[New search]
[Contents list]
[Context]
[View without highlighting]
[Printable RTF version]
[Help]
FIFTH
SECTION
CASE OF T.N. v. DENMARK
(Application
no. 20594/08)
JUDGMENT
STRASBOURG
20 January
2011
This
judgment will become final in the circumstances set out in
Article 44 § 2 of the Convention. It may be
subject to editorial revision.
In the case of T.N. v. Denmark,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Renate
Jaeger,
President,
Peer
Lorenzen,
Karel
Jungwiert,
Rait
Maruste,
Mark
Villiger,
Isabelle
Berro-Lefèvre,
Zdravka
Kalaydjieva,
judges,
and
Claudia Westerdiek, Section
Registrar,
Having
deliberated in private on 14 December 2010,
Delivers
the following judgment, which was adopted on that date.
PROCEDURE
- The
case originated in an application (no. 20594/08) against the Kingdom
of Denmark lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Sri Lankan national, Mrs T.N. (“the
applicant”), on 28 April 2008. The acting
President of the Chamber decided to grant the applicant anonymity
(Rule 47 § 3 of the Rules of Court).
- The
applicant was represented by Mr Gunnar Homann, a lawyer practising in
Copenhagen. The Danish Government (“the Government”) were
represented by their Agent, Mr Thomas Winkler, of the Ministry of
Foreign Affairs, and their Co-agent, Mrs Nina Holst-Christensen, of
the Ministry of Justice.
- The
applicant alleged that an implementation of the deportation order to
return her to Sri Lanka would be in violation of Articles 2, 3 and 8
of the Convention.
- On
28 April 2008, the acting President of the Chamber decided to apply
Rule 39 of the Rules of Court, indicating to the Government that it
was in the interests of the parties and the proper conduct of the
proceedings that the applicant should not be expelled to Sri Lanka
pending the Court’s decision. On 29 August 2008 the acting
President decided to give notice of the application to the Government
and granted it priority under Rule 41 of the Rules of Court.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. The applicant’s domestic proceedings
- The
applicant was born in 1972 in the vicinity of Jaffna in the north of
Sri Lanka. She currently lives in Ellebæk, Denmark. She is of
Tamil ethnicity and Hindu.
- The
applicant’s parents died in 1978 and 1983.
- On
27 March 2004, she married a Sri Lankan man who had lived in Denmark
since 1986 and who returned to Colombo to attend the wedding.
- On
30 January 2005, under the rules on family reunification, the Aliens
Authorities (Udlændingestyrelsen) granted the applicant
a residence permit to join her husband in Denmark. Accordingly, on 16
March 2005 the applicant entered the country on a valid passport
issued on 11 February 2004.
- Less
than a year later, on 31 January 2006, the Aliens Authorities decided
to withdraw the applicant’s residence permit on the ground that
the applicant and her husband had separated. This decision was
confirmed by the Ministry of Refugee, Immigration and Integration
Affairs (Ministeriet for Flygtninge, Indvandrere og Integration)
on 6 October 2006 and the applicant was ordered to leave Denmark no
later than 9 November 2006. The applicant did not challenge this
decision before the ordinary courts.
- On
1 November 2006 the applicant applied for asylum in Denmark. In
support of her application she submitted that her marriage had been
arranged, and that once she had arrived in Denmark her husband had
taken her passport and been abusive by beating her and depriving her
of food. After four months, she had fled to a women’s shelter.
By a judgment of 17 October 2005 her husband was convicted of
abuse and sentenced to 40 days’ imprisonment. Her passport
had been returned. Subsequently, on one occasion when she had seen
him on the street, he had threatened to kill her. He came from a
wealthy family in Colombo with good connections to the authorities
and the military and she was afraid that he had told the Sri Lankan
authorities about her five years between 1988 and 1994 as a soldier
for the Liberation Tigers of Tamil Eelam,
hereafter the LTTE. She had participated and been injured in
battle. Having contracted malaria, in 1995 she had had to leave the
organisation. Between 1995 and 1999, she had moved around because of
the instability in the country. In 1999 she had settled in Colombo
where she had worked as a carer for an elderly gentleman. In January
2004 she had met her husband and agreed to marry him to secure her
future. She had a sister in Sri Lanka but had heard no news from her
since the tsunami in 2004. She had no other relatives in her home
country.
- By
a judgment of 21 June 2007 the applicant was convicted for two
incidents of malicious damage to her husband’s car and flat,
and sentenced to six day fines.
- On
28 June 2007 the Aliens Authorities rejected her application for
asylum. It found that the grounds invoked by the applicant were not
such that she would face a real risk of persecution or ill-treatment
if returned to Sri Lanka.
- On
appeal to the Refugee Appeals Board (Flygtningenævnet),
the applicant explained, among other things, that
her mother died when she was five years old and her father died when
she was eight years old. After her father’s death she had been
sent to a boarding school. She could only stay at school until she
turned 16. She did not have any relatives or others with whom she
could stay. When she was 16 years of age, she had joined the LTTE.
She had been in combat on five occasions when she was between 16 and
18 years old and had been hit by shell splinters. Consequently she
had a small shell splinter under the skin by her left eye and part of
one finger was missing. The LTTE had accepted that she leave the
organisation after she contracted malaria. She married on 27 March
2004, in Colombo. Her husband was an ethnic Tamil resident in
Denmark. Prior to her entry into Denmark she became pregnant. Her
spouse’s family took her to a clinic and forced her to have an
illegal abortion. Her spouse’s family treated her very badly
prior to her entry into Denmark. Her spouse was an alcoholic and beat
her every day. After she left her spouse, he had threatened to have
her sent back to Sri Lanka where she would end up in the street. If
she were to return to her country of origin she feared her former
spouse’s family who lived in Colombo. She had neither family
members nor a place to stay in Sri Lanka. Her former spouse’s
family had a good relationship with the Sri Lankan army. She also
feared the authorities, should she return to Sri Lanka, as persons
who had been attached to the LTTE were not allowed to leave the
country without the permission of the authorities. She feared that
her former spouse would inform the Sri Lankan authorities about her
return and that she would be arrested at the airport as a result. On
the basis of her scars the authorities would be able to conclude that
she had been attached to the LTTE.
- By
a decision of 13 August 2007, the Refugee Appeals Board refused to
grant the applicant asylum. It first noted that the applicant
had arrived in Denmark on a passport which was still valid and that
she had had no problems with the authorities before she left Sri
Lanka.
- The
fact that she had been a member of the LTTE at a very young age could
not in itself justify the granting of asylum. Moreover, she had not
held any prominent position in the organisation and her attachment
to the LTTE ended after she had developed malaria.
She had had no problems with the LTTE since she left in
1995 and she had not in any way attracted
attention to herself.
16. Finally,
the applicant’s problems with her former husband were of a
private nature and there was no indication that the Sri Lankan
authorities would be unable or unwilling to help and protect her if
necessary.
- In
conclusion, the Refugee Board therefore found that
on her return to Sri Lanka she would not run any particular risk of
persecution within the scope of section 7(1) of the Aliens Act, or
any real risk of outrages within the scope of section 7(2) of the
Aliens Act.
- On
6 November 2007 the Refugee Appeals Board rejected the applicant’s
request to reconsider the case finding that no new
essential information or aspects had been added to the case. The fact
that on 21 October 2007 the UNHCR had requested the Refugee
Appeals Board to suspend the return of Tamils from northern and
eastern Sri Lanka had not given rise to a general suspension of the
return of ethnic Tamils to northern and eastern Sri Lanka, and the
Board did not find either that it should give rise to a postponement
of the time-limit for the applicant.
19. By
a court order of 16 November 2007 the applicant divorced. It appears
that shortly thereafter the applicant married a Singhalese man
who lived in Denmark. Their daughter was born on 5 September 2008.
- In
the meantime, on 2 April 2008, the applicant again
requested a reopening of her asylum case. In support she referred to
the fact, inter alia, that
the Sri Lankan authorities had issued a birth certificate to her in
October 2007. Her friends had arranged for the certificate to be
issued and had subsequently sent it to her in Denmark. The
authorities in Sri Lanka were thus aware of what she had told the
Danish authorities in connection with her asylum application. She
also referred to the fact that she had contracted a Hindu marriage
with a Singhalese man during her residence in Denmark. She finally
referred to her pregnancy and to having been hospitalised in Norway
on 9 or 10 March 2008 due to dehydration. By a letter of 9 April 2008
she added that she had fled the LTTE in 2002 and hidden with her
future husband’s brother in Vavuniya. From there she had gone
to Colombo to stay with her future husband’s sister.
Subsequently, she heard that on several occasions members of the LTTE
had approached her brother-in-law in order to find her. Furthermore,
the LTTE had detained one of her brother-in-law’s children for
three months. She had only learned about this later on. Finally, her
former spouse refused to return her national identity papers to her;
instead, he had passed her identity card to the Sri Lankan army.
She had received this information recently. Consequently, the
military was waiting to arrest her in Sri Lanka where she was wanted.
If she succeeded in going to Vanni she would be arrested by the LTTE.
