The decision

Heard at Field House

RS (Well Founded Fear – LTTE- Exceptional Case?) Sri Lanka [2004] UKIAT 00163
On 5 April 2004

Dictated 5 April 2004


Date Determination notified:

......26th May 2004..........


Miss K Eshun, Vice President
Mr P S Aujla
Mrs L R Schmitt




The Secretary of State for the Home Department


For the appellant: Mr P Costello, Counsel instructed by Tony Purton, Solicitors
For the respondent: Mr D Saville, Home Office Presenting Officer


1. The appellant, a citizen of Sri Lanka, appeals with leave of the Tribunal against the determination of an Adjudicator (Dr A A Majid) dismissing his appeal against the decision of the respondent made on 30 January 2003 to refuse him leave to enter and asylum.

2. The appellant’s immigration history is that he left Sri Lanka airport with the help of an agent on 30 July 1997 or 1998 and travelled to the Ukraine where he spent a week or two. He then claims to have travelled by road to Germany where he claimed asylum under arrest. He claims to have been refused asylum in Germany and after six months at a camp was taken by another agent by road through France and claimed asylum at Dover upon arrival on 6 January 1999.

3. The basis of his claim is that in 1994 he became involved with the LTTE, distributing leaflets and attending meetings. In 1995 he worked for them full time recruiting members, helping the injured and collecting and providing food. He did not join the LTTE military due to his health. He claims that after the army took control of Jaffna he stayed in the area collecting information about other Tamil groups and army movements which he would pass to the LTTE. In the early part of July 1997 the army raided his house, harassing his father. On 25 July 1997 he fled the area and was arrested by the army on his way to Vavuniya. The army detained him for six months during which time they ill-treated, beat and tortured him. During an attack on the prison camp by the LTTE on 9 January 1998, he managed to escape and re-joined the LTTE in Vanni. Despite their demands he continued to refuse to join the LTTE military but he helped the LTTE by digging bunkers. He fled from the LTTE in July 1998 and contacted his uncle in Vavuniya who arranged with the help of an agent for him to leave the country.

4. The appellant fears persecution from the Sri Lankan authorities because of his membership of the LTTE and also fears the LTTE because he claimed to have left the organisation without gaining permission.

5. The Adjudicator accepted that the appellant was persecuted. He accepted that the appellant was detained in the army camp from which he escaped. However, having reviewed all of the objective evidence before him, the Adjudicator was not persuaded that a person with the appellant’s profile was likely to face persecution contrary to the 1951 Convention or the 1950 European Convention if he is returned to Sri Lanka.

6. The grounds of appeal argued that the Adjudicator failed to make any finding as to whether the appellant was an exceptional case within Jeyachandran. In particular they argued that as the appellant had escaped from custody, it could mean that he was wanted by the authorities. It was also argued in the grounds that the Adjudicator did not apply the test as set out by the Court of Appeal in the case of Selvaratnam, that is

“whether the case of the appellant is an exceptional case as a person likely to be of interest to the Sri Lankan authorities and so likely to be detained, it being conceded that once he is detained, there is a substantial risk of persecution.”

It was further argued in the grounds that the Adjudicator placed no weight on the evidence set out in the current objective evidence that once a person is detained by the authorities, he is at danger of being tortured. That the Adjudicator had not given any weight or sufficient weight to the most current objective evidence that violence was continuing in Sri Lanka, that the LTTE had pulled out of the peace talks and had refused requests to return. Leave to appeal to the Tribunal was granted on these grounds.

7. Leave to appeal to the Tribunal was refused in respect of the argument that the Adjudicator at no stage of the determination addressed the issue or made a finding regarding the appellant’s fear of persecution by the LTTE if returned to Sri Lanka. Counsel renewed his application for leave to be granted on this issue and the Tribunal granted permission because indeed the Adjudicator had failed to address this issue or make any finding in respect of it.

