The decision

Heard at Field House

KV (Country Information - Jeyachandran - Risk on Return) Sri Lanka [2004] UKIAT 00012
On 15 January 2004

Dictated 16 January 2004


Date Determination notified:

....10/February 2004...


Mr J Barnes (Chairman)
Professor B L Gomes Da Costa JP






For the appellant: Mr J Morris, Home Office Presenting Officer
For the respondent: Ms S O’Rourke, Counsel, instructed by Tamil Welfare Association (Romford Road)


1. The respondent is a citizen of Sri Lanka of Tamil ethnicity born on 30 June 1979. She claims to have arrived in the United Kingdom on 20 February 2001 and on 23 February 2001 an application for asylum was made on her behalf by her representatives. Following submission of the self-evidence form and an interview the Secretary of State refused her asylum application for the reasons set out in a letter dated 22 March 2001. On 28 March 2001 he issued directions for her removal to Sri Lanka as an illegal entrant following refusal of her asylum application. She appealed against that decision on both asylum and human rights grounds and the Secretary of State forwarded the appeal papers to the Immigration Appellate Authority on 3 October 2002. The appeal was heard on 19 May 2003 by an Adjudicator, Mr J Brennan, who found the appellant to be credible and allowed her appeal both under the Refugee Convention and under Article 3 of the European Convention.

2. The Secretary of State now appeals with leave against that decision.

3. There was in the written skeleton argument of Ms O’Rourke, an indication that the appellant sought to raise issues in respect of her right to family life under Article 8 of the European Convention but we note that no such claim was raised in her original grounds of appeal to the Adjudicator and, although we accept that there was clearly some evidence of the appellant’s marriage subsequent to her arrival in the United Kingdom to a Sri Lankan citizen who has exceptional leave to remain here, it did not appear from the record of proceedings that any Article 8 claim had been raised before the Adjudicator by Ms O’Rourke who represented the appellant then also. When pressed on the point, Ms O’Rourke finally conceded that she had not sought to raise Article 8 in any way before the Adjudicator although there had been some evidence which might have been relevant to such an issue. The Secretary of State was granted permission to appeal on 25 July 2003 and that determination was promulgated to the parties on 15 August 2003. The respondent failed to make any application under Rule 19 of the Immigration and Asylum Appeals (Procedure) Rules 2003. Rule 19(2) requires such an application to be made within 10 days after the respondent is served with notice that the appellant has been granted permission to appeal and there is no provision for extension of time for a respondent’s notice within the Rules. The respondent has accordingly had the opportunity by giving the appropriate notice to seek to raise Article 8 issues before us but has failed to do so. In those circumstances our consideration of this appeal is restricted to the appellant’s grounds of appeal before us.

4. The accepted factual history of the appellant is that between 1995 and 1997 whilst living in an area controlled by the LTTE, the appellant had assisted the LTTE by dressing the injured and wounded but it does not appear that that past assistance was known to the authorities. In 1997 the appellant and her family moved back to Inuvil where they owned a farm. In mid-December 2000 there was a confrontation between The Sri Lankan army and the LTTE close to their home and an injured LTTE member reached a neighbour’s house where he died. This resulted in the neighbours, together with all the young people in the neighbourhood, being arrested by the Sri Lankan army, including the appellant who was interrogated and seriously ill-treated during her detention although she did not admit to any involvement with the LTTE. In the course of her detention she was raped on three occasions but her mother was ultimately able to procure her release on 21 January 2001 with the help of the Eelam People’s Democratic Party to whom her mother had paid a substantial bribe to procure her release. She was released on condition that she should report to the army camp every Saturday but it was decided by her mother to make arrangements for her to leave Sri Lanka. She left her home area on 23 January, two days after her release and left the country by air with the assistance of an agent on 17 February 2001.

