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Cite as: [2012] EWHC 2638 (Admin)

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Neutral Citation Number: [2012] EWHC 2638 (Admin)
Case No: CO/5416/2012

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL
5 October 2012

B e f o r e :

MR JUSTICE COLLINS
____________________

Between:
S
Claimant
- and -

Secretary of State for the Home Department
Defendant

____________________

Miss Dinah Rose, Q.C., Mr Mark Henderson & Miss A Pickup (instructed by Birnberg Peirce & Partners) for the Claimant
Mr Jonathan Swift, Q.C. & Mr Alan Payne (instructed by The Treasury Solicitor) for the Defendant
Hearing dates: 11-13 September 2012

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Mr Justice COLLINS :

  1. For reasons which will become apparent, the claimant is to be referred to as S and nothing must be published or done which may identify him. This claim was listed as a rolled-up hearing. I granted permission and, the claimant's solicitors having undertaken to pay the appropriate fee, I dispensed with all procedural steps.
  2. The claimant is a citizen of Sri Lanka, now aged 27. He arrived in this country in January 2011 with a student visa valid until March 2012. In May 2011 he claimed asylum or humanitarian protection. His claim was based on his account that he had been forcibly recruited by the LTTE. He had escaped from them but was arrested by the Sri Lankan navy. He was detained and severely beaten and otherwise ill-treated by the authorities. He was released from detention and given a certificate of rehabilitation. He was required to live at an address and report monthly to the authorities when he returned home. He did not stay at that address and failed to report as he should have done, but when he left Sri Lanka he did so from Colombo airport on his own passport having obtained a student visa. He said that his brother had been arrested about the time that he left Sri Lanka and interrogated about his whereabouts.
  3. His claim was refused. He appealed, but his appeal was dismissed and his appeal rights were brought to an end in November 2011 following refusals of leave to appeal to the Upper Tribunal. On 6 February 2012 he was detained with a view to imminent removal to Sri Lanka. On 8 February 2012 directions were given for removal on 14 February. The claimant's then representatives made what they asserted was a fresh claim for asylum followed by a claim for judicial review lodged on 13 February. Ouseley J refused interim relief and permission on the same day, stating that the timing of the new evidence, the absence of any really substantial point which was not hearsay from his family and the absence of significant change in the background material meant that no reasonable immigration judge would allow an appeal.
  4. No medical evidence had been produced on the appeal. A report was obtained. The doctor's opinion was that his mental and physical state was consistent with his account of having been severely beaten and so tortured. He had scarring and showed the symptoms of Post Traumatic Stress Disorder (PTSD). This report was put to the defendant on 17 February 2012, but the defendant did not accept that it amounted to a fresh claim and served a refusal letter on 19 February 2012. It is to be noted that the immigration judge who heard the claimant's appeal had been unimpressed with him as a witness. He did not tell the whole truth. In particular, the immigration judge did not believe that he had been ill-treated as he alleged nor that he had been required to report or, as the claimant had said, to stay indoors. That was inconsistent with the certificate of rehabilitation. But the immigration judge did accept that he had been recruited by the LTTE as he had alleged, that he had attempted to escape but had been intercepted by the Sri Lankan navy and detained.
  5. A last minute attempt to prevent removal on 20 February 2012 was made by the claimant's then representatives. They failed to include the application letter of 17 February or the reply of 19 February and not surprisingly the application was refused and the claimant was removed on a flight which left this country at 9.25 p.m. on 20 February and arrived at Colombo at 3.25 p.m. local time the following day, (Sri Lankan time is 5 hours ahead of GMT).
  6. The claimant was kept at Colombo airport for some 20 hours. He says he was questioned about his involvement with the LTTE and ill-treated. In particular, he was hit in his face so that his nose bled and kicked on his legs causing abrasions. Precisely what he alleged had been done to him will have to be considered in more detail, but arrangements were made with the British High Commission so that a representative attended the airport and was aware that the claimant said that he had been ill-treated.
  7. The claimant had been removed on a scheduled flight. He had been escorted so that it was obvious that his was a removal rather than a voluntary return of a Sri Lankan citizen. On 23 February 2012 this court was notified by the Treasury Solicitor of a charter flight which would remove a number of failed asylum seekers to Sri Lanka on 28 February 2012. A challenge was made to these proposed removals on the ground that all would be likely to suffer ill-treatment on return. The challenge was passed to the Upper Tribunal and a hearing under the title X v Secretary of State for the Home Department was held at 2 p.m. on 27 February.