21. On
14 April 2008, the Refugee Appeals Board again refused to reopen the
asylum case, finding that no essential new information or aspects had
been added in relation to the information which had been available
when the case was considered by the Board in the first place. The
Refugee Appeal Board did not find it probable that the Sri Lankan
authorities had become acquainted with the applicant’s
statements given to the Danish immigration authorities since that
information was private and covered by the regulations of the
Criminal Code (straffeloven) concerning
the professional secrecy of public authorities. The fact that the
applicant was pregnant and had married in Denmark had no bearing on
her asylum case and therefore could not lead to a different
evaluation of the matter. Her statement about recently having learnt
that her former brother-in-law had been approached by the LTTE seemed
unreliable, notably because during the original asylum case hearing
before the Refugee Appeals Board she had stated that she left the
LTTE because she had developed malaria. Consequently, this “new”
information could not be taken into account. The Refugee Appeals
Board could not take into account either the statement that her
former spouse had passed on her identity card to the Sri Lankan
authorities as this information had been submitted at a very late
date and seemed fabricated for the occasion. Her problems with her
former spouse were of a private law nature and thus could not lead to
a different evaluation of her asylum case.
- By
letter of 25 April 2008, once more the applicant requested that her
case be reopened and submitted in support thereof a letter from the
European Court of Human Rights to the United Kingdom dated 23 October
2007 requesting the latter to suspend the return of all Tamils to Sri
Lanka, and an e-mail of 16 April 2008 concerning the suspension of
deportation cases in Switzerland on the basis of the above-mentioned
letter.
- On
28 April 2008, the Refugee Appeals Board again refused to reopen the
asylum case. It stated that it was acquainted with the letter of
23 October 2007 but found that the letter alone could not bring
about a general suspension of cases concerning Sri Lankan nationals
of Tamil ethnicity. Nevertheless, the letter and the UNHCR’s
recommendations formed part of the background material on Sri Lanka
which was available to the Refugee Appeals Board and which was a
constituent part of the basis for the Board’s decisions.
B. Subsequent
events before the Court and domestic proceedings
- On
28 April 2008, upon the applicant’s request, the Court of Human
Rights decided to apply Rule 39 of the Rules of Court, indicating to
the Government that it was in the interests of the parties and the
proper conduct of the proceedings that the applicant should not be
expelled to Sri Lanka pending the Court’s decision.
- On
10 June 2008, the Ministry of Refugee, Immigration and Integration
Affairs refused the applicant’s application for a residence
permit on humanitarian grounds under section 9b(1) of the Aliens Act.
- On
11 February 2009 the applicant’s
passport expired.
- On
29 April 2009, referring to the deterioration in the security
situation in Sri Lanka and UNHCR Eligibility Guidelines for Assessing
the international Protection Needs of Asylum-Seekers from Sri Lanka
from April 2009, the applicant requested that the Refugee Appeals
Board reopen her asylum case.
- On
11 June 2009, anew, the Refugee Appeals
Board refused her request, concluding as follows:
“... In April 2009, the Refugee
Appeals Board received the UNHCR Eligibility Guidelines for Assessing
the International Protection Needs of Asylum-Seekers from Sri Lanka
from April 2009, which have been included in the background material
of the Refugee Appeals Board. In addition, the Refugee Appeals Board
has subsequently added the following reports to its background
material: Human Rights Watch, War on the Displaced, Sri Lankan Army
and LTTE, Abuses against Civilians in the Vanni, February 2009;
United Kingdom, Home Office, UK Border Agency, Country of Origin
Information Report -
Sri Lanka, 18 February 2009;
U.S. Department of State, 2008 Human Rights Report: Sri Lanka, 25
February 2009; United Kingdom, Home Office, UK Border Agency,
Operational Guidance Note -
Sri Lanka, April 2009; and
United Kingdom, Home Office, UK Border Agency, Operational Guidance
Note, April 2009.
It should be noted in that respect that the Refugee
Appeals Board makes its decisions in asylum proceedings upon a
concrete and individual assessment of the individual asylum-seeker’s
statement about his asylum motive compared with the background
information available at any time about the conditions in the
asylum-seeker’s country of origin. It should also be noted
that, as appears from NA. v. the United Kingdom, no. 25904/07, §
127, the Refugee Appeals Board places substantial emphasis on the
information of the UNHCR Position Papers about the situation in
Sri Lanka. The Position Papers are necessarily broadly phrased
and contain general descriptions about the varying risks for each of
Sri Lanka’s ethnic groups. The views expressed in the Position
Papers cannot in themselves be conclusive evidence for the assessment
by the national authorities or the European Court of Human Rights of
the risk for ethnic Tamils returning to Sri Lanka.
The Refugee Appeals Board observes
that the general conditions for ethnic Tamils from northern Sri
Lanka, including single women, do not in themselves justify asylum.
It should be noted in that connection that the European Court of
Human Rights stated in NA.
v. the United Kingdom (quoted above,
§ 125 that, in the assessment
of the Court, the deterioration in the security situation and the
increase in human rights violations in Sri Lanka did not create a
general risk to all Tamils returning to Sri Lanka. The Court further
observed in § 128 that both the assessment of the risk to ethnic
Tamils of certain profiles and the assessment of whether individual
acts of harassment would cumulatively amount to a serious violation
of human rights could only be made on an individual basis.
Your statement to the effect that
your client may risk having an explanatory problem upon her arrival
at Colombo as a consequence of the scars acquired by her in
connection with military operations against the government forces
does not lead to a revised assessment of the case. In this respect,
the Refugee Appeals Board refers to the Danish Government’s
written observations of 5 January 2009 stating that your client had
not been detained or subjected to outrages or to other acts contrary
to Article 3 of the Convention before her departure as opposed to the
applicant in NA. v. the United Kingdom.
Nor had your client been recorded by
the authorities in connection with detention, or photographed,
fingerprinted or anything else so that the authorities might be
presumed to know of her, and therefore your client could not be
considered to be at risk of being subjected to outrages or other acts
contrary to Article 3 of the Convention upon her arrival at
Colombo Airport in the same way as the applicant in the above
judgment.
Nor does your statement about your
client’s affiliation with the LTTE until 2002 and not, as
originally stated, until 1994, when your client left the LTTE because
she contracted malaria, lead to a revised assessment of the case. It
should be noted in that connection that the new information appeared
at a very late stage of the asylum proceedings after your client had
been refused asylum, having had several opportunities to provide this
information without having done so. The Refugee Appeals Board still
finds that there is no reasonable explanation for her changed
statement.
In that connection, the Refugee Appeals Board has also
placed some emphasis on the fact that your client only applied for
asylum in Denmark almost one year and eight months after her entry
into Denmark and only after her residence permit under the family
reunification rules had been revoked and she therefore had to leave
Denmark.
Concerning your statement about your
client suspecting her former spouse or his family of having disclosed
information to the Sri Lankan authorities about her, it should be
noted that the Refugee Appeals Board finds that it has not been
rendered probable that the Sri Lankan authorities have gained
knowledge of your client’s statements
to the Danish immigration authorities. In this respect, it should be
noted that the information given by your client in connection with
the asylum proceedings is comprised by the rules of the Danish
Criminal Code on the duty of confidentiality of public authorities.
The fact that your client was married at a religious
ceremony in Denmark and has given birth to a daughter is not relevant
under asylum law and thus does not lead to a revised assessment of
the case either.
Against this background, the Refugee Appeals Board fully
relies on its decisions of 13 August 2007, 6 November 2007 and 14 and
28 April 2008.
No time-limit for departure is fixed
as, on 29 April 2008, the Refugee Appeals Board suspended your
client’s time-limit for departure for
the time being.”
- On
16 June 2009 the Refugee Appeals Board decided to suspend the
examination of asylum cases concerning Tamils from northern Sri
Lanka, including the applicant’s case.
- On
16 December 2009, on the basis of the most recent background
information concerning Sri Lanka including, inter alia, a
Memorandum of 26 October 2009 prepared by the Ministry of Foreign
Affairs, the Refugee Appeals Board decided to review the suspended
cases, including the applicant’s case.
- On
12 March 2010 the Refugee Appeals Board refused to reopen the
applicant’s case as it found that the most recent general
background information would not lead to a revised assessment of the
case. More specifically in its letter to the applicant’s
representative it stated as follows:
The Refugee Appeals Board observes that as her asylum
motive your client has stated, inter alia, that, in case of
return, she fears outrages committed by the LTTE because she left
without permission. She also fears the Sri Lankan military forces.
Due to the injuries incurred by her during military operations, she
fears that the Sri Lankan army will suspect her of being a
member of the LTTE. Moreover, your client fears that her former
family-in-law, with whom she is on bad terms and who live in Sri
Lanka and have good connections with the Sri Lankan military forces,
have informed on her to the Sri Lankan authorities and that she will
therefore be unable to enter the country without becoming an object
of interest to the authorities. Her former spouse living in Denmark
has her ID card, and she fears that he will travel to Sri Lanka
and do something that may harm her. Finally, your client has stated
that, as a single woman without family or social network, she will be
unable to manage in her country of origin.