5. In paragraph 11.2 of the determination the Adjudicator refers to the Tribunal decision in Jeyachandran [2002] UKIAT 01869 that a real risk occurs only in exceptional cases, and to paragraph 11 of the judgment of Buxton LJ in Selvaratnam [2003] EWCA Civ 121 where he quotes what is recorded in paragraph 6.1 in the Home Office Investigative Team Report as follows:

“The Director explained that if a returnee were not wanted they would not be stopped at the airport. However when the CID are certain that the individual has committed or been convicted of an offence then they would be stopped. A computer holds the name, address and age of any wanted person.”

6. The Adjudicator allowed the appeal on the following basis.

“On the objective evidence before me there are substantial grounds for believing that on arrival at Colombo airport the appellant would be detained. She would not simply be a returned asylum seeker but a person who very recently has been in detention in that country for a specific reason, a reason that is identified by the authorities as a ground for taking an interest in its citizens, and had unlawfully escaped. (Our emphasis)

The appellant is still of interest to the authorities in Sri Lanka and as such is likely to be detained on return. There is substantial evidence about the likelihood of torture of detainees and therefore there is a real risk that the appellant will be tortured on her return. An added problem is that the appellant is recently delivered of a child and even if we were to ignore the pre Sri Lanka situation she is of a delicate mental condition.”

7. That is the sum of the reasoning of the Adjudicator before whom Ms O’Rourke had submitted, as indeed she submitted to us, that it was the fact of failing to report in accordance with the conditions of her release which meant that the appellant had “unlawfully escaped” from Sri Lanka and which would lead to the reasonable likelihood of detention on arrival.

8. The grounds of appeal, on which Mr Morris relied before us, were firstly that the Adjudicator had erred in law by allowing the appeal in that he had failed to give clear and valid reasons as to why the appellant would be at risk if returned to Sri Lanka at the date of determining the appeal. It was challenged that he had not taken full account of the current objective material relating to the peace process and the Tribunal decisions of Thiarajah [2002] UKIAT 04917 and Jeyachandran were relied on in this respect. In particular there was no evidence of an arrest warrant or further evidence to suggest that the respondent was wanted in Sri Lanka, but it was said her last arrest [there was in fact only one arrest] was long before the commencement of the ceasefire and that she did not fall into the exceptional case or category envisaged in Jeyachandran, a proposition from which the Court of Appeal did not dissent in Selvaratnam although they distinguished the case of that particular appellant on the particular facts.

9. We should observe that in the latter case the accepted evidence was that the army authorities had information which confirmed that Mr Selvaratnam had previously worked for the LTTE, that he had signed two papers whilst in detention, one of which was in Singhalese and which he believed to be a confession of some kind and the other of which was a blank sheet of paper, and that he had actually escaped from custody immediately prior to leaving the country.

10. It was Mr Morris’ oral submission to us that as a matter of fact there was no arguable basis on which it could be said that this respondent was an exceptional case, her case depending on the fact of failure to report in response to reporting conditions as putting her in the category of a “wanted” person in Sri Lanka.

11. We had the benefit of both written and oral submissions from Ms O’Rourke but it became clear that it was indeed the nub of her submissions that danger to the appellant resulted from the failure to comply with reporting conditions. We asked her whether there was any objective evidence to which she could refer us which supported the contention that somebody in the situation of the appellant would be wanted by the Sri Lankan authorities but she finally agreed that there was no such objective evidence to which she could refer us. She submitted that the respondent’s treatment in detention was illustrative of the fact that she was under suspicion at the time of her detention. That may be so and the treatment to which she was subjected is clearly wholly unacceptable. Mr Morris did not demur from the proposition that if there were a real risk that she would again be detained, then she would be entitled to succeed before us. Such objective evidence as there was, however, did not support the submission that failure to report would lead to further adverse attention of somebody who had been voluntarily released by the Sri Lankan authorities in the changed circumstances which now apply in Sri Lanka. It had, indeed, been the evidence given to the Home Office Fact-Finding Mission which had visited Sri Lanka in March 2002 after the ceasefire was in place, that the CID stated that a failure to report in response to reporting conditions would not lead to an adverse interest on the part of the Sri Lankan authorities. That evidence was accepted by the Tribunal in Brinston [2002] UKIAT 01547 which fully reviewed the situation in Sri Lanka in May 2002 following the ceasefire. It is an approach which has been applied by the Tribunal in the many Sri Lankan appeals which have been determined since Jeyachandran and Brinston and we see no arguable basis on which the Adjudicator could, had he properly considered the evidence before him, have reached the conclusion that Ms O’Rourke’s submission as to the effect of non-reporting was that which she put forward. It was plainly against the weight of the evidence and we are satisfied that the Adjudicator’s findings as to the risk on return at the time he heard the appeal are unsustainable.

