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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> AN & SS (Tamils, Colombo, risk?) Sri Lanka CG [2008] UKAIT 00063 (10 June 2008) URL: https://www.bailii.org/uk/cases/UKIAT/2008/00063.html Cite as: [2008] UKAIT 00063, [2008] UKAIT 63 |
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AN & SS (Tamils – Colombo – risk?) Sri Lanka CG [2008] UKAIT 00063
ASYLUM AND IMMIGRATION TRIBUNAL
Date of hearing: 11th – 13th February 2008
Date Determination notified: 06 July 2008
Before
Senior Immigration Judge Gleeson
Senior Immigration Judge McKee
Mr A.P. Richardson, JP
Between
AN & SS |
APPELLANT |
and |
|
Secretary of State for the Home Department | RESPONDENT |
For the appellants : Mr Alasdair Mackenzie, instructed by Birnberg Peirce & Partners, for 'AN' ; Mr Peter Morris, likewise instructed by Birnberg Peirce & Partners, for 'SS'
For the respondent : Miss Jenni Richards, instructed by the Treasury Solicitor
DETERMINATION AND REASONS
Since the breakdown of the ceasefire, heightened security in the capital has restricted the operations there of the LTTE, who are focusing on 'high-profile' targets. The background evidence does not show that Tamils in Colombo who have stopped supporting the Tigers, or who support parties opposed to them, are at real risk of reprisals, absent some feature bringing them to prominence. The conclusion to that effect in PS (LTTE – internal flight – sufficiency of protection) Sri Lanka CG [2004] UKIAT 297, which this determination updates and supersedes, is thus affirmed.
There is no good evidence that the LTTE maintain a computerized database of their opponents, such that new arrivals in Colombo can be checked against it. Checks are, on the other hand, run on a computerized database by immigration officers when passengers arrive at Bandaranaike International Airport, or by members of the security forces when people are detained, but there is no good evidence to show that everyone who has in the past been detained and questioned about possible involvement with the LTTE is on that database. On the contrary, it is likely to contain the names only of those who are of serious interest to the authorities.
The twelve 'risk factors' listed in LP (LTTE area – Tamils – Colombo – risk?) Sri Lanka CG [2007] UKAIT 00076 can usefully be divided into risk factors per se, one or more of which are likely to make a person of adverse interest to the authorities, and 'background factors', which neither singly nor in combination are likely to create a real risk, but which in conjunction with risk factors per se will intensify the risk.
A failed asylum seeker who hails from the north or east of Sri Lanka and who has no relatives or friends to turn to in Colombo will generally be able to relocate there in safety and without undue harshness. Those arriving without their National Identity Card should be able to get a replacement without too much difficulty, while the great majority of those detained at checkpoints and in cordon-and-search operations are released within a short time. A generous support package is available for five years from the International Organisation for Migration to those who return voluntarily. Those who refuse to do so cannot pray in aid the prospect of being destitute in Colombo.
PR (medical facilities) Sri Lanka CG [2002] UKIAT 4269 is, owing to its antiquity, no longer to be treated as country guidance on the availability of medical treatment for returnees. The guidance in PS and LP, however, has been considered and approved by the European Court of Human Rights in NA v United Kingdom, handed down on 17th July 2008.
AN's claim
SS's claim
AN's current circumstances
Dr Smith's report
Dr Smith's oral evidence
Professor Good's report
Professor Good's oral evidence
Submissions for the Respondent
(1) Tamils are not per se at risk of serious harm from the Sri Lankan authorities in Colombo, although there are some twelve factors (not intended to be a check list) which may increase the risk.
(2) If a person is actively wanted by the police, e.g. by being on a 'Watched' or 'Wanted' list at Bandaranaike International Airport, there may be a risk of detention at the airport.
(3) Otherwise, the majority of failed returning asylum seekers are processed through the airport relatively quickly and with no difficulty beyond some possible harassment.
(4) While Tamils in Colombo are at risk of being stopped at a checkpoint or in cordon-and-search operations, or of being caught up in a raid upon the lodge where they are staying, this does not in general amount to more than harassment, and should not cause any lasting difficulty. But Tamils who have recently returned to Sri Lanka and have not yet renewed their identity documents will be subject to more investigation, and the risk factors in (1) may then come into play.
(5) Returning Tamils should be able to establish the fact of their recent return during the short period necessary for new identity documents to be procured.
(6) …
(7) The weight to be given to expert evidence and country background material depends upon the quality of the raw data from which it is drawn and the quality of the filtering process to which those data have been subjected.
