 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.
- 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.
- 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
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.”
- 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.
- 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.
- 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.
- 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.
- 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.
- 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
- 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...”
- 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, App.no. 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
- 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.”
- 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
- 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
- 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
- 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
- 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.
- 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.
- 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.
- 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
- 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.
- 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.
- 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
- 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.
- 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
- 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.
- 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
- 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.
- 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.
- 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.
-
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.
- 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 Early Lech Garlicki
Registrar President
