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Home > Struggle for Tamil Eelam > Tamil Refugees & Asylum Seekers > European Court of Human Rights stops UK from returning Tamil to Sri Lanka
TAMIL REFUGEES & ASYLUM SEEKERS
European Court of Human Rights
17 July 2008
release issued by the Registrar
The European Court of Human Rights has today notified in writing its lead Chamber judgment1 in the case of NA. v. the United Kingdom (application no. 25904/07).
The Court held unanimously that the applicant's expulsion to Sri Lanka would be in violation of Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights.
Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant 4,451 euros (EUR) for costs and expenses, less EUR 850 already received in legal aid from the Council of Europe. (The judgment is available only in English.)
1. Principal facts
The applicant was born in 1975 in Sri Lanka. He currently lives in London. He is an ethnic Tamil.
He entered the United Kingdom clandestinely on 17 August 1999 and claimed asylum the next day on the grounds that he feared ill-treatment in Sri Lanka by the Sri Lankan army and the Liberation Tigers of Tamil Eelam (the so-called "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 was 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. During the 1997 detention the applicant 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 in 1997 and 1998.
His claim was refused by the Home Secretary on 30 October 2002. His appeal against that decision was heard and dismissed by an Adjudicator on 27 July 2003, who found that the applicant's fear of ill-treatment by the army upon his return was unjustified.
He was issued with removal directions for 1 April 2006. On 3 April 2006 the Home Secretary refused to consider his further representations as amounting to a new asylum application. 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 return.
After the applicant's successive applications for judicial review of the decision to return him to Sri Lanka failed, new removal directions were issued for 25 June 2007. On that date, following the applicant's request, the President of the competent Chamber of the European Court of Human Rights decided to apply Rule 39 of the Rules of Court (interim measures) and indicated to the Government that the applicant should not be expelled until further notice.
In the course of 2007 the Court received an increasing number of requests for interim measures from Tamils who were being returned to Sri Lanka from the United Kingdom and other Contracting States. Interim measures have since been granted in respect of three hundred and forty-two Tamil applicants in the United Kingdom.
In response to a letter from the competent Section Registrar in October 2007, the Agent of the United Kingdom Government stated that since the Government did not consider that the current situation in Sri Lanka warranted the suspension of removals of all Tamils who claimed that their return would expose them to a risk of ill-treatment, the Government was not in a position to assist the Court by refraining from issuing removal directions in all such cases on a voluntary basis. It was suggested that the difficulties posed by the increasing numbers of requests for interim measures by Tamils could best be addressed through the adoption of a lead judgment by the Court.
2. Procedure and composition of the Court
The application was lodged with the European Court of Human Rights on 21 June 2007.
Judgment was given by a Chamber of seven judges, composed as follows:
Lech Garlicki (Polish), President,
3. Summary of the judgment2
Relying on Articles 2 (right to life) and 3 (prohibition of inhuman or degrading treatment), the applicant alleged that if returned to Sri Lanka, he was at real risk of ill-treatment.
Decision of the Court
The Court agreed with the Government that the complaint under Article 2 could be dealt with in the context of its examination of the related complaint under Article 3.
The Court first considered the general principles applicable to expulsion cases. It then set out its approach to the objective information which had been placed before it. On that basis, it assessed the risk to Tamils returning to Sri Lanka and the individual circumstances of the applicant's case.
The risk to Tamils returning to Sri Lanka
The Court observed as a preliminary matter that the Government proposed to remove the applicant to Colombo. In the light of this, it was not necessary to examine the risk to Tamils in areas controlled by the Tamil Tigers or any other part of the country outside Colombo.
It was accepted by the parties to the case that there had been a deterioration in the security situation in Sri Lanka. However, the United Kingdom authorities, while recognising this deterioration and the corresponding increase in human rights violations, had not concluded that this created a general risk to all Tamils returning to Sri Lanka. Nor had the applicant in the present case sought to challenge that conclusion in his submissions. The Court saw no reason to reach a different conclusion.