There are about 250,000 Tamils in the Colombo area, out of a total population of roughly 2,250,000 (20.13).
There are an estimated 40,000 war widows in Sri Lanka, and as many as a quarter of all households in Jaffna are now female-headed. Women in Sri Lanka have traditionally enjoyed better levels of literacy, life expectancy and access to economic opportunities than in other parts of South Asia (23.01-23.02).
According to its website, the local NGO 'Home for Human Rights' has created a Women's Desk. "We provide social services and counselling for survivors of sexual and domestic violence. We have also organised self-help groups for single mothers in the Northern and Eastern provinces … " (23.26).
According to the Mental Health Policy for Sri Lanka, published by the Sri Lankan government in 2005, "Mental illness is extremely common. It has been estimated that some 376,000 Sri Lankans suffer from debilitating mental illnesses including bipolar illness, major depression and schizophrenia at any given time. … About 10% of the population is thought to suffer from other mental illness such as phobic states, obsessional disorders, somatoform disorders, mood disorders and other forms of delusional disorders." The documents notes that more than 90% of mental health services are concentrated in Colombo and a few other major urban centres, with treatment taking place mostly in large hospitals, such as the National Hospital in Colombo. "All the patients receiving mental health services from the government sector receive the services and drugs free of charge." There are, however, severe shortages of skilled mental health staff, with only 41 psychiatrists available for the whole country, a few psychologists, and no psychiatric nurses. On the other hand, "There are several important NGOs, including Sahanaya in Colombo" which "provide psychiatric assessment and treatment, psychological interventions, and rehabilitation for both individuals and families." The document fears that, in the wake of the tsunami on 26th December 2004, between 5% and 10% of those affected by it "are likely to develop a recognizable mental disorder." (26.13-26.16)
According to the Canadian High Commission in Colombo, "forged birth certificates can be obtained for as little as US$5, while genuine, but improperly issued, birth certificates can be acquired for as little as US$20 each. With these types of birth certificates, genuine NICs can be issued …" There are no security features in Sri Lankan birth certificates (32.07).
"A brief overview of the support provided by IOM includes smoothing the re-entry process by liaising with Sri Lankan immigration and capacity building with airport officials and staff prior to the return, and provision of a comprehensive package of support for five years after arrival. This includes provision of five years shelter guaranteed (a reflection of and necessitated by the difficult housing situation in Sri Lanka), assessing capacity for livelihood, competency and vocational training … IOM were aware of returnees not assisted by their program being arrested and harassed on or soon after arrival, particularly in cases where the returnee no longer holds a National Identity Card."
"The International Organisation for Migration (IOM) have advised the High Commission that whilst they monitor the persons who return from the UK under the Voluntary Assisted Return Programme (VARP) for up to 2 years, they do not monitor those who are forcibly returned. I was advised that even among the VARP returnees there were 2 cases in the last year where individuals have been arrested and detained. The first was a young Tamil male from Jaffna who was going through a reintegration programme in Colombo. Some six months after his return, he was stopped at a police checkpoint and detained, as he could provide no evidence of family in the capital. He was held at Boossa prison for one month before release, but is now back in the reintegration programme. The 2nd case also involved a Tamil male who was in the reintegration programme in Colombo. The circumstances of his arrest were somewhat different, in that he had travelled to India on forged documentation and was apprehended by CID on his return to Colombo and detained. It could therefore be argued that there might have indeed been justification for this.
"IOM have also become involved with returnees who have forcibly been removed from the UK, providing post-arrival assistance. Ostensibly, this is to provide travel assistance to a chosen address. At the time of writing, IOM had been informed of 32 potential removals under this arrangement, of which they received only 8 returnees. Whilst a majority of the ones that did not arrive undoubtedly earned last-minute reprieves in the UK by one means or another, IOM could not be 100% certain that some were not detained on arrival at Colombo Airport."
"approximately 1500 persons have been arrested at street checkpoints in Colombo recently and most of them were released after 2-3 days. Of the rest about 103 were sent to Boossa detention centre near Galle and a few were kept in [the] Terrorists Investigation Department (TID) office at Chaiyttaya Road, Colombo 1. Most have been released after investigation as ordered by the Supreme Court in response to a Fundamental Rights Case filed by the Ceylon Workers Congress. We understand the general population of prisoners detained at Boossa detention camp and TID office in Colombo is about 550 at present."