  8. By letter dated 24 February 2012 the Treasury Solicitor's representative notified the court of the claimant's allegations, stating that he had said he had been tortured and had been bleeding from his head. The letter, which I shall have to deal with in more detail, said that UKBA did not find the allegation to be credible. This letter was put to the Tribunal during the hearing of 27 February and its details were referred to in the determination of the Tribunal which was handed down in the morning of 28 February. While the letter itself disclosed the claimant's identity, the Tribunal, it seems of its own volition, caused it to be redacted so that the claimant's name was not disclosed. It is this letter and the disclosure of the claimant's allegations (which, he says, are not accurately recorded) that has led to this claim. It is said that the Sri Lankan authorities have identified the claimant and are seeking him with a view to detaining and, he asserts, ill-treating him for, in effect, slandering the state. In the circumstances, it is submitted on the claimant's behalf that the defendant was at fault in permitting the claimant's identity or details which would make it simple for the Sri Lankan authorities to ascertain his identity to be disclosed in a public hearing, that he is now at real risk of persecution and at least detention and that steps should be taken to secure his return to this country.
  9. In September 2011 the claimant had been referred to and was accepted by the organisation known as Freedom from Torture (FFT). FFT is concerned with the care of victims of torture. He was assessed by a caseworker and a psychiatrist and his account that he had been tortured was accepted since he was displaying symptoms entirely consistent with PTSD and had scars. When it was known that the claimant was due to be removed, FFT was concerned to ensure that the British High Commission (BHC) was aware of his removal so that steps could be taken to see that he was properly dealt with on arrival in Sri Lanka. FFT believed that a representative of the BHC did routinely attend the airport to meet those who had been removed. FFT had written to the Minister of State at the FCO in December 2011 expressing concern at the activities of the Sri Lankan government in continuing to torture and ill-treat those who were detained and asking for details of the arrangements the FCO had said were in place with staff of the BHC in Colombo to observe the initial processing of returnees. The Minister replied on 23 January 2012 stating:-
  10. "We will continue to follow the human rights situation in Sri Lanka and our High Commission in Colombo maintains oversight of the returns process. For the recent charter flight operations, UK Government officials were present at the airport and provided contact details of our High Commission in Colombo."
  11. The letter from FFT had been written largely because of concern at the policy of returning by charter flight. FFT believed from the reply that a representative of the BHC would attend when notified of the arrival of any returnee whether or not on a charter flight. This was a misunderstanding since attendance of a representative was only normally to occur if there was a charter flight. This is in the context of what occurred on the claimant's arrival of some importance since attendance of a BHC representative would be likely to make the Sri Lankan authorities believe that there was something special about that returnee.
  12. Following the misunderstanding, when the removal was fixed for 14 February 2012 Ms Sceats of FFT telephoned Mr Hall, the then team leader of the Sri Lankan Team at the FCO. Ms Sceats told Mr Hall that FFT was concerned about the claimant's vulnerability and safety as he was a torture survivor. Her recollection, consistent with notes she made of the call, is that Mr Hall, having given her the person to contact at the BHC, Mr Lewis, said that the team would be very careful about how information they shared about the claimant would be handled and that it would not be used to "tip off" the Sri Lankan authorities. Mr Hall did not make a note of the call and has produced a statement in which he says he does not recall Ms Sceats asking him not to tip off the Sri Lankan authorities. That is not what she had said in her statement of 23 March 2012. There is no reason to doubt her recollection supported as it is by contemporaneous notes. The point is that Mr Hall was confirming that the Sri Lankan authorities would not be given information about the claimant which might affect him adversely.
  13. Ms Sceats contacted Mr Lewis by email on 14 February saying that the claimant had been 'pulled off the flight'. Mr Lewis replied offering assistance if there were further concerns. At 2.06 a.m. on 21 February 2012 Ms Sceats emailed Mr Lewis to inform him that the claimant had been removed on a scheduled flight which she believed was due to have departed at 9 p.m. on 20 February. In the email, this was said:-
  14. "After assuring him that information shared with the BHC would under no circumstances be passed to the Sri Lankan authorities, we obtained his consent to share his details with you."