By decision of 13 August 2007 the Refugee Appeals Board
stated, inter alia, that your client had left Sri Lanka in
possession of her own national passport without problems and that she
had not, prior to her departure, been subjected to outrages or the
like of a nature to warrant asylum. The Board found that the fact
that your client was affiliated with the LTTE as a child soldier when
very young did not in itself warrant granting asylum. In that
connection, the Refugee Appeals Board emphasised the length of the
time passed and the fact that your client was deemed not to have made
herself stand out in any way. Moreover, the Board found that the
general situation for single women in Sri Lanka could not justify
granting a residence permit under section 7 of the Aliens Act.
The Board observed that your client’s problems with her former
spouse were of a private law nature and therefore recommended that
she seek the protection of the authorities in case of conflicts. The
Board finally found that it had not been rendered probable that your
client would be unable to seek the protection of the authorities and
that therefore the information on her former family-in-law could not
lead to a revised assessment.
The Refugee Appeals Board still finds that your client’s
fear of the LTTE and the Sri Lankan authorities and the conflict with
her former family-in-law do not warrant a residence permit under
section 7 of the Aliens Act.
In that connection, the Refugee Appeals Board refers to
your client’s statement during the asylum proceedings to the
effect that she did not have any problems with the LTTE at any time
prior to her departure, including in connection with her leaving the
LTTE. On the contrary, she stated that the LTTE accepted her leaving
the organisation. The Board observes that several years have passed
since your client left the LTTE, and therefore the Board cannot find
as a fact that former LTTE members would pursue her because she had
left the country without permission from the LTTE.
Additionally, the Sri Lankan military forces defeated
the LTTE in May 2009. Moreover, it appears from the background
information available to the Board that it is hardly likely that
former low-ranking members of the LTTE or persons who have previously
supported the LTTE will risk reprisals from the LTTE, see
United Kingdom: Home Office, Operational Guidance Note, Sri
Lanka, August 2009.
The possibility that as an ethnic Tamil from northern
Sri Lanka your client risks being questioned and investigated by the
authorities upon entry into her country of origin does not lead to a
revised assessment of the case under asylum law. The individuals at
particular risk of being detained and investigated upon entry in
Colombo are young Tamils, men in particular, from northern and
eastern Sri Lanka; those without ID; those not resident or employed
in Colombo; and those recently returned from the West, see United
Kingdom: Home Office, Report of Information Gathering Visit to
Colombo, Sri Lanka 23 -
29 August 2009.
Similarly, although your client risks being detained at
the airport, the Refugee Appeals Board finds that this cannot warrant
asylum. In that connection, the Board refers to your client’s
statement during the asylum proceedings to the effect that she was an
ordinary, rank-and-file member of the LTTE and that she has not had
any conflicts with the Sri Lankan authorities at any time, or been
registered in any way. She departed lawfully from Sri Lanka in
possession of her own Sri Lankan national passport for the purpose of
family reunification in Denmark. Moreover, several years have passed
since your client carried out activities for the LTTE. Against that
background, the Refugee Appeals Board finds that it has not been
rendered probable that the Sri Lankan authorities would take a
special interest in your client upon return, regardless of her scars.
In this connection, the Refugee Appeals Board refers to
the fact that it appears from the background material available to
the Board that, in general, individuals who have supported the LTTE
on a lower level are not of interest to the authorities. Thus,
generally, only high-profile members of the LTTE who are still active
and wanted, or individuals wanted for serious criminal offences are
of interest to the authorities, see United Kingdom: Home Office,
Operational Guidance Note, Sri Lanka, August 2009, and Home Office,
Report of Information Gathering Visit to Colombo, Sri Lanka 23 29
August 2009.
Your client has also stated that her former
family-in-law has good connections with the Sri Lankan army and that
she has reason to believe that the family has informed on her to the
Sri Lankan authorities. The Board does not consider this information
a fact. The information is thus not substantiated in detail, and your
client has not given a more accurate account of which member of her
former family-in-law is involved and when that member has allegedly
spoken to the authorities about your client.
Nor does the Refugee Appeals Board find that the fact
that your client’s former spouse has taken your client’s
ID card from her, and that she will have to have her national
passport renewed and might thereby attract attention to herself, can
lead to any other assessment.
As in the previous decisions in the case, the Refugee
Appeals Board still finds that the general situation in Sri Lanka is
not of such nature as to warrant in itself the grant of a residence
permit under section 7 of the Aliens Act.
Thus, the Refugee Appeals Board fully relies on the
decisions of 13 August 2007, 6 November 2007, 14 April 2008, 28
April 2008 and 11 June 2009. Against that background, the Board still
finds that it has not been rendered probable that, in case of return
to Sri Lanka, your client would be at concrete and individual risk of
persecution as covered by section 7(1) of the Aliens Act, or that
your client would be at a real risk of outrages as covered by section
7(2) of the Aliens Act.
It should be noted that your client’s time-limit
for departure is still suspended until further notice on the basis of
the request of 28 April 2008 from the European Court of Human Rights.
If your client’s lawful stay in Denmark lapses,
she must leave the country immediately, see section 33(1) and (2) of
the Aliens Act. As appears from the decision of the Refugee Appeals
Board of 13 August 2007, your client may be forcibly returned to Sri
Lanka if she does not leave voluntarily, see section 32a, cf. section
31, of the Aliens Act.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Asylum
proceedings in Denmark
32. By
virtue of section 7 of the Aliens Act (Udlændingeloven),
asylum is granted to aliens who satisfy the conditions of the Geneva
Convention. Applications for asylum are determined in the first
instance by the former Aliens Authorities (now called the Immigration
Service) and in the second instance by the Refugee Appeal Board.
- Pursuant
to section 56, subsection 8 of the Aliens Act, decisions by the
Refugee Board are final, which means that there is no avenue for
appeal against the Board’s decisions. Aliens may, however, by
virtue of Article 63 of the Danish Constitution (Grundloven)
bring an appeal before the ordinary courts, which have authority to
adjudge on any matter concerning the limits to the competence of a
public authority.
- By
virtue of section 54, subsection 1, second sentence, of the Aliens
Act the Refugee Appeals Board itself sees that all facts of a case
are brought out and decides on examination of the alien and witnesses
and procuring of other evidence. Consequently, the Board is
responsible not only for bringing out information on all the specific
circumstances of the case, but also for providing the requisite
background information, including information on the situation in the
asylum-seeker’s country of origin or first country of asylum.
For this purpose, the Refugee Appeals Board has a comprehensive
collection of general background material on the situation in the
countries from which Denmark receives asylum seekers. The
material is up-dated and supplemented on a continuous basis. The
background material of the Refugee Appeals Board is obtained from
various authorities, in particular the Danish Ministry of Foreign
Affairs and the Danish Immigration Service. In addition, background
material is procured from various organisations, including the Danish
Refugee Council, Amnesty International and other international human
rights organisations and the UNHCR. Also included are the annual
reports of the US State Department (Country Reports on Human Rights
Practices) on the human rights situation in a large number of
countries, reports from the British Home Office, reports from the
documentation centre of the Canadian Refugee Appeals Board, reports
from the Swedish Ministry for Foreign Affairs, reports from EURASIL
(European Union Network for Asylum Practitioners), reports from the
authorities of other countries and to some extent articles from
identifiable (international) journals. Moreover, the Board may
request the Danish Ministry of Foreign Affairs to issue an opinion on
whether it can confirm information from a background memorandum
drafted in general terms. The Refugee Appeals Board also retrieves
some of its background material from the Internet. Internet access
also enables the Board to obtain more specific information in
relation to special problems in individual cases.
- Usually,
the Refugee Appeals Board assigns counsel to the applicant. Board
hearings are oral and the applicant is allowed to make a statement
and answer questions. The Board decision will normally be served on
the applicant immediately after the Board hearing, and at the same
time the Chairman will briefly explain the reason for the decision
made.
III. RELEVANT INFORMATION ABOUT SRI LANKA
Events
occurring after the cessation of hostilities in May 2009
- Extensive
information about Sri Lanka can be found in NA. v. the United
Kingdom, no. 25904/07, §§
53-83. The information set out below concerns events occurring after
the delivery of the said judgment on 17 July 2008 and, in
particular, after the cessation of hostilities in May 2009.
- Fighting
between the Sri Lankan army and the LTTE intensified in early 2009,
with the army taking a number of rebel strongholds in the north and
east of the country. On 19 May 2009, in an address to the country’s
parliament, the President of Sri Lanka announced the end of
hostilities and the death of the leader of the LTTE, Velupillai
Prabhakaran. It was also reported that most,
if not all, of the LTTE’s leadership had been killed.
- The
previous day, the United Nations Office for the Coordination of
Humanitarian Affairs had estimated that around 220,000 people had
already reached internally displaced persons’ camps, including
20,000 in the last two or three days. In addition, it was believed
that another 40,000-60,000 people were on their way to the camps
through the crossing point at Omanthai, in the northern district of
Vavuniya.
- In
July 2009, the South Asia Terrorism Portal reported that the number
of killings in Sri Lanka in the previous three years (including
deaths of civilians, security forces and members of the LTTE) was:
4,126 in 2006; 4,377 in 2007; 11,144 in 2008 and 15,549 between 1
January 2009 and 15 June 2009. An estimated 75-80,000 people
were reported to have been killed in total over the course of the 26
year conflict.