Moreover the Court also found that the United Kingdom authorities had given serious and anxious consideration to the risk to Tamils returning to Sri Lanka. They had examined all the relevant objective evidence and, just as importantly, considered the appropriate weight to be given to it.
In the Court's view, both the assessment of the risk to Tamils of certain profiles and the assessment of whether individual acts of harassment cumulatively amounted to a serious violation of human rights could only be done on an individual basis.
It was moreover in principle legitimate, when assessing the individual risk to returnees, to carry out that assessment 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.
The assessment of whether there was a real risk had to be made on the basis of all relevant factors which might increase the risk of ill-treatment. It was also possible that a number of individual factors which when they were considered separately did not constitute a real risk might, when taken cumulatively and when considered in a situation of general violence and heightened security, give rise to such a real risk.
The Court found that the information before it 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 Tamil Tigers.
In respect of returns to Sri Lanka through Colombo, the Court also found that there was a greater risk of detention and interrogation at the airport than in Colombo city. Hence the Court's assessment of whether a returnee was at real risk of ill-treatment might turn on whether that person would be likely to be detained and interrogated at Colombo airport as someone of interest to the authorities. As regards the procedures followed at Columbo airport, the Court considered that at the very least the Sri Lankan authorities had the technological means and procedures in place to identify at the airport failed asylum seekers and those who were wanted by the authorities.
The risk to the applicant
As regards the alleged risk to the applicant from the Tamil Tigers, the Court accepted the domestic authorities' assessment that while there might be a risk to Tamils in Colombo from Tamil Tigers, this would be only to Tamils with a high profile as opposition activists, or those seen as renegades or traitors. The applicant would therefore not be at real risk of ill-treatment contrary to Article 3 by the Tigers if returned to Colombo.
In assessing the applicant's 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 identified by the domestic authorities. However, compared with the last factual assessment made by the national authorities, it did so in the light of more recent developments and in particular having due regard to the deterioration of the security situation in Sri Lanka and the corresponding increase in general violence and heightened security. In addition it took a cumulative approach to all possible risk factors identified by the applicant as applicable to his case.
Thus one such risk factor was a previous criminal record and/or arrest warrant. In the Court's view, the present applicant could rely on this risk factor, particularly since his claim had been found credible on this point by the United Kingdom authorities. The applicant's father had signed a document to secure his son's release. Although the precise nature of this document was not known, the logical inference was that it would have been retained by the Sri Lankan authorities at the time of the applicant's release.
As regards the applicant's scars, the Court considered that where there was a sufficient risk that an applicant would be detained, interrogated and searched, the presence of scarring, with all the significance that the Sri Lankan authorities were then likely to attach to it, had to be taken as greatly increasing the cumulative risk of ill-treatment to that applicant.
The Court recognised that it had been over ten years since the applicant had been last detained by the Sri Lankan army. However, the passage of time could not be conclusive in assessing the risk that he faced without a corresponding assessment of the current general policies of the Sri Lankan authorities. Their interest in particular categories of returnees was likely to change over time in response to domestic developments and might increase as well as decrease.
Insofar as they had been relied on in this case, the Court also examined the additional relevant factors: the age, gender and origin of a returnee, a previous record as a suspected or actual Tiger member, return from London, having made an asylum claim abroad and having relatives in the Tigers.
Where present, these additional factors contributed to the risk of identification, questioning, search and detention at the airport and, to a lesser extent, in Colombo. With the exception of having relatives in the Tigers, the Court considered that the remaining factors were all capable of being relied upon by the applicant and, on the facts of his case, their cumulative effect was to increase further the risk to him, which was already present due to the probable existence of a record of his last arrest and detention.
In conclusion, the Court took note of the current climate of general violence in Sri Lanka and considered cumulatively the factors present in the applicant's case. In the light of its finding that those considered by the authorities to be of interest in their efforts to combat the Tigers were systematically exposed to torture and ill-treatment, it took the view that 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. On this basis, the Court found that there were substantial grounds for finding that the applicant would be of interest to the Sri Lankan authorities in their efforts to combat the Tigers. In those circumstances, the Court found that at the present time there would be a violation of Article 3 if the applicant were to be returned.