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Home > Struggle for Tamil Eelam > Tamil Refugees & Asylum Seekers > Denmark continues to deliberately underestimate serious consequences of deporting Tamil asylum seekers back to Sri Lanka, says Amnesty
Denmark continues to deliberately
serious consequences of deporting Tamil asylum seekers
back to Sri Lanka - the case of Sutha
says John H. Nardine, Frivillig
Amnesty International-Aarhus, Denmark
18 January 2001
|"...There is a Tamil seeking asylum in Denmark, a young woman named Sutha, with whom I have also been working to protect from deportation... Sutha was wanted by the Sri Lankan security forces for hiding weapons for the LTTE before she escaped the country and was smuggled to Denmark. The fact the Sutha was never arrested or tortured is only due to the fact that she successfully managed to evade capture. Sutha's appeal for "convention" status asylum in Denmark has been rejected by both Danish Immigration Service and the Refugee Appeals Board. Her lawyer is currently seeking asylum on humanitarian grounds due to Suthas deteriorated condition. An earlier application by her brother for family reunification (her brother has asylum here) was refused during the time of Denmark's scandalous Tamil case. If humanitarian asylum is refused, the next strategy to protect Sutha would be to appeal her earlier family reunification refusal to the ombudsman. I am including her story and arguments supporting why she should have been granted "convention" asylum status and deserves yet to be given humanitarian asylum..." John H. Nardine, Frivillig, Amnesty International-Aarhus, Denmark, [email protected]|
Danish immigration authorities continue to deliberately underestimate the serious consequences that result from deporting Tamil asylum seekers back to Sri Lanka. A pattern once again emerges wherein authorities either distort the facts of applicants' cases or refute the legitimacy of their claim to asylum.
In the cases of Tamil individuals with which representatives of Amnesty International's Århus office have been actively involved, both the Danish Immigration Service (Udlændinge Styrelsen) and the Danish Refugee Board (Flygtningenævnet) have ignored irrefutable evidence of the personal threat to safety that awaits these Tamils upon deportation. Danish officials seem to take no notice of the constant human rights violations committed against members of the Tamil minority by agents of Sri Lankan security forces.
In 1997 for example, Amnesty International received information of 648 "disappearances" .The British Refugee Council's publication Sri Lanka Monitor reports that on August 18, 1998, Denmark in fact signed a repatriation agreement with Sri Lanka:
"Despite increasing signs of tension in the capital, and warnings from human rights organisations, the Danish government has signed a repatriation pact with Sri Lanka. NGOs have highlighted the unsafe conditions in Colombo and other parts of the island for Tamils and the continuing violations of human rights."
And, whereas UNHRC officials had maintained that rejected refugees will be treated well upon refoulement, Amnesty International found widespread evidence of torture in Sri Lanka during an investigative tour to the country in August of 1997.
The Danish Immigration Service (DIS) interprets the UN's position on returning Tamils and Denmark's repatriation agreement with Sri Lanka as assurance that Tamils are guaranteed safe return to their homeland. But in at least one case that has already received national media coverage, that of a young Tamil named Siva, Danish authorities deported a victim of torture only to result that he was arrested by Sri Lankan security forces within minutes of leaving the airport in Colombo and tortured again. Siva escaped to Denmark a second time and was finally granted "de facto" refugee status.
The domestic and international legal bases for asylum
The definition given by the 1951 UN Convention on the Status of Refugees of what constitutes a "refugee" describes Tamils' fear accurately:
A refugee is one who "…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country…"
An individual who applies for asylum in Denmark
that meets the above cited criterion from the Convention may be
granted 7.1 status, so named for the paragraph in question
according to the Danish Aliens Act (Udlændingeloven ).(This
is also known as "convention status" or K status, referring to
the Danish word "konvention"):
§ 7.(1) Upon application, a residence permit will be issued to an alien if the alien falls within the provisions of the Convention relating to the Status of Refugees, 28 July 1951.