40. In
July 2009, in a “Note
on the Applicability of the 2009 Sri Lanka Guidelines”,
the United Nations High Commissioner for Refugees (UNHCR) observed
that:
“Notwithstanding the cessation of the hostilities,
the current protection and humanitarian environment in Sri Lanka
remains extremely challenging. In the North, nearly the entire
population from the territory formerly held by the LTTE in the North
(285,000 Tamils) has been confined to heavily militarized camps in
the Northern region. Although the government has gradually reduced
the military presence in the camps and has pledged to start the
progressive return to their villages of origin of the majority of
those in the camps, it is clear that this may take a considerable
amount of time. The lack of freedom of movement remains the
overriding concern for this population restricting its ability to
reunite with family members outside the camps, access employment,
attend regular schools, and ultimately choose their place of
residence.”
- A
Human Rights Watch [HRW] press release, dated 28 July 2009, reported
that:
“The government has effectively sealed off the
detention camps from outside scrutiny. Human rights organizations,
journalists, and other independent observers are not allowed inside,
and humanitarian organizations with access have been forced to sign a
statement that they will not disclose information about the
conditions in the camps without government permission. On several
occasions, the government expelled foreign journalists and aid
workers who had collected and publicized information about camp
conditions, or did not renew their visas.”
- A
further Human Rights Watch press release dated 26 August 2009 set
out concerns that more than 260,000 Tamil civilians remained in
detention camps without the freedom to leave.
- In
August 2009, the first post-war local elections were held in Northern
Sri Lanka. The British Broadcasting Corporation reported that voter
turn-out was low due to the number of people who were still
displaced. The governing party, the United People’s Freedom
Alliance, took the majority of seats in the biggest city in the
region, Jaffna. However, the Tamil National Alliance, a party
sympathetic to the defeated LTTE, took the majority of seats in
Vavuniya, the other town where polling took place.
- On
7 September 2009, James
Elder, the official spokesman for the United Nations Children’s
Fund in Sri Lanka was ordered to leave Sri Lanka because of
adverse remarks that he had made to the media about the plight of
Tamils in the government-run camps.
- On
10 September 2009 the Sri Lankan Official Government News Portal
announced that the motion to extend the State of Emergency
(under which the authorities have
extensive anti-terrorism powers and heightened levels of security
including checkpoints and road blocks)
by a further month had been
passed by Parliament with a majority of 87 votes.
46. In
a report dated 22 October 2009, the United States of America State
Department published a report entitled “Report
to Congress on Incidents During the Recent Conflict in Sri Lanka”,
which compiled incidents from January 2009,
when the fighting intensified, until the
end of May 2009. Without reaching any conclusions as to whether they
had occurred or would constitute violations of international law, it
set out extensive reports of enforced child soldiers, the killing of
captives or combatants trying to surrender, enforced disappearances
and severe humanitarian conditions during the hostilities.
47. On
21 November 2009, the Sri Lankan
Government announced its decision that all internally displaced
persons would be given freedom of movement and allowed to leave the
detention camps from 1 December 2009.
- In
its Global Appeal 2010-2011, the UNHCR reported that:
“The Government-led military
operations in northern Sri Lanka which ended in May 2009
displaced some 280,000 people, most of whom fled their homes in the
last few months of the fighting. The majority of these internally
displaced persons (IDPs) now live in closed camps in Vavuniya
district, as well as in camps in Mannar, Jaffna and Trincomalee. An
additional 300,000 IDPs, some of whom have been displaced since 1990,
are also in need of durable solutions.
The IDPs originate mainly from the Mannar, Vavuniya,
Kilinochchi, Mullaitivu and Jaffna districts in northern Sri Lanka,
as well as from some areas in the east of the country. Though the end
of hostilities has paved the way for the voluntary return of
displaced people, some key obstacles to return remain. For instance,
many of the areas of return are riddled with mines and unexploded
ordnance. Not all are considered to be of high risk, particularly
those away from former frontlines, but mine-risk surveys and the
demarcation of no-go areas are urgently needed.
Other key obstacles to return include the need to
re-establish administrative structures in areas formerly held by the
Liberation Tigers of Tamil Eelam; the destruction or damaged
condition of public infrastructure and private homes; and the
breakdown of the economy - including agriculture and fisheries.
The Government of Sri Lanka is planning the return
framework, and it has called on UNHCR for support with return
transport, non-food items, return shelter, livelihoods support and
assistance in building the capacity of local authorities.
With some progress having been
recently achieved, it is hoped that a substantial number of IDPs will
be able to return to their places of origin in the latter half of
2009, but a large portion of new IDPs are also likely to remain in
the camps and with host families until well into 2010.”
49. In
a Human Rights Report 2009, dated 11 March 2010, the United States
of America State Department stated that the
Sri-Lankan Government accepted assistance from NGOs and international
actors for the IDP camps but management of the camps and control of
assistance were under the military rather than civilian authorities.
Food, water, and medical care were all insufficient in the first few
weeks after the end of the war, but by July the situation had
stabilised and observers reported that basic needs were being met. In
June the military withdrew from inside the camps but continued to
provide security around the barbed wire-enclosed perimeter. The
IDPs in the largest camp, Manik Farm, were not given freedom of
movement until December, when a system of temporary exit passes was
implemented for those who had not yet been returned to their
districts of origin. Some observers said that this exit system still
did not qualify as freedom of movement.
- Human
Rights Watch, in their report, World Report 2010, estimated that six
months after the main fighting ended, the Government continued to
hold more than 129,000 people (more than half of them women and
girls) in the camps. Over 80,000 of these were children. The camps
were severely overcrowded, many of them holding twice the number
recommended by the UN. As a result, access to basic requirements such
as food, water, shelter, toilets and bathing, had been inadequate.
These conditions imposed particular hardships on the elderly,
children and pregnant women. The camps were under military
administration, and effective monitoring by humanitarian agencies was
lacking. The authorities failed to provide camp residents with
sufficient information about the reason for their continued
detention, the whereabouts of relatives, or the criteria and
procedure for their return home.
- The
United Kingdom Border Agency Country of Origin Information Report on
Sri Lanka of 11 November 2010 (“the November 2010 COI Report”)
stated as follows:
4.23 The International
Crisis Group (ICG) report Sri Lanka:
A Bitter Peace, 11 January
2010, also referred to “extra-legal detention centres”
maintained by the military and observed: “These detained have
had no access to lawyers, their families, ICRC or any other
protection agency, and it is unclear what is happening inside the
centres. In addition, ‘the grounds on which the ex-combatants
have been identified and the legal basis on which they are detained
are totally unclear and arbitrary’. Given the well-established
practice of torture, enforced disappearance and extra-judicial
killing of LTTE suspects under the current and previous Sri Lankan
governments, there are grounds for grave concerns about the fate of
the detained. The government has announced that of those alleged
ex-combatants currently detained, only 200 will be put on the trial;
most will detained for a further period of ‘rehabilitation’
and then released.”
...
4.25 Referring to the
“at least 11,000 people” detained “in so-called
‘rehabilitation centers” because of their alleged
association with the LTTE, the HRW [document Legal
Limbo, The Uncertain Fate of Detained LTTE Suspects in Sri Lanka,
released on 29 January 2010, observed: “The government has
routinely violated the detainees’ fundamental human rights,
including the right to be informed of specific reasons for arrest,
the right to challenge the lawfulness of the detention before an
independent judicial authority, and the right of access to legal
counsel and family members. The authorities’ consistent failure
to inform families of the basis for the detainees’ arrest and
their whereabouts raises serious concerns that some detainees may
have been victims of torture and ill-treatment, which are more likely
to take place where due process of law is lacking and which have long
been serious problems in Sri Lanka. Given the lack of information
about some detainees, there is also a risk that some may have been
‘disappeared’.”
4.31 The UNHCR
‘Eligibility Guidelines for
Assessing the International Protection Needs of Asylum-Seekers from
Sri Lanka’, 5 July 2010
reported that “In the wake of the conflict, almost 11,000
persons suspected of LTTE links were arrested and detained in
high-security camps” adding that “According to a
Government survey, as of 1 March 2010, 10,781 LTTE cadres were being
held at 17 centres. Among the detainees were 8,791 males and 1,990
females.” and noted that “Some of the adult detainees
have...been released after completing rehabilitation programmes or
because they were no longer deemed to present a risk, including some
persons with physical disabilities.”
- The
November 2010 COI Report also set out:
4.09 The EIU [The
Economist Intelligence Unit], Country Report, Sri Lanka, July 2010
reported: “The EU has warned that Sri Lanka faces losing trade
advantages under the Generalised System of Preferences-Plus
(GSP-Plus) scheme from August 15th, unless the Government
commits itself in writing to improving its human rights record. The
EU has put forward 15 conditions that it says the Government needs to
promise to meet within the next six months. These include: ensuring
that the 17th amendment to the constitution, which requires that
appointments to public positions be impartial and reflect the
country’s ethnic and religious mix, is enforced; repealing
parts of the Prevention of Terrorism Act that are incompatible with
Sri Lanka’s covenants on political and human rights; reforming
the criminal code to allow suspects immediate access to a lawyer on
arrest; and allowing journalists to carry out their professional
duties without harassment. However, the Government has rebuffed the
EU, stressing that the issues that it has raised are internal
political matters that should not be linked to trade. “The EU
is not the only international body currently putting pressure on the
government. Sri Lanka has also rejected the UN’s appointment of
a three-member panel to examine possible human rights violations
during the island’s civil war. The Sri Lankan authorities have
warned that they will not provide visas for panel members to enter
the country.”