12. The second line of submissions made by Ms O’Rourke was that the situation in Sri Lanka had now changed for the worse and that the views expressed in the CIPU Country Report of October 2003 as to the safety of return for the generality of Tamil asylum seekers could no longer be maintained. We put it in that way because the position up to and including that report has been considered by the Tribunal on many occasions and it is the settled view of the Tribunal that, having heard extensive argument on the issues, the CIPU report does fairly reflect the diminution in risk which was first observed in Jeyachandran and Brinston. The additional evidence to which Ms O’Rourke directed our attention concerned the political differences between the President and the Prime Minister of Sri Lanka in November 2003 which are reflected in a number of BBC News Items produced to us dating between 4 November 2003 and 7 January 2004 as well as the latest letter from the UNHCR on the position on returns to Sri Lanka which is dated 15 December 2003. That letter indeed summarises the matters which are dealt with in the BBC News reports and it is appropriate that we quote the relevant passages from the UNHCR letter which are based on the latest information they have received from their branch office in Colombo. They are as follows:

“There has been a noticeable improvement in the human rights situation in Sri Lanka since the signing of the MOU in February 2002 and the subsequent peace talks. However, despite increased freedom of movement and other improvements, the human rights situation is still far from satisfactory. The checkpoints remain in place between the LTTE and government-controlled areas; political killings continue (especially in the east of the country); non-state actors continue to harass and extort taxes from the local population; and there seems to be widespread impunity for human rights violations.

The President declared a state of emergency on 6 November 2003. As a consequence of the declared state of emergency there was a noticeable increase of soldiers on patrol in many parts of the country, and ID checks were carried out in Colombo – and most likely also in other areas. Reports received by the Consortium of Humanitarian Agencies in Sri Lanka imply that the security forces at certain crossing points may be involved in imposing arbitrary and random restrictions on the freedom of movement of persons and goods, similar to that which existed before the ceasefire agreement in February 2002. The political leadership of the country has publicly stated that there will be no reversal of the peace process; however, these types of reports are an indication that fear is creeping back into society making the situation more volatile.

Although the declaration of a state of emergency has now been reversed, it is unclear how the present political power struggles, related both to the peace talks and other issues, will impact on the human rights situation. Given the present situation, we would strongly urge you to verge on the side of maximum caution in any Refugee Status Determination decisions.

In light of the foregoing, UNHCR maintains the view that although steps towards peace have been taken in Sri Lanka recently, it is still premature to advocate that the situation has reached a satisfactory level of safety to warrant the return of all unsuccessful asylum applicants to Sri Lanka. This caution is now also warranted by the uncertainty surrounding the effects of the recent Presidential decree imposing and then reversing a state of emergency in Sri Lanka.

The present political situation in Sri Lanka is very unstable. Although it is still too early to say what impact the new situation will have on the human rights situation, recent events have certainly reminded the population of the widespread impunity for human rights violations in the past – and this in itself makes the situation more prone to destabilisation.”

