TAMIL EELAM STRUGGLE FOR FREEDOM

Tamil Refugees & Asylum Seekers

Genocide'83 led thousands of Tamils from the island of Sri Lanka to seek political asylum in Tamil Nadu, Europe, North America and Australasia. During the succeeding years, as the conflict in the island increased in intensity, this outflow continued. Article 1A(2) of the International Convention relating to the Status of Refugees defines a refugee as a person who

".......as a result of events occurring before 1 January 1951 and 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; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it."

Except for seven states (Brazil, Italy, Madagascar, Malta, Monaco, Paraguay and Turkey), all other parties to the Convention apply the refugee definition without geographical or time limitation.

Additionally, the Convention relating to the status of Stateless Persons, the 1967 Protocol relating to the Status of Refugees , the Declaration on Territorial Asylum , and the Declaration on the Human Rights of Individuals Who are not Nationals of the Country in which They Live provide the international legal frame work relating to refugees and asylum seekers.

During 1984 and 1985, Amnesty International opposed the refoulement of Tamils. On 9 January 1985 Amnesty announced that it believes that, if returned against their will, all members of the Tamil minority have reasonable grounds to fear:

1. that they may fall victim to arbitrary killings by members of the security forces
2. that they may be subjected to arbitrary arrest and detention

But, more often not, the efforts of Charter '87 and Amnesty International notwithstanding, the implementation of the law relating to refugees and asylum seekers has been largely influenced by policy considerations and real politick (both in the West and in India).

David Matas wrote in Canada in November 1984:

"Refugee claimants are among the most wretched people in Canada. They have fled countries where they have been imprisoned for their beliefs, they may have been tortured, their lives may have been threatened. They know no one or almost no one in Canada. They normally cannot speak either French or English. A refugee claim can take years to process before a final determination is reached. Until a person is recognised as a refugee, he is not recognised as a resident, even though he may be here for years. Despite his lengthy stay, he is treated as if he will be leaving in a week or two."

Nirmala Chandrahasan in her well researched 'Study of the Reception of Tamil Asylum Seekers into Europe, North America and India' during the four year period 1983 to 1987 (published in the Harvard Human Rights Yearbook, Spring 1989), commented:

"During this period the greatest number of Tamils - approximately 130,000 - sought asylum in India, separated from the northern start of Sri Lanka by a narrow stretch of sea, the Palk Straits. Approximately 70,000 Tamil asylum seekers went to Europe and North America."

She concluded:

"The treatment of Tamil asylum claims in different jurisdictions highlights two important points about recent developments in the handling of refugees. First, the reception of Tamils in North America, Europe and India indicates the extent to which national policy perspectives have shaped the respective refugee determination processes. .. A second development observed in the practice of Tamil-receiving states is the categorisation of the refugees allowed to stay into subgroups, such as "B status" (in the Netherlands) or "exceptional leave to remain" (in the United Kingdom) or with no designated legal status at all (in India). ..The question remains to what extent the fate of large groups of persons such as the Tamils can be left to the discretion of governments, rather than firmly based within a framework of binding legal norms."

Since 1987, the numbers of Tamil asylum seekers have continued to increase together with a growing determination of Western governments to stem the flow.

"Tamil refugees have a special place in British immigration law and practice over the last few years. Their arrival has provoked restrictive new laws and practices which have tightened British immigration control and made it harsher and less humane for other non-European settlers and refugees as well as Tamils." (Closed Doors: New Restrictions on the Rights of Asylum Seekers - Anne Owers - 1988)

Even after the Indo Sri Lanka Accord of 1987, Amnesty International continued to emphasise that there was considerable uncertainty about the safety of Tamils in Sri Lanka.

In 1990, the Minority Rights Group in London, profiled the case of Seenithamby Javanarajah, an asylum seeker, who was deported to Sri Lanka by the British authorities and was tortured on his return to the island.

"During his forced return to Sri Lanka Javanarajah travelled to Jaffna where the Indian Peace-Keeping Force (IPKF) was responsible for security. A month after his arrival he was detained by the IPKF and made to appear before three hooded informants' one of whom nodded his head when Javanarajah appeared. He was then taken to an IPKF camp, where he was detained, interrogated, kicked and beaten with pipes. He was severely beaten three more times over the next seven days and it was only aver 10 weeks of detention that this family managed to secure his release by bribery."

The presence of Tamil asylum seekers in Germany and Switzerland, brought with it overt racist attacks. In 1991, one Tamil woman asylum seeker was killed in Germany. Widespread protest meetings were held by Tamil associations.

In early 1994 ( in a well documented appeal ), the Swiss Federation of Tamil Associations called upon the Swiss authorities to reconsider their decision to forcibly repatriate Tamil asylum seekers to Sri Lanka and pointed out:

"On 6 October 1993, an European Parliamentary delegation which visited Sri Lanka told the Colombo Press that ''the current situation in Sri Lanka was not conducive for Western governments to return asylum seekers''. These views give the lie direct to the claims sometimes made on behalf of the Sri Lanka government that '' the widespread human rights abuses of the last few years have sharply declined and that the Sri Lanka Government have taken measures to protect the human rights of all its citizens as a result of pressure from bodies such as Amnesty International and donor governments."