...
4.11 The EIU, Country
Report, Sri Lanka, August 2010 noted that: “The decision by the
UN secretary-general, Ban Ki-moon [on 22 June 2010], to appoint a
panel to examine accountability issues stemming from the final stages
of the island’s civil war, which ended in May 2009, has
prompted a strong reaction in Sri Lanka ...
4.12 On 17 September
2010 the UN News Service reported that “Secretary-General Ban
Ki moon has held his first meeting with the panel of experts set
up to advise him on accountability issues relating to alleged
violations of international humanitarian and human rights law during
the final stages last year of the conflict in Sri Lanka.” The
source also noted that the role of the experts was to examine “the
modalities, applicable international standards and comparative
experience with regard to accountability processes, taking into
account the nature and scope of any alleged violations in Sri Lanka.”
The treatment of returned failed asylum seekers at Colombo airport
United Kingdom Government Reports
- The
United Kingdom Border Agency Country of Origin Information Report on
Sri Lanka of 18 February 2009 (“the February 2009 COI Report”)
sets out a series of letters from the British High Commission –
hereafter “BHC”, Colombo, on arrival procedures at
Colombo airport. In its letter of 28 August 2008, the BHC observed:
“[T]he correct procedure for
[Department of Immigration and Emigration [DIE]] officers is to
record the arrival of these persons manually in a logbook held in the
adjacent Chief Immigration Officer’s office. The name, date and
time of arrival and arriving flight details are written into the log.
It records why the person has come to their attention and how the
case was disposed of. I have had the opportunity to look at the log,
and it appears that the only two ways of disposal are to be passed to
the Criminal Investigations Department [CID], or allowed to proceed.
The office of the State
Intelligence Service [SIS] is in the immigration arrivals hall and an
officer from SIS usually patrols the arrivals area during each
incoming flight. Invariably, if they notice a person being
apprehended they approach IED
[Immigration and Emigration Department] and
take details in order to ascertain in [sic] the person may be of
interest to them. Their office contains three computer terminals, one
belonging to the airport containing flight information and two
stand-alone terminals. If an apprehended person is considered
suitable to be passed to CID, they are physically walked across the
terminal building to the CID offices. A CID officer should then
manually record the arrival of the person in a logbook held in their
office...often persons shown in the DIE logbook to have been handed
to CID are never actually recorded as being received in the CID
logbook. It is believed that CID has allowed these persons to proceed
and no action has been taken against them.”
- The
same letter also noted that CID offices at the airport contained two
computers, which were not linked to any national database. Any checks
on persons detained or apprehended were conducted over the phone with
colleagues in central Colombo. There were no fingerprint records at
the airport. One computer contained records of suspects who had been
arrested and charged with offences, and court reference numbers. It
continued as follows:
“Were a Sri Lankan national
to arrive at Colombo Airport having been removed or deported from the
United Kingdom, they would be in possession of either a valid
national Sri Lankan passport, or an emergency travel
document/temporary passport, issued by the Sri Lankan High Commission
in London. The holder of a valid passport would have the document
endorsed by the immigration officer on arrival and handed back to
him/her. A national passport contains the national ID card number on
the laminated details page. I have made enquiries with the DIE at
Colombo Airport, and with the International Organisation for
Migration who meet certain returnees at the airport, and both have
confirmed that a person travelling on an emergency travel document is
dealt with similarly. They too have the document endorsed by the
immigration officer on arrival and returned to them. Before issuing
an emergency travel document, the Sri Lankan High Commission in
London will have details of an applicant confirmed against records
held in Colombo and will thus satisfactorily confirm the holder’s
nationality and identity. If a returnee subsequently wishes to obtain
a national identity card, they have to follow the normal procedures.”
- In
a letter dated 22 January 2009, the BHC reported that an official had
spent several hours observing the return of failed asylum seekers
from the United Kingdom, including those who were in possession of
emergency travel documents, issued by the Sri Lankan High Commission
in London. In the official’s opinion, the fact that certain
returnees had been issued with emergency travel documents by the Sri
Lankan High Commission in London did not seem to make any difference
to their treatment upon arrival.
- The
Report of Information Gathering Visit to Colombo on 23 to 29 August
2009, conducted jointly by the Foreign and Commonwealth Office
Migration Directorate and United Kingdom Border Agency Country of
Origin Information Service (“the Report of Information
Gathering Visit, August 2009”), concluded that all enforced
returns (of whatever ethnicity) were referred to the CID at the
airport for nationality and criminal record checks, which could take
more than 24 hours. All enforced returns were wet-fingerprinted.
Depending on the case, the individual could also be referred to the
SIS and/or the Terrorist Investigation Department for questioning.
Anyone who was wanted for an offence would be arrested.
- The
report set out that those with a criminal record or LTTE connections
would face additional questioning and might be detained. In general,
non-government and international sources agreed that Tamils from the
north and east of the country were likely to receive greater scrutiny
than others, and that the presence of the factors below would
increase the risk that an individual could encounter difficulties
with the authorities, including possible detention:
- Outstanding
arrest warrant
- Criminal
record
- Connection
with the LTTE
- Bail
jumping/escape from custody
- Illegal
departure from Sri Lanka
- Scarring
- Involvement
with media or NGOs
- Lack
of an ID card or other documentation
- The
United Kingdom Border Agency Country of Origin Information Report on
Sri Lanka of 11 November 2010 set out the following:
33.20 The BHC letter of 30 August 2010 went on to
observe that: “At the beginning of 2010, partly due to the
large numbers of Sri Lankans being returned from around the world and
causing logistical problems, CID procedures were relaxed in that they
no longer had to detain returnees until written confirmation was
received from the local police. All returnees are still interviewed,
photographed and wet fingerprinted. The main objective of these
interviews is to establish if the returnee has a criminal record, or
if they are wanted or suspected of committing any criminal offences
by the police. The photographs are stored on a standalone computer in
the CID office at the airport. The fingerprints remain amongst paper
records also in the CID office at the airport. Checks are initiated
with local police, but returnees are released to a friend or
relative, whom CID refers to as a surety. This surety must provide
evidence of who they are, and must sign for the returnee. They are
not required to lodge any money with CID. “The main CID offices
at Colombo Airport, which are housed on the ground floor adjacent to
the DIE embarkation control, are currently undergoing a complete
refurbishment funded by the Australian government. The one completed
office suite has three purpose built interview rooms, and facilities
where returnees can relax and eat meals.”
...
33.22 A British High
Commission letter of 14 September 2010 reported: “There is
strong anecdotal evidence that scarring has been used in the past to
identify suspects. Previous conversations with the police and in the
media, the authorities have openly referred to physical examinations
being used to identify whether suspects have undergone military style
training. More recent claims from contacts in government ministries
suggest that this practice has either ceased or is used less
frequently. At the very least it appears that the security forces
only conduct these when there is another reason to suspect an
individual, and are not looking for particular scars as such, but
anything that may indicate the suspect has been involved in fighting
and/or military training. There is no recent evidence to suggest that
these examinations are routinely carried out on immigration
returnees.”
Other Sources
59. On
19 October 2009, Tamilnet reported that twenty-nine Tamil youths were
taken into custody by the State Intelligence Unit of the Sri Lanka
Police at the International Airport in two separate incidents whilst
trying to leave Sri Lanka. It was also reported that since July 2009,
special teams of the State Intelligence Unit and police had been
deployed in the airport to monitor the movement of Tamils who try to
go abroad.
The treatment of Tamils in Colombo
United Kingdom Government Reports
- The
Report of Information Gathering Visit, August 2009, stated that the
frequency of cordon and search operations had not reduced
significantly in recent months, though there were fewer large-scale
operations than in previous years. In general, young male Tamils
originating from the north and east of the country were most at risk
of being detained following cordon and search operations, with the
presence of the risk factors set out above increasing that risk.
Those without employment or legitimate purpose for being in Colombo
were also likely to be seen as suspect. The same report also noted
that most sources agreed that there had been few, if any, abductions
or disappearances since June 2009. There was not a great deal of
available information about the profile of Tamils targeted for
abduction, although it appeared that people linked to the media might
be more vulnerable. Police did not generally carry out effective
investigations. It went on to note that most sources agreed that
there had not been any significant reduction in the number of
checkpoints in Colombo, whose stated purpose remained to detect and
prevent terrorist activity. In general those most likely to be
questioned were young Tamils from the north and east; those without
ID; those not resident or employed in Colombo; and those recently
returned from the West. However, most sources said that arrests at
checkpoints were rare and none had been reported since June 2009.