A second possibility exists allowing an asylum seeker to obtain residency in Denmark. This is called 7.2 status (also known as "De Facto" or simply "F" status). The corresponding paragraph of the Aliens Act reads:
§ 7.(2) Upon application, a residence permit will also be issued to an alien who does not fall within the provisions of the Convention relating to the Status of Refugees, 28 July 1951, but who, for reasons similar to those listed in the Convention or for other weighty reasons resulting in a well-founded fear of persecution or similar outrages, ought not to be required to return to his country of origin.
While one might think that receipt of "de facto" status is cause for celebration (it is of course a triumph over refoulement) in Siva's case, "de facto" status belittles the atrocities he has survived and disavows the misjudgment that authorities made in his case by deporting him in his first application for 7.1 status asylum.
If the DIS grants neither the 7.1 nor the 7.2 option for asylum it means that the refugee's application has been deemed manifestly unfounded. Such rejections are automatically referred to The Refugee Appeals Board. The applicant has the right to an appointed lawyer provided at public expense and to an interpreter during his or her appearance before the Board. It is the last opportunity the asylum applicant will have to explain their grounds for claiming refuge. The Board may overturn the decision of the DIS but if the two agencies are in agreement that the grounds for asylum are manifestly unfounded, the applicant will be asked to leave the country. Usually within 15 days of this final rejection the asylum seeker will receive a letter asking him or her to appear to police authorities to undersign a document stating they'll cooperate with their deportation. In cases where the individual was smuggled into Denmark, and thus no travel documentation exists, it will take time to obtain such legitimization for the return trip.
During this time one last effort can be made: application for asylum on humanitarian grounds. Application for asylum on humanitarian grounds must be made within 10 days of rejection from the Refugee Appeals Board and is made to the Ministry of the Interior (Indenrigsministeriet). The applicant's local police will usually already be in the process of arranging deportation while this application is pending. The paragraph pertaining to humanitarian asylum reads:
§ 9.(2)(ii)Upon application, a residence permit may be issued to other aliens, provided the alien, in cases not falling within section 7(1) and (2), is in such a position that essential considerations of a humanitarian nature conclusively make it appropriate.
Sutha (surname withheld)
This final appeal for humanitarian consideration is the last hope Sutha has in the asylum process. Sutha is a beautiful 24 year old woman who smiles radiantly with sparkling eyes when she shakes your hand. But after that brief contact with the outer world, Sutha retreats into withdrawn silence from which even speaking is clearly painful. Sutha stares off into space or puts her forehead to the table. She holds her head and has difficulty connecting with those around her even when the conversation is carried on in Tamil. Sutha has lost 10 kilos in the soon one year she has been seeking refuge in Denmark and is obviously fragile. Sleeping disorder, which includes constant nightmares of soldiers ransacking her home, compounds Sutha's eating disorder.
Sutha flees in a panic attack whenever she encounters uniformed personnel in the street here in Denmark. In one such episode she hyperventilated and fainted. Under evaluation with a psychiatrist having extensive experience with refugees, it was established that there are clear signs of depression and post traumatic stress disorder (PTSD).
Sutha first visited Amnesty International's Århus office after her application for asylum had been rejected on the 29th of September by the DIS. Her application was rejected because her case was judged to not fulfil the criteria for 7.1 asylum.
The Refugee Appeals Board then also rejected Sutha's case. In other words, Sutha could not convince either agency that she had a "…well-grounded fear of persecution because of race, religion, nationality, one's affiliation to a particular social group or one's political opinions." Sutha's lawyer is currently appealing to the Ministry of the Interior to allow Sutha to stay with her family in Denmark on humanitarian grounds. Sutha's weakened health and diminished capacity to cope with the stresses she will certainly face if returned to Sri Lanka are sufficient grounds for asylum on humanitarian grounds However, it is clear from Sutha's story that she rightly deserved protection as a 7.1 refugee.
In Sutha's Own Words
The following information about Sutha
Krishnapillai originates from either witnessing her psychological
evaluation or the interviews she underwent before the Police in
Århus, the DIS, and the Refugee Appeals Board. These
interviews are referenced in detail in the refusal of asylum she
has received from the Refugee Appeals Board.