    His name and details were then given and real concern because of his distressed state and scarring was expressed. It was said that FFT had evidence that some Tamil returnees had been detained and tortured following their entry into Sri Lanka.

  15. Before going further into the material facts, it would be helpful to identify the issues which I need to determine. First, does the disclosure of the claimant's allegations of mistreatment at Colombo airport give rise to a valid public law claim whether because it was a breach of the duty of confidence or otherwise did not measure up to the standard of good administration? Secondly, if such a claim is made out, has the claimant established to whatever standard is required that he is at real risk of ill-treatment, whether detention or ill-treatment, which justifies a remedy? Finally, the nature of any remedy must be determined. There are factual issues involved in deciding the first two issues and in particular there are disputes as to what allegations were made by the claimant about his treatment at the airport and subsequent actions by security forces to try to locate him. It is common ground that at present he is provided with safe accommodation because he has expressed fears about what would happen to him if he were to be located by the security forces.
  16. I have not had any live evidence. That is not surprising since obviously the claimant is unavailable and his family and the BHC members who were involved with him are out of this country. It is not possible for me to reach final conclusions on all matters in dispute, but, subject to one caveat, I do not think that such conclusions are needed. The caveat is that if what the claimant has alleged is in any way shown at least likely to have been erroneous, that casts doubt, it is submitted by Mr Swift, on the reality of his expressed fears of ill-treatment by the Sri Lankan authorities.
  17. What occurred at the airport is not entirely clear. Approximately three and a half hours after the claimant's arrival at Colombo, Ms Sceats was contacted by a FFT caseworker saying that he had received information via a friend of the claimant in the U.K. that the claimant had been seen at the airport 'with blood coming from his nose'. A telephone number for the claimant's mother was provided. A call to this number was answered by the claimant's brother who informed Ms Sceats that 'a lady they knew who worked at the airport had called the family to say that the claimant was being held by CID officers and that he had been beaten and that he was bleeding from his nose'. His brother gave permission for this information to be given to the BHC on the assurance that the BHC would not share the information with the Sri Lankan authorities. At about 2.15 p.m. GMT Ms Sceats telephoned Mr Lewis and passed on the information given her by the claimant's brother. Mr Lewis expressed surprise because he had been informed by the border authorities that there had been no returnees. About fifteen minutes later Mr Lewis called back to tell Ms Sceats that the State Intelligence Service (SIS) confirmed that there was one returnee who was waiting in a queue. Mr Lewis, according to Ms Sceats, said that it would be, as he put it, dangerous for a representative to go to the airport and he did not think there was anything to worry about.
  18. Mr Lewis' recollection is that he was informed by Ms Sceats that the claimant 'had been detained on arrival by CID, was being beaten and had a head wound that was bleeding'. Mr Lewis asked a colleague, who has made a statement as X, to make enquiries. These resulted in the information that the claimant was awaiting questioning by the SIS, which was concerned with possible involvement with terrorism, following which he would be passed on to the CID, which was concerned with whether there were any outstanding warrants or any criminal offences had been committed. This was, it was said, routine.
  19. The following morning (22 February) shortly after 6 a.m. X received a call from the claimant's brother to say that the claimant had still not been released. Some 2 hours later Mr Lewis informed X of the involvement of FFT and that the claimant had told his brother that he had been beaten up and had a head wound which was bleeding. X contacted the claimant and says that he complained that he had been tortured and beaten by the CID. The information from the CID when the officer in charge was spoken to was that the claimant had been handed over to them at 2 a.m. and they were awaiting clearance from the police. Since the offices were not yet open, there would be a delay of up to 3 hours.
  20. When X arrived at the airport, the account given by the claimant's brother was that the claimant had told him that he had been beaten and tortured and was bleeding from an open head wound. At 10.30 information from the CID was that the claimant would be released within an hour. He appeared at about 11.10 a.m. and when X spoke to him he kept saying that he was beaten up and tortured and was bleeding. There was no visible recent injury.