It was reportedly fairly likely that someone would be stopped at a
checkpoint en route from
the airport to Colombo city. Finally, it clarified that people who
wished to live in Colombo but did not originate from there must
register with the local police station with a national ID card or
full passport, and details of planned length and purpose of stay. In
theory, whilst anyone was entitled to register to stay in Colombo,
some sources suggested that young Tamil men originally from the north
or east of the country could encounter difficulties and face closer
scrutiny. The presence of any of the risk factors set out above would
also attract greater attention from the police.
The treatment of Tamils in general
United Nations Reports
61. The
UNHCR Eligibility Guidelines for Assessing the International
Protection Needs of Asylum-Seekers from Sri Lanka, April 2009 (“UNHCR
2009 Sri Lanka Guidelines”) observed that:
“The significant majority of
reported cases of human rights violations in Sri Lanka involve
persons of Tamil ethnicity who originate from the North and East...In
Government-controlled areas, Tamils who originate from the North and
the East, which are, or have been under LTTE control, are frequently
suspected as being associated with the LTTE. For this reason, Tamils
from the North and the East are at heightened risk of human rights
violations related to the implementation of anti-terrorism and
anti-insurgency measures. While this risk exists in all parts of
Sri Lanka, it is greatest in areas in which the LTTE remains
active, and where security measures are heaviest, in particular the
North and parts of the East, and in and around Colombo.”
62. The
Guidelines also noted that the Government had been heavily criticised
for the high number of Tamils who have been subjected to arrest and
security detention, particularly on the basis of information gathered
in registration exercises and questioning at cordons and road
checkpoints in and around the capital.
63. The
UNHCR ‘Note on the Applicability of the 2009 Sri Lanka
Guidelines’, dated July 2009, observed:
“The country of origin
information that UNHCR has considered indicates that Tamils from the
North of Sri Lanka continue to face a significant risk of suffering
serious human rights violations in the region (and elsewhere in the
country) because of their race (ethnicity) or (imputed) political
opinion. Tamils in the North are still heavily targeted in the
security and anti-terrorism measures described in the Guidelines.
Wide scale detention and confinement of Tamils from the North remains
a serious concern. Pro-Government paramilitary elements also continue
to operate with impunity against Tamils in the North.”
- The
UNHCR Eligibility Guidelines for Assessing the International
Protection Needs of Asylum-Seekers from Sri Lanka of 5 July 2010,
which superseded the April 2009 Guidelines contained information on
the particular profiles for which international protection needs may
arise in the current context. It was stated that:
“given
the cessation of hostilities, Sri Lankans originating from the north
of the country are no longer in need of international protection
under broader refugee criteria or complementary forms of protection
solely on the basis of risk of indiscriminate harm. In light of the
improved human rights and security situation in Sri Lanka, there is
no longer a need for group-based protection mechanisms or for a
presumption of eligibility for Sri Lankans of Tamil ethnicity
originating from the north of the country. It is important to bear in
mind that the situation is still evolving, which has made the
drafting of these Guidelines particularly complex.”
- In
summary, the following were UNHCR’s recommendations: all claims
by asylum seekers from Sri Lanka should be considered on the basis of
their individual merits according to fair and efficient refugee
status determination procedures and up-to-date and relevant country
of origin information. UNHCR considered that, depending on the
particular circumstances of the case, some individuals with profiles
similar to those outlined in the Guidelines require a particularly
careful examination of possible risk. These risk profiles, while not
necessarily exhaustive, are set out below:
(i) persons
suspected of having links with the Liberation Tigers of Tamil Eelam
(LTTE);
(ii) journalists
and other media professionals;
(iii) civil
society and human rights activists;
(iv) women and
children with certain profiles; and
(v) lesbian,
gay, bisexual and transgender (LGBT) individuals.
It
was also stated that in the light of Sri Lanka’s 26 year
internal armed conflict, and a record of serious human rights
violations and transgressions of international humanitarian law,
exclusion considerations under Article 1F of the 1951 Convention
Relating to the Status of Refugees may arise in relation to
individual asylum seeker claims by Sri Lankan asylum seekers.
Other Sources
66. The
BBC reported in March 2010 that the Colombo police force had opened
four special units in Colombo suburbs able to take statements in
Tamil, with plans for more. Previously, Tamil-speaking Sri Lankans
had to rely on a friend to translate their complaints into Sinhala.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 2 AND 3 OF THE CONVENTION
- The
applicant complained that an implementation of the deportation order
to return her to Sri Lanka would be in violation of Articles 2 and 3
of the Convention, which in so far as relevant read as follows:
Article 2
“1. Everyone’s right to life
shall be protected by law. No one shall be deprived of his life
intentionally save in the execution of a sentence of a court
following his conviction of a crime for which this penalty is
provided by law”.
Article 3
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
Government contested that argument.
A. Admissibility
- The
Court finds that it is more appropriate to deal with the complaint
under Article 2 in the context of its examination of the related
complaint under Article 3 and will proceed on this basis (see NA.
v. the United Kingdom, no. 25904/07, § 95, 17 July 2008). It
notes that the complaint is not manifestly ill-founded within the
meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The applicant
- The
applicant maintained that in case of her return to Sri Lanka she
would be exposed to a real risk of being subjected to treatment
contrary to Article 3 of the Convention.
- She
pointed out that during the entire asylum procedure in Denmark she
has maintained that she was a member of, and a child soldier for, the
LTTE, which has not been disputed by the Refugee Appeals Board. Thus,
although she did not from the very outset of the asylum proceedings
describe the full extent of her attachment to LTTE, it was a fact
that she managed to escape the organisation only in 2002 when, due to
the ceasefire between the Sri Lankan Government and LTTE, and due to
the tsunami, it was possible to move from one place to another and
subsequently to leave the country without being subjected to any
thorough control measures.
- The
situation in Sri Lanka has deteriorated, however, and the entry
checks carried out now are very intense upon a forced return. The
applicant can thus expect to be subjected to far more thorough
control measures merely because she comes from Jaffna in northern Sri
Lanka. This aspect would be considered in the light of her visible
scars, which were inflicted in connection with previous hostilities,
and would cause her a serious explanation problem.
- Moreover,
the applicant’s relationship with her former spouse has been
very strained in connection with the separation and the divorce.
Hence, the applicant’s information to the effect that her
former spouse and/or his family have passed on information about her
to the Sri Lankan authorities cannot be characterised as unreliable.
2. The Government
- The
Government claimed that no violation of Article 3
would occur if the applicant were to be returned to Sri Lanka.
75. They
noted that the applicant first and foremost claimed that she would be
subjected to treatment contrary to Article 3 by the Sri Lankan
authorities, because she had been a soldier for the LTTE from 1988 to
1994, and that as a result of her participation in fighting at the
relevant time, she has a scar next to her eye and has lost part of
her finger. Moreover, she looks like a Tamil, and her ex-husband’s
family in Sri Lanka, who have threatened her, have contacts with the
Sri Lankan military. However, the applicant was not detained or
subjected to outrages or to other acts contrary to Article 3 of the
Convention by the Sri Lankan authorities at any time prior to her
departure. Nor was she recorded by the authorities in connection with
detention, no photograph, fingerprints or other means of
identification were taken which would indicate that the authorities
may be presumed to know of her. The Sri Lankan authorities have not
at any time carried out any acts aimed at the applicant that indicate
that the authorities have any suspicion of her past as a soldier with
the LTTE and her scars did not occur as a result of her detention by
the authorities. She had her scars at the time when her passport was
issued in 2004 and when she lawfully departed from the country in
2005 for the purpose of family reunification with a spouse residing
in Denmark after the couple had officially married in Sri Lanka.
- In
sum, the Government were of the opinion that the present case is
clearly distinguishable from
NA. v. the
United Kingdom (cited above)
and that all the possible risk factors
identified by the applicant taken cumulatively, also in the light of
the current situation in Sri Lanka, do not constitute a sufficient
basis for concluding that, upon return to Colombo airport or at a
later date, the applicant would be of sufficient interest to the
authorities in their efforts to combat the LTTE to warrant her
detention and interrogation.
- In
respect of the applicant’s submissions relating to the threat
emanating from her ex-husband and his relatives in Sri Lanka due to
their alleged contacts with the authorities, the Government referred
to the Refugee Appeals Board’s decisions of 13 August 2007
and 14 April 2008 that it was unlikely that the applicant would not
be able to obtain the protection of the authorities, and that the
statement about the applicant’s former spouse having
surrendered her identity card could not be taken into account because
it had been submitted at a very late stage of the proceedings and
seemed to have been fabricated for the occasion.
- Finally,
the Government maintained that there were no reasons to believe that
the applicant would face a real and personal risk from the LTTE,
which she left in 1994. The applicant has not in any way demonstrated
that she has a high profile as an opposition activist or that she is
seen by the LTTE as a renegade or a traitor. By contrast, in her
complaint to the Court of 28 April 2008 it is stated that her
departure from the organisation did not lead to problems with the
LTTE.