The Appeal added:

"May we respectfully say that instead of sending back Tamil asylum seekers to face detention, torture and death in Sri Lanka, the Swiss authorities and others with a liberal conscience should use their not inconsiderable influence and power, to persuade the Sri Lanka government to address the underlying causes of the conflict and recognise the right of the Tamil people to live in their own home land, free from the oppressive rule of a Sinhala dominated Sri Lanka government. "

Again, perhaps not surprisingly, the United States has adopted a particularly restrictive approach to Tamil refugee applicants. ( United States Court Rejects Tamil Asylum Claim - 1995 ). However, the case of Balaranjini Ratnam was an exception to the general approach.

The plight faced by some Tamil asylum seekers was brought to public attention by a 36 year old Tamil asylum seeker in Sweden setting himself on fire on 2 March 1994. The action of the Tamil asylum seeker in Sweden in preferring death, even by fire, to a forced deportation to Sri Lanka shows in stark terms the oppressive ground reality in Colombo and elsewhere in the island of Sri Lanka. ( Tamil Asylum Seeker sets himself on fire in Sweden - March 1994)

On 10 August 1996, the BBC reported an interview with Sri Lanka Foreign Minister Lakshman Kadirgamar:

"There is no discrimination against Tamils in the country nor is there any danger to their lives, Foreign Minister Lakshman Kadirgamar told foreign media personnel recently... (In response to a) question as to the exact truth of the claims made by the Tamil youths overseas who complain that they were discriminated against due to fact that they were Tamils and their lives were in danger, Minister Kadirgamar in his reply said that they make these complaints so that they could seek political asylum in foreign lands. They are, in actual fact, economic refugees..."

Whilst the British Refugee Council publication Sri Lanka Monitor has taken pains to report fairly on the Tamil refugee situation, the United Nations High Commissioner for Refugees has played an increasingly controversial role in relation to Tamil asylum seekers and has been criticised for being influenced more by real politick than by humanitarian considerations. The British Refugee Council Sri Lanka Monitor reported in September 1997:

"UNHCR declares in a March Information Note that orderly and safe return of rejected asylum-seekers to their country of origin could safeguard the principle of asylum for those who genuinely need protection. UNHCR further says that rejected asylum-seekers are not singled out at Colombo airport or later and people are treated fairly and humanely during Army security checks.

Human rights agencies say that Colombo conditions for Tamils have hardly changed since the British Refugee Council mission in December last year and its report in February. The situation remains precarious for Tamils with the continuing LTTE threat to the capital. President Chandrika Kumaratunge herself said in August that she was aware of innocent Tamils being detained by security forces for ransom. London-based human rights agency Amnesty International, during its August visit, uncovered evidence of widespread torture, including in Colombo.

Observers say UNHCR's position is prompted by considerations other than the real situation in Colombo. They point to a recently leaked December 1993 internal UNHCR memo from the agency's Sri Lankan Resident Representative to its Geneva headquarters acknowledging that the security situation for Tamils in Colombo had been deteriorating as evidenced by increased arrests.

The memo advises against freezing UNHCR guidelines, which permit Western governments to repatriate Sri Lankan asylum-seekers, on the grounds that frozen guidelines would be difficult to reinstate. Freezing the guidelines would upset the Sri Lankan authorities and in order to reinstate the guidelines the burden of proof that the situation had improved would fall on UNHCR.

The recommendation to continue the guidelines had been taken, according to the memo, on the request of the then Sri Lankan Presidential Advisor Bradman Weerakoon who had pointed out that the human rights implications of a UNHCR statement would far outweigh the consequences of deportations. The memo also says that political implications vis a vis the Sri Lankan government of any UNHCR statement need to be carefully weighed, particularly since it would be used in courts in asylum countries."

The UNHCR stand paved the way for further deportations of Tamil asylum seekers from Europe.

"The governments of Sri Lanka and the Netherlands signed an agreement on 10 September for the forcible repatriation of rejected asylum-seekers deepening insecurity among 350,000 Tamil refugees across the world.

Some 350 asylum-seekers will be returned to Sri Lanka in the next twelve months and the pact is due for review in September next year. Sri Lankan authorities have agreed to issue identity documents to refugees who do not have any travel papers.

The agreement for the return of Sri Lankan asylum-seekers is the second in Europe. Under a January 1994 pact between the Swiss and the Sri Lankan governments 696 rejected refugees have been repatriated in the last 33 months.

In the first eight months of 1997 Netherlands received 14,145 refugees, an increase of 28% compared to 1996, some 1,300 of them from Sri Lanka. A plane carrying 173 Sri Lankan refugees arrived in Amsterdam's Schipol airport in February from the Turkmenistan capital of Ashkhabad causing a furore and allegations of abuse of the asylum system.

Over 15,000 Sri Lankans have sought refuge in the Netherlands since 1984. The Dutch Foreign Affairs minister has concluded that the situation in Colombo is safe for Tamils and quoting international refugee agency UNHCR, claims that those repatriated from other European nations in 1996 and 1997 have had no problem in the Sri Lankan capital.