(i) Tamil ethnicity;
(ii) Previous record as a suspected or actual LTTE member or supporter;
(iii) Previous criminal record and/or outstanding arrest warrant;
(iv) Bail/jumping and/or escaping from custody;
(v) Having signed a confession or similar document;
(vi) Having been asked by the security forces to become an informer;
(vii) The presence of scarring;
(viii) Returned from London or other centre of LTTE activity or fund-raising;
(ix) Illegal departure from Sri Lanka;
(x) Lack of ID card or other documentation;
(xi) Having made an asylum claim abroad; and
(xii) Having relatives in the LTTE.
Submissions for Miss AN
• Serious mental health problems making one behave suspiciously under interrogation [and Miss Richards did not deny that AN would become distressed in those circumstances];
• Living in Colombo but originating in the north or east of Sri Lanka [which would not be a matter of concern to the authorities at the airport, but would concern those manning the checkpoints or carrying out cordon-and-search operations].
(1) prominent present or past supporters of Tamil political parties which have aligned themselves with the government against the LTTE ;
(2) LTTE defectors (particularly those who have aligned themselves with the Sri Lankan Army military intelligence units); and
(3) Those closely associated with the internal LTTE schism as supporters of Colonel Karuna.
Reply for the respondent
Reply for Miss AN
The 'Exclusion Clause'
(a) there is insufficient evidence that he had prior knowledge of the purpose of the combatants that he taxied;
(b) it does not appear that he had any role in planning or forming an intent to carry out the acts in question;
(c) he was not a driver exclusively for this type of operation; and
(d) he did not personally fire at or kill the MPs.
Further evidence and submissions
• It is extremely uncommon to find unaccompanied women living by themselves. War widows are to be distinguished from unmarried mothers, who are regarded as "immoral" women.
• While there is one women's shelter in Colombo providing accommodation for victims of domestic violence, the appellant does not come within that category. There is no in fact no institution, government or private, that can offer the appellant any protection or assistance as a single mother without family support and with mental health problems.
• There is a series of checkpoints along the road from Bandaranaike International Airport to Colombo, which Miss AN would have difficulty in negotiating without a National Identity Card. This would also be a problem in Colombo itself.
• Tamil women have fallen under suspicion because of the female suicide bombers who have carried out missions in Colombo, such as the attempt to assassinate the EDPD leader, Devananda, in November 2007 and the blast at a railway station in January 2008.
• The LTTE's intelligence and surveillance is so thorough that, whether or not they have a computer database of their opponents, they will know all about Miss AN's detention in 1998, her subsequent work for the EPDP and her relationship with an EPDP cadre.
• In 2004 Ms Abeysekera personally handled a case in which a woman with a burn scar was held at a police station on the road from the airport to Colombo on the basis that she could have got the scar during LTTE training.
(i) a report from Human Rights Watch ('HRW'), Recurring Nightmare – State Responsibility for "Disappearances" and Abductions in Sri Lanka, which was published just after the hearing;
(ii) the fact that international observers have just pulled out of Sri Lanka, now that the ceasefire is officially at an end; and
(iii) the letter of 23rd October 2007 from the European Court of Human Rights (publicized in the ILPA mailing) adverting to the application of Rule 39 to Sri Lankan cases pending at Strasbourg, and requesting Her Majesty's Government to defer the removal to Sri Lanka of any Tamil asylum seekers, until there has been a substantive ruling by the Court on the safety of return.
(i) Tamil ethnicity;
(ii) …
(iii) …
(iv) …
(v) …
(vi) …
(vii) The presence of scarring;
(viii) Return from London;
(ix) Illegal departure from Sri Lanka;
(x) Lack of ID card (unless it goes beyond the period in which the individual might be expected to obtain an ID card after return);
(xi) Having made an asylum claim abroad;
(xii) …
(ii) previous record as a suspected or actual LTTE member or supporter;
(iii) previous criminal record and/or outstanding arrest warrant;
(iv) bail jumping and/or escaping from custody;
(v) having signed a confession or similar document;
(vi) having been asked by the security forces to become an informer;
…
(xii) having relatives in the LTTE.
"The test therefore, as I see it, is whether there are factors in an individual case, one or more, which might indicate that the authorities would regard the individual as someone who may well have been involved with the LTTE in a sufficiently significant fashion to warrant his detention or interrogation."
Comments on procedure
Risk from the LTTE
"As we have already observed, those whom the LTTE has on the objective evidence targeted in Colombo since the ceasefire have all been high profile opposition activists, or those whom they would see as renegades or traitors to the LTTE. Whether it could be successfully argued that even those of so high a profile would not be provided with a sufficiency of protection in Colombo in the Horvath sense, may be doubted, but what seems to us quite clear on the background evidence is that there is no arguable basis for saying that the Sri Lankan state does not provide a sufficiency of protection to the generality of Tamils having a localised fear of the LTTE in their home area who do not reach a similar high profile."