3. The Court
(a) General
principles
- The Contracting States have the right as a matter of
international law and subject to their treaty obligations, including
the Convention, to control the entry, residence and expulsion of
aliens (Üner v. the Netherlands [GC], no. 46410/99,
§ 54, ECHR 2006 ....; Abdulaziz, Cabales and Balkandali
v. the United Kingdom, judgment of 28 May 1985, Series A no. 94,
p. 34, § 67, Boujlifa v. France, judgment of 21
October 1997, Reports 1997 VI, p. 2264, § 42).
- However,
expulsion by a Contracting State may give rise to an issue under
Article 3, and hence engage the responsibility of that State under
the Convention, where substantial grounds have been shown for
believing that the person concerned, if deported, faces a real risk
of being subjected to treatment contrary to Article 3. In such a
case, Article 3 implies an obligation not to deport the person in
question to that country (Saadi v. Italy [GC], no. 37201/06,
§ 125, 28 February 2008).
- The
assessment of whether there are substantial grounds for believing
that the applicant faces such a real risk inevitably requires that
the Court assess the conditions in the receiving country against the
standards of Article 3 of the Convention (Mamatkulov and Askarov
v. Turkey [GC], nos. 46827/99 and 46951/99, § 67, ECHR
2005 I). These standards imply that the ill treatment the
applicant alleges he will face if returned must attain a minimum
level of severity if it is to fall within the scope of Article 3. The
assessment of this is relative, depending on all the circumstances of
the case (Hilal v. the United Kingdom, no. 45276/99, §
60, ECHR 2001 II). Owing to the absolute character of the right
guaranteed, Article 3 of the Convention may also apply where the
danger emanates from persons or groups of persons who are not public
officials. However, it must be shown that the risk is real and that
the authorities of the receiving State are not able to obviate the
risk by providing appropriate protection (H.L.R. v. France,
judgment of 29 April 1997, Reports 1997 III, § 40).
- The
assessment of the existence of a real risk must necessarily be a
rigorous one (see Chahal v. the United Kingdom, judgment of 15
November 1996, Reports 1996-V, § 96; and Saadi v.
Italy, cited above, § 128). It is in principle for the
applicant to adduce evidence capable of proving that there are
substantial grounds for believing that, if the measure complained of
were to be implemented, he would be exposed to a real risk of being
subjected to treatment contrary to Article 3 (see N. v. Finland,
no. 38885/02, § 167, 26 July 2005). Where such
evidence is adduced, it is for the Government to dispel any doubts
about it.
- If
the applicant has not yet been extradited or deported when the Court
examines the case, the relevant time will be that of the proceedings
before the Court (see Saadi v. Italy, cited above, §
133). A full and ex nunc assessment is called for as the
situation in a country of destination may change in the course of
time. Even though the historical position is of interest in so far as
it may shed light on the current situation and its likely evolution,
it is the present conditions which are decisive and it is therefore
necessary to take into account information that has come to light
since the final decision taken by the domestic authorities (see Salah
Sheekh v. the Netherlands, no. 1948/04, § 136, ECHR 2007 I
(extracts)).
- The
foregoing principles, and in particular the need to examine all the
facts of the case, require that this assessment must focus on the
foreseeable consequences of the removal of the applicant to the
country of destination. This in turn must be considered in the light
of the general situation there as well as the applicant’s
personal circumstances (Vilvarajah and Others v. the United
Kingdom, judgment of 30 October 1991, Series A no. 215,
§ 108). In this connection, and where it is relevant to do so,
the Court will have regard to whether there is a general situation of
violence existing in the country of destination.
- The
Court has never ruled out the possibility that a general situation of
violence in a country of destination will be of a sufficient level of
intensity as to entail that any removal to it would necessarily
breach Article 3 of the Convention. Nevertheless, the Court
would adopt such an approach only in the most extreme cases of
general violence, where there was a real risk of ill-treatment simply
by virtue of an individual being exposed to such violence on return.
Exceptionally, however, in cases where an applicant alleges that he
or she is a member of a group systematically exposed to a practice of
ill-treatment, the Court has considered that the protection of
Article 3 of the Convention enters into play when the applicant
establishes that there are serious reasons to believe in the
existence of the practice in question and his or her membership of
the group concerned. In those circumstances, the Court will not then
insist that the applicant show the existence of further special
distinguishing features if to do so would render illusory the
protection offered by Article 3. This will be determined in the light
of the applicant’s account and the information on the situation
in the country of destination in respect of the group in
question. In determining whether it should or should not
insist on further special distinguishing features, it follows that
the Court may take account of the general situation of violence in a
country. It considers that it is appropriate for it to do so if that
general situation makes it more likely that the authorities (or any
persons or group of persons where the danger emanates from them) will
systematically ill treat the group in question (NA. v. the
United Kingdom, no. 25904/07, §§ 115- 117, 17 July
2008).
(b) Assessing
the risk to Tamils returning to Sri Lanka
- In
NA. v. the United Kingdom (cited above), the Court made a
number of general findings relating to the assessment of the risk of
Tamils returning to Sri Lanka.
- It
noted, among other things, that the United Kingdom Asylum and
Immigration Tribunal had recognised a number of factors (§§ 30
42), which might increase the risk of serious harm to Tamils
from the Sri Lankan authorities in Colombo. The factors were set
out in a headnote as follows:
“(1) Tamils are not per se at risk of serious
harm from the Sri Lankan authorities in Colombo. A number of factors
may increase the risk, including but not limited to: a previous
record as a suspected or actual LTTE member; a previous criminal
record and/or outstanding arrest warrant; bail jumping and/or
escaping from custody; having signed a confession or similar
document; having been asked by the security forces to become an
informer; the presence of scarring; return from London or other
centre of LTTE fundraising; illegal departure from Sri Lanka; lack of
an ID card or other documentation; having made an asylum claim
abroad; having relatives in the LTTE. In every case, those factors
and the weight to be ascribed to them, individually and cumulatively,
must be considered in the light of the facts of each case but they
are not intended to be a check list.
(2) If a person is actively wanted by the
police and/or named on a Watched or Wanted list held at Colombo
airport, they may be at risk of detention at the airport.
(3) Otherwise, the majority of returning
failed asylum seekers are processed relatively quickly and with no
difficulty beyond some possible harassment.
(4) Tamils in Colombo are at increased risk
of being stopped at checkpoints, in a cordon and search operation, or
of being the subject of a raid on a Lodge where they are staying. In
general, the risk again is no 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 Sri Lankan identity
documents will be subject to more investigation and the factors
listed above may then come into play.
...”
- The
Court stated (§§128-130) that while account had to be taken
of the general situation of violence in Sri Lanka at the present
time, it was satisfied that it would not render illusory the
protection offered by Article 3 to require Tamils challenging their
removal to Sri Lanka to demonstrate the existence of further special
distinguishing features which would place them at real risk of
ill-treatment contrary to that Article. Therefore, the Court
considered that it was 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 domestic
authorities, with the benefit of direct access to objective
information and expert evidence, had drawn up. It noted that the
Asylum and Immigration Tribunal had been careful to avoid the
impression that the risk factors were a “check list” or
exhaustive, and did not consider it necessary to identify any
additional risk factors, which had not been duly considered by the
domestic authorities. The Court emphasised, however, that the
assessment of whether there was a real risk must be made on the basis
of all relevant factors which may increase the risk of ill-treatment.
In its view, due regard should also be given to the possibility that
a number of individual factors may not, when considered separately,
constitute a real risk; but when taken cumulatively and when
considered in a situation of general violence and heightened
security, the same factors may give rise to a real risk. Both the
need to consider all relevant factors cumulatively and the need to
give appropriate weight to the general situation in the country of
destination derive from the obligation to consider all the relevant
circumstances of the case.
- Moreover,
on the basis of the evidence before it, the Court found (§133)
that, in the context of Tamils being returned to Sri Lanka, the
protection of Article 3 of the Convention enters into play when an
applicant can establish that there are serious reasons to believe
that he or she would be of sufficient interest to the authorities in
their efforts to combat the LTTE as to warrant his or her detention
and interrogation.
- In
respect of returns to Sri Lanka through Colombo, the Court found
(§§134-136) that there was a greater risk of detention and
interrogation at the airport than in Colombo city since the
authorities would have a greater control over the passage of persons
through an airport than they would over the population at large. In
addition, the majority of the risk factors identified by the Asylum
and Immigration Tribunal would be more likely to bring a returnee to
the attention of the authorities at the airport than in Colombo city.
It was also at the airport that the cumulative risk to an applicant,
arising from two or more factors, would crystallise. Hence the
Court’s assessment of whether a returnee is at real risk of
ill-treatment may turn on whether that person would be likely to be
detained and interrogated at Colombo airport as someone of interest
to the authorities. While this assessment is an individual one, it
too must be carried out with appropriate regard to all relevant
factors taken cumulatively including any heightened security measures
that may be in place as a result of an increase in the general
situation of violence in Sri Lanka. Furthermore, although noting
that the objective evidence before it contained different accounts of
the precise nature of the procedures followed at Colombo airport and
the nature of the information technology there, the Court considered
at the very least that the Sri Lankan authorities have the
technological means and procedures in place to identify at the
airport failed asylum seekers and those who are wanted by the
authorities. The Court further found that it was a logical inference
from those findings that the rigour of the checks at the airport is
capable of varying from time to time, depending on the security
concerns of the authorities. These considerations must inform the
Court’s assessment of the risk to the applicant.