Sutha was born 27th August 1976 in Point Pedro, Sri Lanka. She was smuggled into Denmark on 28th February 2000 and applied for asylum with the police in Århus the same day. Obviously, she had no passport or travel documents upon arrival.
Sutha's older brother, Puwanesvarajan, left Sri Lanka in 1991 and has permission to reside in Denmark. He had been very active in the Tamil Tigers although not a member. The bombing of their house during an air raid killed Sutha's parents in 1987 after which she lived with her grandmother and older brothers. Sutha saw her father's body at the scene, her mother died later at the hospital. She does not know for certain what has become of her younger brother, a fighting member of the Tamil Tigers (LTTE), but heard he was killed in 1998 during an attack upon a military base in Vetilaikkeni. Sutha is an ethnic Tamil and of Hindu faith.
Sutha's relationship to the LTTE is unclear. She stated in her application for asylum on the 9th of March, 2000 that she was a member of the Tamil Tigers but is reported to have stated to the DIS on the 26th September, 2000 that she was not. Before the Refugee Appeals Board however Sutha claimed to be registered with the LTTE because she helped them. In any case, she claims that her family had the closest ties to the LTTE of any in the village and she worked for the group 5 or 6 years until the area was captured by the military. An individual from each family in LTTE occupied territory must join the group and as a member, one is forced to live up to all their requirements. Sutha was forced to receive training. She cared for the wounded, trained others in self-defense, sewed clothes, and transported food. She also fed members of the group that came to their home. The sowing of clothes took place at a location owned by the LTTE and in the course of this work she collected names of those who wanted to help the LTTE and subsequently passed them along to the group. Due to her brothers' connections to the LTTE, there were often members at Sutha's home and she can describe their uniforms accurately.
In 1995, Sutha witnessed her brother, along with friends of his in the LTTE, hide weapons in a hole behind the home. They later returned, dug the weapons up and departed with them.
When the military came to Point Pedro, Sutha hid at her Uncle's home and became registered as his eldest daughter. She hid with her uncle because she feared that neighbors would inform the military about her helping the LTTE. On November 10th, 1998 an officer of the military attempted, ultimately unsuccessfully, to rape Sutha in her uncle's home while neighbors turned their backs. Around this time there were repeated shots fired in the immediate vicinity of the home. Sutha's uncle hid her each time and recommended that she flee to another town, Navatkuli.
During 1995 or 1996, the military ransacked Sutha's grandmother's home 2 or 3 times while she was out. They also once came to her uncle's home looking for her but she managed to flee out the back. After this she stayed with friends instead.
One of the brother's friends who had helped in burying the weapons was captured by the military. The military dragged him through the village and, although he was hooded, Sutha believes she recognized him. According to Sutha's March 9th interview, the friend confessed under torture the place that weapons had been hidden behind Sutha's home. She cannot remember what year this occurred but on this day that the military became aware of Sutha's involvement with the LTTE, she fled to Navatkuli. There she was hidden in a safe-house by Point Pedro's representative to the government, Gramasevaka.
The military arrested Sutha's uncle and thereafter, because his wife confessed that Sutha had been living with them under a false identity, she was arrested too. The uncle was released upon condition that he search for Sutha. He came to visit Sutha in her hiding place in Navatkuli and told her that during his detainment he had gotten to know that the military knew of her involvement with the LTTE and that they were looking for her. It was here in Navatkuli that Sutha heard from her uncle that the brother's friend had said that it was her who had dug up the weapons and buried them in another hiding place. According to Sutha's September 26th interview however, the friend confessed that she had supplied weapons to him. The uncle also said that the military had put Sutha's name on a poster demanding that she turn herself in along with her weapons. It is Sutha's opinion that, while others' names also appeared on the poster, she was particularly sought because authorities believed she knew the whereabouts of further buried weapons.
Sutha's uncle arranged her departure from the Jaffna peninsula as he had also arranged for Puwanesvarajan. Gramasevaka issued the identification paper with which Sutha, on the 26th of Decmber, 1999, traveled from Jaffna to the capital, Colombo. Around the 11th of January, 2000, Sutha was collected in Colombo by an individual who by a long and complex series of clandestine methods, among which Sutha had to be hidden both in a forest and in the trunk of a car, smuggled her into Denmark.