Refugees are concerned that other European nations may follow suit. Introduction of stricter asylum laws and procedures continue and less than 5% of Sri Lankans are granted UN Convention refugee status in European countries. Several nations, including Denmark and Norway, are deporting Sri Lankans even without formal agreements.

The Danish police have listed 154 Tamils who are in hiding after Denmark began deportations late last year. Sweden introduced a new type of air ticket visa in September for citizens of twelve countries, including Sri Lanka." (British Refugee Council, Sri Lanka Monitor, September 1997)

Tamil asylum-seekers in custody for some ten months in detention centres in Australia staged a hunger strike on 12 October 1997 against prolonged detention.

"Tamil asylum-seekers in custody for some ten months in detention centres in Australia staged a hunger strike on 12 October against prolonged detention. Their asylum applications were denied by the Refugee Review Tribunal. They have appealed to the Federal Court and are likely to remain in detention until their cases are heard. Tamil refugee organisations say such detention is a violation of human rights and have appealed to Immigration and Multicultural minister Philip Ruddock. Australian press reports say new legislation is currently being considered to deny appeals to refused asylum-seekers. In July the Immigration Department introduced a charge of $1,000 on unsuccessful applications before leave to appeal was granted. Some 640 applications from Tamils are said to be pending. In July 17 Tamils were found stranded at Coral Bay, 700 miles north of Perth.

There is increasing concern over the plight of Sri Lankans who are stranded in other countries. The Tamil Refugee International Network (TRIN) estimates that over 20,000 Sri Lankans are stranded in over 12 countries in South-East Asia, Africa and Eastern Europe, including 5,000 in Russia and 5,000 in Thailand. According to reports, around 1,500 foreigners including 234 Sri Lankans are held in a Lithuanian Army camp. A young couple who returned to Sri Lanka blame their travel agent for the harrowing journey through Moscow and Minsk in Belorussia. They were transported in a container and locked-up in a barn for nine days with meagre food. They walked many miles in the bitter cold before reaching Poland through Lithuania but were arrested and returned to the Army camp in the Baltic state. After receiving some money from relatives in Denmark they were returned to Sri Lanka through Moscow.In the meantime, the Sri Lanka government has continued to persist in its denial that Tamils have a well founded fear of persecution if they return to the island. (British Refugee Council, Sri Lanka Monitor, October 1997)

On 18 August 1998, Denmark signed a repatriation agreement with Sri Lanka. The British Refugee Council, Sri Lanka Monitor, reported in September 1998:

"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. Denmark became the third European country on 18 August to sign an agreement with Sri Lanka for the repatriation of rejected asylum-seekers, following the examples of Switzerland and Netherlands. A number of Sri Lankans had been returned before the agreement was signed.

The repatriation will be phased and the accord envisages the return of 350 asylum-seekers in the first year. ... Two weeks earlier, Emergency rule was extended to the whole of 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."

The Colombo based Human Rights Action Committee ( [email protected] ) in a Press Release on 8 April 1999 declared:

"Veluppillai Balachandran, a 39 year old Tamil refugee, killed himself on the 23rd March 1999, rather than be deported to Sri Lanka. He had previously staged a hunger strike to attract attention to his plight while he was held in the deportation prison (in Moers - NRW) and he had given several warnings to the courts and to the authorities in the deportation prison that he would kill himself rather than be deported to be tortured by the racist Sri Lankan military. Mr. Balachandran's suicide is a tragic indictment of the asylum process in Ger-many where a Tamil who clearly had a "well founded fear of persecution" was rejected as a genuine refugee and thereby left with no option but to kill himself."

The British Refugee Council Sri Lanka Monitor commenting on the plight of Tamil asylum seekers in Germany said:

"Sources say at least 50 Sri Lankan asylum-seekers have been deported from Germany in the last six months. The UK-based National Coalition of Anti-Deportation Campaigns says asylum-seeker V Balachandran, 39, committed suicide in a German prison on 23 March, before deportation to Sri Lanka.

The German Foreign Ministry claims that the 700 people disappeared in Jaffna in 1996 were LTTE cadre who had infiltrated the peninsula after its capture by the Army. The Ministry further claims that the Sri Lankan authorities implement the Emergency regulations and the Prevention of Terrorism Act in a pragmatic way and regarding torture, have taken steps to improve the situation.

But the US State Department reports that security forces continue to torture and mistreat detainees and the government has not made regulations under torture law to prosecute security personnel. In a March Background Paper, UNHCR, quoting sources, reports on torture, disappearances, extra-judicial executions and mass arrests of Tamils in Colombo.

UNHCR continues its "passive" or indirect monitoring of rejected Sri Lankan asylum-seekers from Switzerland and informally assists Denmark and Netherlands to check on returned refugees. UNHCR also receives information regarding refugee returns from Norway. UNHCR reiterates its view that Sri Lankan asylum-seekers whose claims have been processed through full and fair procedures and found not to fulfil the refugee criteria may be returned safely to Sri Lanka. This, UNHCR adds, does not obviate other reasons for non-return such as is contemplated under the UN Convention on Torture."