- Finally,
in the Court’s view (§137) it could not be said that there
was a generalised risk to Tamils from the LTTE in a Government
controlled area such as Colombo. The Court accepted the findings of
the domestic authorities that individual Tamils might be able to
demonstrate a real and personal risk to them from the LTTE in
Colombo. However, it also accepted their assessment that this would
only be to Tamils with a high profile as opposition activists, or
those seen by the LTTE as renegades or traitors. The Court therefore
considered that it also had to examine any complaint as to the risk
from the LTTE in the context of the individual circumstances of an
applicant’s case.
- On
the basis of the objective information set out above (see paragraphs
36 - 66) concerning Sri Lanka after the passing on 17 July 2008
of the judgment in NA. v. the United Kingdom (cited
above), the Court finds that since the end of hostilities in
Sri Lanka and the death of the leader of the LTTE in May 2009,
there has been progress inter alia on the reintegration of
internally displaced persons and on the treatment of Tamils in
Colombo. However, there is no evidence of an improvement in the human
rights situation of Tamils suspected of having or recently having had
links with the LTTE.
- The
Court therefore maintains its conclusion in NA v. the United
Kingdom (cited above) that there is not a general risk of
treatment contrary to Article 3 to Tamils returning to Sri Lanka. The
protection of Article 3 of the Convention will enter into play only
when an applicant can establish that there are serious reasons to
believe that he or she would be of sufficient interest to the
authorities to warrant his or her detention and interrogation upon
return (NA. v. the United Kingdom, ibid, § 133).
- The
assessment of whether there is a real risk must therefore continue to
be made on a case by case basis considering all relevant factors, (as
set out in the United Kingdom Asylum and Immigration Tribunal Country
Guidance case of LP
and endorsed in NA. v. the United Kingdom, ibid, §
129-130) which may increase the risk of ill treatment, including
but not limited to: a previous record as a suspected or actual LTTE
member; a previous criminal record and/or outstanding arrest warrant;
bail jumping and/or escaping from custody; having signed a confession
or similar document; having been asked by the security forces to
become an informer; the presence of scarring; return from London or
other centre of LTTE fundraising; illegal departure from Sri Lanka;
lack of an ID card or other documentation; having made an asylum
claim abroad; and having relatives in the LTTE. The Court would also
reiterate that due regard must continue to be given to the
possibility that a number of individual factors may not, when
considered separately, constitute a real risk, but may do so when
taken cumulatively (NA. v. the United Kingdom, ibid, § 130)
bearing in mind any heightened security measures that may be in place
as a result of any increase in the general situation in Sri Lanka.
(c) The
applicant’s case
- On
the basis of the foregoing observations, the Court will examine the
applicant’s particular circumstances in order to determine
whether there would be a violation of Article 3 if she were to be
expelled to Sri Lanka. As the Court has observed, the applicant
complained that she was at real risk from both the LTTE and the Sri
Lankan authorities. Consequently, it will examine each of these
aspects of her complaint in turn.
- In
respect of the alleged risk to the applicant from the LTTE, the Court
reiterates that the hostilities between the latter and the Sri Lankan
Army ended on 19 May 2009. Moreover, it accepts the domestic
authorities’ assessment that the applicant left
the organisation in 1994 (see below) and that she has not in any way
demonstrated that she has a high profile as an opposition activist or
that she was seen by the LTTE as a renegade or a traitor. That
finding corresponds entirely with the applicant’s own statement
to the Court on 28 April 2008 that her departure from the LTTE did
not lead to any problems.
- In
assessing the risk to the applicant from the Sri Lankan authorities,
the Court will examine the strength of the applicant’s claim to
be at real risk as a result of an accumulation of the risk factors
identified.
- The
applicant is of Tamil ethnicity and has Tamil features. She is from
Jaffna in the north of Sri Lanka but lived in Colombo before her
departure.
- She
is a woman and thirty-eight years old.
- The
applicant left her country lawfully to join
her Sri Lankan husband in Denmark after the couple
had officially married in Sri Lanka. The applicant entered
Denmark on a valid passport issued on 11 February 2004.
- It
is undisputed that the applicant has been a member of the LTTE.
Originally, in the applicant’s request for asylum, she
explained that between 1988 and 1994 she had been a soldier for the
LTTE, but that having contracted malaria, in 1995 she had had
to leave the organisation. Subsequently, having been refused asylum
by the Danish authorities on 13 August 2007, and been refused a
reopening of her case on 6 November 2007, in yet another request for
a reconsideration of her case, by letter of
9 April 2008 the applicant changed her statement about her
affiliation with the LTTE and maintained that she had fled the LTTE
in 2002. The Court agrees with the Refugee
Appeals Board that since this new information appeared at such a late
stage of the asylum proceedings after the applicant had been refused
asylum and after she had had several opportunities to provide the
information, it should not be given much weight as evidence.
- The
applicant has never been arrested or detained or
had any problems with the Sri Lankan authorities. Moreover, the case
discloses no elements which could suggest that the Sri Lankan
authorities have any suspicion of her past as a soldier with the
LTTE.
- The
applicant maintained that she would attract the attention of
the Sri Lankan authorities at Colombo airport, notably in the light
of her visible scars, which were inflicted in combat when she was a
member of the LTTE. The Court notes, however, that the applicant did
not have any problems due to her scars when her
passport was issued in 2004 or when she left her country in 2005.
- It
also observes that there are no grounds for believing that the
Sri Lankan authorities are informed that the applicant made an
asylum claim abroad and she will not be deported
from a location which is considered a centre of LTTE fundraising.
- Finally,
as regards the risk of being arrested at Colombo airport, the Court
reiterates the arrival procedures there (see paragraphs 53 59)
and points out that the applicant has never been recorded by the Sri
Lankan authorities in connection with arrest or detention. Nor is
there any indication that photographs, fingerprints or other means of
identification have been stored by the Sri Lankan authorities in
order to enable them to identify the applicant upon return.
106. In
the Court’s view the present case is thus clearly
distinguishable from NA.
v. the United Kingdom (cited
above), in which NA. left Sri Lanka clandestinely after having been
arrested and detained by the army on six occasions between 1990 and
1997 on suspicion of involvement with LTTE. During one or possibly
more of these periods of detention he was ill treated and his
legs had scars from being beaten with batons. Moreover, during his
most recent detention, NA. had been photographed and his fingerprints
had been taken. His father had also signed certain papers in order to
secure NA.’s release.
107. Accordingly,
assuming that the applicant were to be removed through Colombo
airport, taking the above elements into account as well as various
factors such as age and gender, in the Court’s view the
applicant has failed to substantiate that she will be of specific
interest to the Sri Lankan authorities at Colombo airport.
108. Finally,
the Court considers that it is speculation whether the
applicant’s former spouse and/or his family will pass or may
have passed on information about the applicant to the Sri Lankan
authorities by way of reprisals.
- In conclusion, having regard to the current general
situation in Sri Lanka taken cumulatively with the risk factors
identified above, the Court finds that there are no substantial
grounds for finding that the applicant would be of interest to the
Sri Lankan authorities if she were returned. In those circumstances,
the Court finds that an implementation of the order to deport the
applicant to Sri Lanka would not give rise to a violation of
Article 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant also complained that an implementation of the deportation
order to return her to Sri Lanka would be in violation of Article 8
of the Convention, which reads as follows:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
- The Court reiterates that the purpose of the rule on
exhaustion of
domestic remedies is to afford the Contracting States the opportunity
to prevent or put right the violations alleged against them before
those allegations are submitted to the Court (see, among many other
authorities, Selmouni v. France [GC], no. 25803/94, § 74,
ECHR 1999-V).
- The
applicant failed to raise, either in form or substance, before the
domestic courts the complaint made to it. It follows that this part
of the application is inadmissible for non-exhaustion of domestic
remedies within the meaning of Article 35 § 1 of the Convention
and must be rejected pursuant to Article 35 § 4.
III. RULE 39
OF THE RULES OF COURT
- The
Court recalls that, in accordance with Article 44 § 2 of the
Convention, the present judgment will not become final until (a) the
parties declare that they will not request that the case be referred
to the Grand Chamber; or (b) three months after the date of the
judgment, if reference of the case to the Grand Chamber has not been
requested; or (c) the Panel of the Grand Chamber rejects any request
to refer under Article 43 of the Convention.
- It considers that the indication made to the
Government under Rule 39
of the Rules of Court (see above § 4) must continue in force
until the present judgment becomes final or until the Panel of the
Grand Chamber of the Court accepts any request by one or both of the
parties to refer the case to the Grand Chamber under Article 43 of
the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning Article 3
of the Convention admissible and the remainder of the application
inadmissible;
- Holds that an implementation of the order to
deport the applicant to Sri Lanka would not give rise to a violation
of Article 3 of the Convention;
- Decides to continue to indicate to the
Government under Rule 39 of the Rules of
Court that it is desirable in the interests of the proper conduct of
the proceedings not to deport the applicant until such time as the
present judgment becomes final or further order.
Done in English, and notified in writing on 20 January 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Renate Jaeger
Registrar President