Sutha fears that upon return to her homeland she will be arrested because of her deceased brother's membership to the LTTE, her family's long connection to the organization, and what the captured LTTE soldier said about her. Sutha fears being raped, tortured and killed.
The Refusal from the Danish Immigration Service
The following is a translation of the DIS refusal
of Sutha's request for asylum:
As a motive for asylum you referred to your fear of the Sri Lankan authorities because of your brother's connection to the LTTE and because of your own activities for the movement.
The Administration has not been able to take your explanation as a basis. According to the Foreigners Law § 40, section 1, an asylum applicant must make the asylum motive probable which the foreigner has invoked. The Administration does not find that you have made your motive for asylum probable. You have explained in your case that you fear the Sri Lankan authorities because a captured LTTE soldier had informed on you under duress. Further, you had referred to your deceased brother's activities for LTTE, hereunder that he supposedly had hidden weapons in your family's residence.
The Administration finds that your explanation on the whole seems unbelievable and construed. The Administration has in that regard put weight on the fact that you have stated that you cannot remember when the LTTE soldier was arrested, simply that it was at an unspecified moment during the period from 1995 until your departure. The Administration has further put weight on the fact that you have not been a member of any political party or movement. Regardless that it must be taken as a basis that you executed assignments for the LTTE, the Administration doesn't find that this is a substantiating condition for asylum.
The Administration has attached importance to the fact that these assignments have been of such a limited proportion and secondary character that it can't be presumed to have come to the authority's knowledge.
The Administration has further attached
importance to the fact that you have not been arrested, detained,
charged or punished. Upon this background the Administration
doesn't find that there is a risk that you will be exposed to
persecution in your homeland or that there is other reason that
deportation cannot take place. The Administration has therefore
decided that the police can deport you to Sri Lanka if you do not
This refusal from the DIS is based on an interpretation of Sutha's history that deliberately ignores its key points. The DIS writes "you have not been a member of any political party or movement." While Sutha gave conflicting accounts of the precise nature of her involvement with the LTTE, she made it clear to the Danish authorities that she had significant ties to the organization to the extent that Sri Lankan security forces could benefit from her knowledge of LTTE activities and members.
It may in fact be true that Sutha's "assignments (…) can't be presumed to have come to the authority's knowledge." But this statement conveniently dodges the issue that Sutha was wanted by the military for her suspected knowledge of hidden LTTE weapons, not for sewing shirts and feeding soldiers. The only relevant issue is the knowledge the military suspected Sutha of having, and not the activities in which she was actually engaged. The fact that the military came to the uncle's house looking for Sutha, arrested both him and his wife, and posted Sutha's name publicly on a wanted poster proves that she was sought by the authorities for questioning.
The DIS distorts the facts again when they point
out that Sutha was never "arrested, detained, charged or
punished." This is only true because Sutha was never apprehended
despite the military's repeated efforts to do so. Sutha's uncle
was only released from military captivity on the condition that
he search for her on their behalf.
Trauma and memory
The DIS dismisses all the events that Sutha describes as "unbelievable and construed" based on her inability to recall exactly when it was her brother's friend was arrested. Memory plays a critical and complicated role in those afflicted with PTSD. Andrew M. Jefferson of Copenhagen's International Rehabilitation Council for Torture Victims characterizes the type of nightmares and panic attacks from which Sutha suffers as intrusive memory. Jefferson's research concerns torture victims but would seem to apply equally well to those experiencing PTSD.
To paraphrase Jefferson, intrusive memories are those that come unbidden and without the benefit of conscious interpretation by which to process them. Jefferson writes that events which elicit no particular reaction in others, such as encountering an individual in uniform, causes the victim to re-experience the original trauma by means of a physical response such as the panic and hyperventilation Sutha has experienced. The passage of time in no way alleviates these symptoms.