Risk from the Sri Lankan authorities
"If the appellant asserts that he would be at risk for that reason, then he or she will need to show why it is he or she cannot obtain an identity document within a reasonable time of returning to Sri Lanka. They would not be expected to carry an identity card at the airport if they are being returned on temporary documentation obtained in the United Kingdom. For a short time, while new documents are obtained, a returnee should be able to establish the fact of his recent return, with little difficulty."
Internal relocation to Colombo
Summary of general conclusions
RISK IN COLOMBO FROM THE TAMIL TIGERS
(a) Although PS (LTTE – internal flight – sufficiency of protection) CG [2004] UKIAT 297 is now out of date in respect of the background evidence upon which it relied, we make the same general assessment of the risk from the LTTE to failed asylum seekers in Colombo, namely that there is no real risk to those who are not "high profile opposition activists, or those whom they would see as renegades or traitors to the LTTE."
(b) The background evidence indicates that, with tighter security in Colombo since the breakdown of the ceasefire, the operating capacity of the LTTE has been restricted, and they are concentrating their attacks upon individuals with a high political or military profile, as well as upon members of the security forces generally and upon military installations, and to some extent upon civilian infrastructure.
(c) There is scarcely any evidence that low-level opponents of the LTTE or low-level supporters who have left their ranks have been targeted in Colombo since October 2004.
(d) There is no solid evidence that the LTTE maintain a computerized database of opponents and defectors, against which a check may be run when a person comes to their notice.
RISK IN COLOMBO FROM THE SECURITY FORCES
(e) The country guidance in LP (LTTE area – Tamils – Colombo – risk?) CG [2007] UKAIT 00076 remains valid, and we would endorse the suggestion made by Collins J that the twelve 'risk factors' listed at paragraph 238 of that determination may usefully be divided into risk factors per se and 'background factors' which do not in themselves create a real risk to failed asylum seekers in Colombo, but which may exacerbate the situation when they combine with risk factors per se.
(f) The National Intelligence Bureau in Sri Lanka maintains a computerized database of persons who are thought to pose a threat, while immigration officers at Bandaranaike International Airport use a computer system which can flag up whether a newly-arrived passenger is on the 'Wanted List' or 'Stop List'. The CID at the airport will be alerted when this happens. But there is no firm evidence to support the contention that everyone who has ever been detained by the police or army is likely to be on the database.
(g) Failed asylum seekers who arrive in Colombo without a National Identity Card should be able to get a new one on production of a birth certificate, which is usually easy to obtain. If an NIC cannot be issued, the UNHCR will issue a substitute which is generally acceptable. Those newly arrived in Colombo who do not yet have an ID card should, if questioned about their ID, be able to establish that they have recently come from abroad.
(h) Roadside checkpoints, cordon-and-search operations and raids upon 'lodges' do not in general create a real risk of persecution or serious ill-treatment. Most of those held are released within a fairly short time, and the Supreme Court has intervened to curb the excesses of the security forces.
(i) Abductions and kidnappings have been carried out by a variety of groups, mostly pro-government militias and criminal gangs, but the scale of these disappearances does not create a real risk to failed asylum seekers arriving in Colombo.
INTERNAL RELOCATION TO COLOMBO
(j) For a person at risk in his home area but not, in accordance with (a)-(i), at risk in Colombo, relocation to the capital will not in general be unduly harsh. Young Tamil men are particularly likely to be stopped at checkpoints or rounded up in cordon-and-search operations or in raids upon 'lodges', but most detainees are released within a fairly short time. Abductions and kidnappings have tended to focus on businessmen and those about to leave the country, although there is recent evidence of LTTE supporters being abducted by pro-government paramilitaries.
(k) Failed asylum seekers with no relatives or friends to turn to in Colombo may be expected to avail themselves of the assistance afforded by the International Organisation for Migration, which provides accommodation and the necessities of life for voluntary returnees. Other NGOs also offer support, particularly to women.
(l) For returnees with mental health problems, psychotropic medication is freely available in Colombo, which also has the bulk of the psychiatric facilities available in Sri Lanka. Most of the practitioners being Sinhalese, there may be linguistic and cultural barriers for Tamils with serious psychiatric disorders. But mental health problems are widespread in Sri Lanka.
Conclusion in these appeals
DECISION
The appeal of AN is dismissed on asylum, humanitarian protection and human rights grounds.
The appeal of SS is dismissed on asylum and humanitarian protection grounds, but is allowed on human rights grounds.
Richard McKee
10th June 2008