13. We have taken fully into account what is said in that letter and we acknowledge the need for caution. Nevertheless, it does not seem to us that there has been any change in the position which has applied for some long time now, namely that all parties to the conflict which ceased in December 2001 on a voluntary basis and was then reinforced by the formal agreement in February 2002, remain committed to avoiding any return to armed combat as existed in the past. There are two significant matters which in our view follow from the UNHCR letter. First, in the opening two paragraphs there is no suggestion of reports of arrest and detention on suspicion of LTTE connection, or indeed any reference to arrests of returnees at the airport. We are aware that earlier in 2003 there was public concern because of the policing measures taken to deal with specific threats from a small number of extremist militants who had or were feared to be conspiring to commit serious criminal acts which began with the murder of a police officer in a police station. At that time senior members of government were at pains to make it clear that there would be no return to operations under the Prevention of Terrorism Act or the revival of the Emergency Regulations but that the police would operate only under due process in accordance with the requirements of the ordinary criminal law, including compliance with the obligation to produce anyone detained before the courts within 24 hours of detention. Given those events it seems to us significant that there is no suggestion of operations being carried out outside the normal provisions of the criminal law save anecdotally to a limited extent which is not said to involve arrest or detention. Secondly, the letter makes clear the political will on the part of the government, despite political differences between the Singhalese parties, to avoid a return to a state of emergency by the swift reversal of one introduced for a short period only because of those internal differences. Negotiations in any peace process are bound to be subject to fluctuations and to stalling from time to time. There will inevitably be real differences based upon the past experiences of both sides which require time to be accommodated. Nevertheless, it has for some time now been the case that there has been international acceptance of the appropriateness of return of failed asylum seekers unless there are clear reasons for considering that they may be particularly at risk.

14. Ms O’Rourke urged upon us that the absence of a birth certificate might make it impossible for the appellant to obtain regular identification documents on her return. There are a number of difficulties with this submission. To begin with, there is no clear evidence that the respondent is not in possession of a birth certificate or that she could not obtain it by requesting that it be forwarded to her by her family in Sri Lanka. If returned, she will be issued with temporary travel documentation obtained by the Home Office in conjunction with the Sri Lankan High Commission in London and she will not re-enter Sri Lanka undocumented. The issue of such documentation will entail an acceptance that she is who she says she is by the Sri Lankan authorities and the background information makes clear that there are in place arrangements in Sri Lanka for the provision of identity documents for those returning within a short timescale. We do not consider there is any validity in this argument.

15. Further, this respondent has never admitted being either a past member or supporter of the LTTE but, even if she had done so, such support was at a low level in an LTTE controlled area in response to a situation of ongoing conflict which no longer exists. We do not accept that the severity of her treatment at a time when that conflict still continued has any relevance to a current risk. From the point of view of the authorities, she is not someone who is known to have assisted the LTTE in the past even in the minor way which she did. She was arrested in a general round-up situation arising out of one specific incident where the arrests were on an indiscriminate as opposed to specifically targeted basis, and she was subsequently released without charge, albeit on payment of a bribe and with what we know to be fairly standard reporting conditions in such circumstances from the many appeals with which we deal. The statement of the Sri Lankan authorities that failure to report is not a matter which leads to any risk of further detention seems to us simply a matter of common sense. Many Tamils were arrested and detained and then released on such conditions. The background evidence is that in the normal course after a short time such reporting conditions are dispensed with. It is simply a further extension to the accepted view that release implies a lack of any continuing interest on the part of the authorities however it came about.

16. Taking full account, as we say, of what is said in the UNHCR letter, there is no evidence before us capable of leading to a finding that there is a reasonable likelihood or real possibility that the appellant is currently of adverse interest to the Sri Lankan authorities or that she cannot safely be returned there. Accordingly, she fails to discharge the comparatively low burden upon her of demonstrating a current well-founded fear of persecution for a Refugee Convention reason in her home area or of treatment in breach of her protected human rights under Article 3 of the European Convention.

17. We have not considered Article 8 issues as they were not before us for the reasons explained at the beginning of this determination.

18. For the above reasons, on the grounds of appeal with which we are seized challenging the allowing by the Adjudicator of the appeal on asylum and Article 3 grounds, the appeal of the Secretary of State is allowed.

J Barnes
Vice President