8. Counsel argued that, in his opinion, the appellant is an exceptional case because of his lengthy detention and credible escape. Should the appellant ever come before the authorities again his previous arrest will come to light.

9. Counsel argued that on his return to the airport in Sri Lanka the appellant will be questioned by the authorities if he is not waved through. He will be asked routine questions such as why he left Sri Lanka and whether he was arrested and detained by the authorities in the past. The appellant will be obliged to tell the truth and that is when his previous arrest and detention will come to light. It will then be open to the authorities whether to detain him properly or return him to army barracks. It is at this stage that the appellant will then be persecuted for his past involvement with the LTTE and for escaping from army custody. It is the combination of these factors that makes the appellant an exceptional case and brings him within the Jeyachandran and Selvaratnam exception.

10. Having been granted permission to argue the fact that the Adjudicator failed to make any finding on the appellant’s fear of the LTTE, counsel however was of the view that this part of the appellant’s claim could not succeed. This was because of the High Court’s decision in Oppilamani. The High Court stated at paragraph 44 that it could not be said without background information that there was an insufficiency of state protection against risk of ill-treatment by the LTTE.

11. Mr Saville agreed that the Adjudicator did not make reference to Jeyachandran or Selvaratnam. Notwithstanding this he said that the Adjudicator would have reached the same outcome had he had regard to the test in Selvaratnam and to Jeyachandran.

12. Mr Saville said that the issue is not whether the appellant will face questioning as to why he left Sri Lanka, but whether there is the real risk of the authorities taking interest in him and taking him into custody. He referred us to the case of S in which the Tribunal at paragraph 12 held that there was no valid reason why, as a general proposition, all escapees should now be at risk, especially if they were in detention only as a consequence of low level activities for the LTTE in the past, and their records will reflect this.

13. Mr Saville argued that the appellant’s detention was six years ago and took place during the conflict. Although the appellant was detained on suspicion of involvement with the LTTE, by his own evidence, his activities were at a low level. He did not make any confession to the authorities as Selvaratnam had done. He said that the army took his photograph and fingerprints. In the case of P the Tribunal held at paragraph 15 that there was no evidence that the Sri Lankan army maintained computerised or manual records of those detained by them, especially if the circumstances suggested that the detention was not carried out in accordance with lawful practice. There was also no evidence that the Sri Lankan army provided that information to the CID. In the light of P Mr Saville said that evidence of the appellant’s arrest by the army would not be with the CID authorities at the airport. Therefore the absence of such a record will not increase the risk of ill-treatment of the appellant. Even if the authorities at the airport become aware that the appellant escaped, the fact is that the escape occurred at the peak of the civil war and therefore he would not now be of interest to the authorities.

14. As regards the appellant’s fear of the LTTE, Mr Saville referred us to Oppilamani. The High Court in Oppilamani had been referred to a report from the Human Rights Watch of 7 August 2003 referring to the killing a police inspector by unidentified perpetrators on 18 March 2003. The High Court found that the situation relating to the police officer was markedly different to that of Oppilamani, accepting the accuracy and truth of her account. In spite of what the objective material had to say about the killing of the police inspector, the High Court came to the conclusion that no Adjudicator, and which by reference Mr Saville also said included Tribunal, could properly on the basis of the information before the High Court conclude that there was an insufficiency of state protection.

15. In the light of Oppilamani Mr Saville said that it has been far from proved that there will be a real risk of persecution of the appellant by the LTTE. The appellant refused to fight for them during the civil war. He would not be at risk from the LTTE even in LTTE areas.

16. In reply counsel submitted that it would be dangerous to interpret S as saying that all escapees are not at risk of persecution. The Tribunal did say that each case must turn on its own facts. The Tribunal considered the fact that the army was prepared to release S on payment of the customary bribe. Had they any real interest in holding him, they would not have released him even on payment of a bribe. Counsel said that the case of V was different because V failed to report to the authorities following his release on bail. He said that P was also different from this case in that P was detained for three days whereas this appellant was detained for six months, received horrific torture and escaped after the LTTE attacked the army camp. It is a combination of these facts that will put the appellant at risk of detention and ill-treatment.

