It was then decided that the complainant would be granted anonymity (Rule 47. § 3 of the Rules of Court). The facts of the case, as presented by the parties, can be summarized as follows. Accordingly, the Judge accepted that the applicant had been a member of the LTTE and that he had been detained and ill-treated by the military in 1996.
UKAIT 00049 ("TK"), the Tribunal held that the risk factors identified in LP and AN and SS (both cited above) were still relevant, but that further country guidance was needed to take into account the recent major changes in the country situation in Sri Lanka. 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. It was also reported that most, if not all, of the LTTE's leaders had been killed.
Despite the cessation of hostilities, the current protection and humanitarian environment in Sri Lanka remains extremely challenging. The government-led military operations in northern Sri Lanka, which ended in May 2009, displaced around 280,000 people, most of whom fled their homes in the last few months of the fighting. The source also noted that the experts' role was to examine "the modalities, applicable international standards and comparative experience with regard to accountability processes, taking into account the nature and extent of any alleged violations in Sri Lanka."
The treatment of returned failed asylum seekers at Colombo airport
These include: ensuring that the 17th amendment to the constitution, which requires appointments to public office to 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 political and human rights covenants; reforming the criminal code to allow suspects immediate access to a lawyer upon arrest; and allow journalists to carry out their professional duties without harassment. The office of the State Intelligence Service (SIS) is in the immigration arrival hall and an officer from SIS usually patrols the arrival area during each inbound flight. A CID officer must then manually record the arrival of the person in a log book kept in their office. Often persons indicated in the DIE log as having been handed over to CID are never actually recorded as received in the CID log.
The same letter also noted that the CID offices at the airport contained two computers which were not linked to any national database. If a Sri Lankan national were to arrive at Colombo Airport after being removed or deported from the UK, 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 will have the document signed by the immigration officer on arrival and handed over to him/her.
They also have the document signed by the immigration officer on arrival and returned to them. In a letter dated 22 January 2009, the BHC reported that an official had spent several hours observing the return of unsuccessful asylum seekers from the United Kingdom, including those in possession of emergency travel documents issued by the Sri Lankan High Commission in London. In the official's view, the fact that some returnees had been issued emergency travel documents by the Sri Lankan High Commission in London did not appear to make any difference to their treatment on arrival.
The report of fact-finding visit to Colombo on 23 to 29 August 2009, carried out jointly by the Foreign and Commonwealth Office Migration Directorate and the UK Border Agency's Country of Origin Information Service ("the report of fact-finding visit, August 2009"), has been concluded . that all forced returns (of whatever ethnicity) were referred to the CID at the airport for nationality and criminal records. The main purpose of these interviews is to establish whether the returnee has a criminal record, whether they are wanted or suspected of committing any criminal offenses by the police. The main CID offices at Colombo Airport, housed on the ground floor next to the DIE Reception Control, are currently undergoing a complete refurbishment funded by the Australian Government.
At least it seems that the security forces only do this when there is one more. It was also reported that special teams of the State Intelligence Unit and police had been deployed at the airport since July 2009 to monitor the movement of Tamils trying to go abroad.
The treatment of Tamils in Colombo
The presence of any of the risk factors defined above would also attract greater police attention.
The treatment of Tamils in general
The presence of any of the risk factors listed above would also attract more police attention. suitability 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 preparation of these guidelines particularly complex.” In summary, UNHCR's recommendations were as follows: All asylum applications from Sri Lankan asylum seekers should be assessed on their individual merits following fair and efficient refugee status determination procedures and up-to-date and relevant country of origin information.
UNHCR considered that, given the particular circumstances of the case, certain individuals with profiles similar to those described in the Guidelines require particularly careful consideration of the potential risk. These risk profiles, although not necessarily exhaustive, are listed below: i) persons suspected of 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. Given the treatment of the Tamils, the authorities would wonder why any Tamil would want to return, and a significant exodus from the north is expected.
The authorities might conclude that given their second-class status, the only reason to return would be to support the LTTE or whatever takes its place. The applicant was detained for 5 days and the severity of his mistreatment indicates that he adversely affected the authorities who detained him. As such, his file will most likely have been included in the central database, especially since he was released under reporting conditions that he subsequently violated.
He has visible wounds that could cause adverse interest at the airport and, furthermore, the fact that he left Sri Lanka using false documentation will further contribute to the risk and vulnerability at the airport. As such, it is highly likely that the applicant will be detained upon arrival and this will place him at significant risk of ill-treatment, torture and even sexual abuse.”
THE LAW
Admissibility
Merits
- RULE 39 OF THE RULES OF COURT
The Government accepted for the purposes of the case 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. The Government submitted that it was clear from the evidence before the Court that the applicant did not fall into the second category. The government further argued that the applicant did not fall under the risk category "bail jumping" or.
With regard to the applicant's scars, the government argued that the Court could not go behind the Adjudicator's findings that they were not readily apparent and would not bring the applicant to the attention of the authorities. When assessing whether the applicant has demonstrated that he runs a real risk of ill-treatment in Sri Lanka, the court notes in advance that the government proposes to remove him to Colombo. The Court notes that in the context of this case the government has accepted that the applicant was detained and ill-treated by the army in 1996, as he alleged.
The Secretary of State doubted that the applicant was involved with the LTTE as he claimed. The Court therefore does not consider that the applicant's case was properly assessed in the light of the relevant case that existed at the time. It is unfortunate, in the court's view, that the Secretary of State did not consider the findings of the Judge who had the opportunity to see the applicant testify in person.
Regarding the applicant's previous record, the Court notes that the arbitrator accepted that the applicant was a member of the LTTE and that the Government did not challenge this claim. The court therefore takes as its starting point the fact that the applicant was an active member of the LTTE and that he was arrested during the arrest. He also states that no record was kept of the applicant's detention and indeed the Court finds that there is no evidence in this case that the applicant's detention was recorded.
The court notes that the applicant has some scars on his scalp, legs and elbows. The Court considers that the key question is whether the applicant is likely to be noticed by the authorities when passing through the airport (see NA., cited above, paragraph 134). Accordingly, the applicant's removal to Sri Lanka would not result in a violation of Article 3 of the Convention.
ruled by five votes to two that there would be no violation of Article 3 of the Convention in the event of the appellant's removal to Sri Lanka;
JOINT DISSENTING OPINION OF JUDGES GARLICKI AND KALAYDJIEVA