Intrusive memory thus also plays a deleterious role when the asylum seeker appears before the authorities to explain their case. Frightening memories of prior contact with authority figures exacerbates the applicant's negative reaction to an already intimidating situation. In many cases depression has also already caused the applicant to withdraw into him or herself. Witnessing the extreme difficulty Sutha has making meaningful contact with others in the supportive and non-threatening context of a psychiatric evaluation, it is surprising that Sutha was able to coherently convey as much to the authorities as she did.
Jefferson explains that selective memory is a coping mechanism by which a fragile individual attempts to protect the precarious identity that remains to her. Identity is after all what we remember about ourselves at the instant of waking each morning. Giving voice to our memory is the way we express our identity. But if the victim's memories are too painful for the identity to bear, she will remain silent in an attempt to forget. Thus inconsistencies in the narrative of one who has survived trauma is a normal defense mechanism and not an indicator of intentional falsehood.
Sutha saw her father's bloody and mutilated corpse and her fatally wounded mother after her home was bombed. She narrowly escaped an attempted rape by soldiers as the neighbors passively looked on. These in themselves are events that could only with great difficulty be incorporated into one's narrative of herself.
Jefferson cites a work by Elaine Scarry in which she explains the destructive nature that physical pain has on language. Pain defies articulation and must first be processed by the mind into psychological suffering before it can be translated into words. This is of course the therapy process, giving expression to suffering to allow healing to begin. Such therapy can easily be understood to be a long, painful and faltering process to put suffering into words and yet the asylum seeker is expected to speak right out with perfect accuracy and coherency about experiences that have perhaps never been shared before.
In a study by German graduate student, Weber R., entitled Extremely traumatized refugees in Germany: asylum law and asylum procedure, reads the following: "…survivors of torture suffer a disorder of a functional area which is required to work at its full potential during the asylum procedure- their narrative autobiographical and communicative competencies. …there are many asylum decisions based on interviews with refugees who were suffering from interpersonal and communicative disorder, reducing their narrative competencies substantially." Sutha, thankfully, is not a victim of torture but carries an enormous amount of psychological suffering with her. Her entire grounds for requesting asylum have all been rejected as "unbelievable and construed" simply because she is unable to put a date to the arrest of a soldier, a day that was traumatic enough to cause her to finally take flight from her village.
Competence for Self-Representation in an Asylum Case
Aside from the clear correlation between trauma and memory loss that account for any gaps in the cohesiveness of her story, Sutha's maturation to adulthood was judged under psychiatric evaluation to have been in a state of arrested development. The traumatic experiences Sutha has survived may be the cause of an immaturity that belies her 24 years and renders it impossible for her to care for herself or be held responsible to give a fully coherent account of events in Sri Lanka that led to her flight. Or it may be that retardation already afflicted Sutha prior to these events. In either case it has impacted Sutha's ability to represent her case effectively.
Unaccompanied refugees under the age of 15 who seek asylum in Denmark are evaluated to determine their maturity to ascertain their ability to pursue their own case for asylum. Sutha's obviously diminished capacities certainly warrant that her inability to argue for herself should have been evaluated and taken into consideration. Instead her incoherence was used as an excuse to condemn her entire case.
Refusal from the Refugee Appeals Board
The Refusal Sutha received from the Refugee Appeals Board mimics that of the Danish Immigration Service, that Sutha's own activities for the LTTE do not put her at risk for persecution. But again, it is not what she herself recalls having done, rather what the military believes she did that is at issue. It can never be known what the soldier accused her of under torture.
Sutha told Danish authorities varying accounts of his confession: that her residence had been the site a weapons cache, that she had witnessed their burial, that she herself had reburied the weapons in another location, that she was supplying weapons to the LTTE. The Refugee Appeals Board disbelieves Sutha's claim that she is wanted by the authorities because of these discrepancies in her account of the soldier's accusations. But could these multiple versions of the story not have their origin instead in the rambling confessions of a man under torture? Confessions which Sutha heard second-hand from her uncle who was not himself a first-hand witness to them?