17. The Tribunal then reserved its determination in order to consider all the evidence.

18. There are two issues before the Tribunal. Firstly whether the appellant is an exceptional case within Jeyachandran. Secondly, whether he has a well-founded fear of persecution from the LTTE.

19. We will take the second issue first. In the light of the High Court’s decision in Oppilamani, we are of the view that counsel took the right approach in conceding that the appellant’s fear of the LTTE could not succeed.
20. We now look at whether the appellant is an exceptional case within Jeyachandran, having escaped from army custody. The test as to whether an appellant is an exceptional case is as stated in Selvaratnam; that is whether a person is an exceptional as a person likely to be of interest to the authorities and so likely to be detained, it being conceded that, once he is detained, there is a substantial risk of persecution.

21. The appellant’s arrest and detention occurred in 1997, some seven years ago. His detention lasted until 9 January 1998, a period of six months. He managed to escape following an attack by the LTTE on the army camp where he was being held. His escape occurred some six years ago. His arrest, detention and escape all took place during the period of the civil war. If the appellant became a wanted man following his escape, we do not believe that in the circumstances currently prevailing in Sri Lanka that he is a wanted man today.

22. However, we have no evidence that following his escape the appellant became a wanted man. We have no evidence from the appellant that the authorities took active steps to pursue him or evidence that the authorities have a record of people such as the appellant, who escaped as a result of attacks on army detention camps by the LTTE.

23. The appellant said that the army took photographs of him and fingerprinted him. There is no objective evidence to say that such records are transferred to the authorities at the airport. We rely on the case of P in which the Tribunal held that there was no evidence that the Sri Lankan army maintain computerised or manual records of those detained by them and no evidence that the Sri Lankan army provides that information to the CID. We therefore doubt that there would be a record of the appellant’s arrest and detention and escape from an army camp. According to the objective evidence, on arrival in Sri Lanka it is the computerised police records that are consulted. As the appellant did not come into contact with the police, it is reasonable to say that the police will not have any record of him. Therefore there is no reason why the appellant should not be waved through the airport on his arrival in Sri Lanka.

24. Counsel argued that the appellant, following routine questions, will convict himself by answering truthfully that he was arrested and detained in the past and escaped. Whilst we do not find that the decision in S holds that all escapees would not now be at risk of persecution, we nevertheless adopt the reasoning in S to the effect that because the appellant was detained on account of his low level activities for the LTTE, there is no valid reason why his past circumstances should put him at risk in the future. By the appellant’s own evidence he was not a combatant. He was fleeing from his area in Jaffna on his way to Vavuniya when he was arrested by the army. It was accepted by the Adjudicator that he was ill-treated, beaten and tortured. Whilst we do not condone the ill-treatment he was subjected to, the ill-treatment occurred during the period of the civil war. He did not claim to have made a confession as was the case in Selvaratnam. We accept that he was detained for six months, longer than P was, and was not released on the payment of the customary bribe as was the case in S. Nevertheless, the circumstances in Sri Lanka have changed significantly. There is no reason for this appellant, given his particular circumstances, to be at risk of persecution by the authorities on his return to Sri Lanka.

25. We find on the evidence that the appellant’s particular circumstances do not make him an exceptional case. Applying the test in Selvaratnam we do not find that this appellant is likely to be of interest to the authorities on account of his past were he to be removed to Sri Lanka. Had the Adjudicator looked at Jeyachandran and applied the test in Selvaratnam, we find that he would have come to the same conclusion, which is that there is no reasonable likelihood that this appellant will be at risk of persecution in breach of the 1951 Convention or ill-treatment in breach of the 1950 Convention. Accordingly, his appeal is dismissed.

Miss K Eshun
Vice President