  21. The claimant denies that he said he had been tortured or that he was bleeding from a head wound. Indeed, as X confirms, there was no visible injury or sign of bleeding so that, if he did say he was bleeding, that was obviously wrong. He says he did complain of a nose bleed caused by being hit to the face and that he had been kicked on his shins causing abrasions. He says that X did not speak with the same dialect as he and that there was a misunderstanding based on the use of a particular Tamil word. I do not need to decide where the truth lies since the allegation of torture is what found its way into the letter of 24 February so that that allegation was what was made public and picked up by the Sri Lankan authorities. It may be that the claimant, who was no doubt in a state of fear and who had as medical evidence obtained later showed probably been kicked by those interrogating him, did use words which might have exaggerated what had been done to him. Equally, bleeding from a head wound or nose bleed could have resulted from a misunderstanding. He may have believed that what had been done amounted to torture albeit it was probably not serious enough to qualify as such.
  22. Attempts were made to find a doctor who could examine the claimant and report on his injuries (if any). None in his home area could be found who were prepared to issue a report which concerned possible ill-treatment by the authorities. The claimant was accordingly brought to Colombo and examined by a doctor there. He was seen on 24 February and the doctor found abrasions to his shins which were consistent with his account of having been kicked during his examination at the airport. There were no signs of injury to his head which might support his allegation that he had been beaten on his head, but he was advised to seek further opinion from an ENT consultant in relation to any nose bleed or possible internal bleeding.
  23. In the letter of 23 February 2012 notifying this court of the charter flight on 28 February, disclosure concerns were noted. Attention was drawn to two cases in which Rule 39 orders had been made by the ECtHR because of fears of ill-treatment on return resulting from disclosure to the Sri Lankan authorities that one of the two individuals had made unsuccessful asylum claims. There were a further 13 individuals in respect of whom similar disclosures had been made. None of the 14 were on the flight. It was said that UKBA was satisfied that any 'risk on return which might arise following disclosure is limited to the subjects of these 14 cases only'. It was recognised that disclosure that a failed asylum claim had been made might create a risk of ill-treatment on return. Miss Rose submits that it must accordingly have been obvious that disclosure that allegations of torture had been made by a returnee after his removal would put him at risk.
  24. Mr Swift submits that the Treasury Solicitor was acting entirely properly in notifying the court that allegations of torture at the airport had been made by a returnee and that these allegations had been regarded as not credible. In principle that is no doubt correct since the case might have been raised in the challenge being made and in any event the Tribunal should be informed of any relevant matter which could affect the issue of safety on return. But since the hearing was to be in public care should have been taken to avoid any disclosure of details which might create a risk for the claimant. It would have been possible to notify the Tribunal that a returnee had made such a complaint which had been investigated and judged to have been unfounded. If details were needed, they could be given but there should be no disclosure of anything which might identify the claimant.
  25. The letter itself gave details of the time and date of arrival of the scheduled flight. That in itself would have sufficed to identify the claimant since it is common ground that he was the only enforced returnee on that flight. It went on to state the claimant had alleged that while being held by the CID he was 'subject to torture at the airport' and that that allegation had been investigated thoroughly through representatives at the airport. It was said that the claimant had been held for around 20 hours. Details were given of where the claimant lived and details in the report of the doctor who had examined him were set out. Albeit no attempt was made even to redact the claimant's names, an email was sent to the court three minutes after the letter saying:-
  26. "I should have instructed that the attached letter should not be disclosed to third parties, only the immediate and duty judges, as it contains individual and personal information."

    That was wholly insufficient to avoid the possible disclosure of the details in the course of any hearing.