The Refugee Appeals Board thus finds that the applicant, Sutha, was not "concretely and individually pursued when she departed Sri Lanka, nor that she risks such pursuit if she returns to Sri Lanka." In other words, according to the Refugee Appeals Board, having the military arrive looking for her at the front door of her uncle's home while she made her escape out of the back door did not constitute personal persecution.
If residency permission based on humanitarian grounds fails, there might be a chance of obtaining family reunification residency for her. Sutha's brother Puwanesvarajan had previously sought a permit for residency in Denmark for her after her grandmother died based upon family reunification according to the Aliens Act:
§ 9(2)(1): Upon application, a residence permit may be issued to other aliens, provided the alien (…) has close family ties or similar ties with a person permanently resident in Denmark.
This permission was sought during the time leading up to Denmark's scandalous Tamil Case and it is suspected that the rejection of an application for family reunification on Sutha's behalf was part of the general mishandling of Tamils' applications at that time. Sutha had no family left in Sri Lanka after her parents, grandmother and brother were dead and certainly lacked the skills to fend for herself. This may be grounds to register a complaint with Denmark's ombudsman and that possibility will certainly be explored failing all else.
Sutha's Return to Colombo, Sri Lanka
What can Sutha expect upon return to Sri Lanka? The following excerpts from an article by Peter Popham entitled Deported Tamils Face Torture appearing in the online journal Independent on 8 June 2000 substantiates clearly the fear Tamils have concerning deportation:
Detailed reports from Colombo reveal that the Tamils who are deported from European countries after failing to be granted asylum routinely face arrest, extortion, extended detention and torture on their return to Sri Lanka. The returned deportees become non-people: prevented from settling in Colombo, they cannot go back where they came from, especially if that is in the north, because special Ministry of Defence clearance is required - and is never given.
The headaches begin on arrival at Katunayake airport in Colombo, where deportees and others suspected of having left Sri Lanka illegally have whatever documents they may be carrying confiscated and are arrested …without documents they become the target of frequent subsequent arrests. Instantly identifiable as a Tamil by both his name and accent (a Tamil) is highly vulnerable to arrest and further interrogation. Under the Prevention of Terrorism Act (PTA) and the Emergency Regulations, people - almost always Tamil people - who are suspected of involvement in anti-government activities can be picked up and detained indefinitely.
The human rights lawyer Maheswary Velautham, who started the Forum for Human Dignity, monitors abuse of returned deportees (has) said: "Over one thousand Tamils have been arrested and are detained indefinitely in various prisons and police stations. Almost every Tamil is assaulted, tortured and a self-incriminating statement is extracted, which unfortunately is considered admissible evidence under the PTA. The security forces conduct mass arrests and detentions of young Tamils, both male and female. Hundreds of Tamils at a time are picked up during search operations carried out by security forces. Once in prison, Tamils are subject to various forms of torture, ranging from beatings with poles to having their genitals squashed, fingernails pulled out and being pierced through the anus with an electric drill."
Even if Sutha could reach the Jaffna peninsula, conditions there are seriously deteriorated as the result of years of war. Food and medicine are in short supply and sickness among women and children is particularly prevalent. Sutha would face a worse situation in the capital. Information Sutha's lawyer has obtained corroborates Popham's account of circumstances for Tamils in Colombo. She has written in Sutha's application for humanitarian asylum that Sutha will not be able to obtain the police registration necessary for residency or employment. For this reason and because Sutha has no network of any sort in Colombo and does not speak Singalese which is the capital's official language, she will be forced into illegal work such as prostitution. Sutha's lawyer also cites an even worse option: an increasing number of LTTE terrorists are women.
In the spring of last year the Sri Lankan increased the already excessive power of security forces to make arrests. Amnesty International and other human rights groups noticed an immediate increase in abuses. Arrests, "disappearances" and torture are on the rise in Sri Lanka and in such a climate a frail women suspected of concealing weapons for the LTTE will be highly vulnerable to persecution.
The Danish Immigration Service unjustly rejected Sutha Krishnapillai's rightful claim to asylum as a convention refugee. Sutha's appeal for humanitarian asylum must succeed to insure her survival.