  27. A representative of FFT, Ms Muqit attended the Tribunal hearing on 27 February because one of those to be removed on the charter flight was a client of FFT. The letter of 24 February was referred to and relied on by the defendant's counsel and Ms Muqit was, to his surprise, aware that it concerned the claimant. No attempts were made to ensure confidentiality. Ms Muqit obtained a copy of the letter from counsel for X who himself redacted the claimant's name.
  28. Before the Tribunal gave its decision on 28 February, X's counsel drew its attention to an email from FFT which stated that the claimant had not consented to the disclosure and that the details were not factually accurate. He requested the Tribunal to stay its hand down of the determination. Counsel for the defendant objected. The Tribunal agreed with him and proceeded to hand down the determination. Details of the contents of the 24 February letter were contained in a schedule to the determination. The claimant was referred to by his true initials.
  29. In the evening of 27 February the 24 February letter was posted on a blog edited by a member of the bar, Colin Yeo, called 'Free Movement'. The claimant's name was redacted but otherwise the letter was posted as it had been written. Mr Yeo has declined to say who provided him with the letter but has said that, since it was referred to in open court, it was a public document. However, following representations from the claimant's representatives, he removed it from the blog on 29 February.
  30. That was too late since it had been picked up by the Sri Lankan authorities. It was posted on the Sri Lankan government's website at 6.30 a.m. GMT on 29 February under the heading 'False claims of failed UK asylum seekers exposed'. The following paragraph was included:-
  31. "There has been a well-organised effort by pro-LTTE elements in the UK to prevent UKBA from carrying out deportation of Sri Lankans who have failed to qualify for asylum. This allegation was made to prevent the return of 100 deportees to Sri Lanka who were dispatched from UK yesterday."

    An identically worded report was carried in two pro-government newspapers, one on 29 February and the second on 1 March. The Sri Lankan Ministry of Defence published on its website the following:-

    "Britain facilitated deportation of another group of bogus asylum seekers to Sri Lanka yesterday (Feb 28). The latest move came amidst constant spin doctoring and misinformation campaigns carried out by pro-terrorist front groups and sympathetic dollar dwellers of the Human Rights Industry.
    Human Rights Watch and a proxy terror front group Freedom from Torture clamoured that the flights should be suspended because some 'ethnic' Tamils were subjected to cruel treatment in the island nation."

    The 24 February letter had made it clear that the claimant was supported by FFT.

  32. The defendant sought to discover who gave the letter to Free Movement and asserted that it was not her fault that the letter had reached the Sri Lankan authorities. That argument carries no weight since even if Free Movement had not put the letter in its blog, its details were in the Tribunal determination. It is impossible to believe that the Sri Lankan authorities would not have picked it up since they would have had an interest in the Tribunal's determination. Thus I am satisfied that the use of the letter in the Tribunal with no attempt to maintain confidentiality made it inevitable that it would come to the attention of the Sri Lankan authorities.
  33. Disclosure of relevant material by the defendant (in the course of a somewhat acrimonious exchange of correspondence) gave some details of meetings between an official of BHC and Sri Lankan CID and police. The first was on 29 February with a senior member of the Sri Lankan CID. The email sent to Mr Lewis following the meeting, which took place in the afternoon, states as follows:-
  34. "I took the opportunity to raise the recent torture allegation following a scheduled flight. [The CID member] looked surprised and offered to investigate. I made clear that following a medical examination, we were of the opinion that it had been a false allegation. Nonetheless the doctor had found some bruising to the man's shin and I thought I needed to raise this with him given the political sensitivities. I said that some returnees had a vested interest in exaggerating their stories, so the safest thing was for his officers to stay well beyond reproach."

    Mr Lewis says the offer to investigate was declined, but it suggests that the CID member was then unaware of the allegation and had in any event not made any link with the claimant. That may well be so, but the matter had very recently been picked up by the Sri Lankan authorities so that it is not particularly surprising that that CID member was then unaware of it. In any event, even if the BHC official turned down the offer, such investigation may well have taken place once the authorities were aware of the full details and of the involvement of FFT.

  35. There was a further meeting on 5 March 2012 with a police officer. The BHC official repeated in essence what had been said to the CID member. The purpose of raising the matter at the meetings is said by Mr Lewis to have been to remind the Sri Lankan authorities of the need to ensure that their officers should be seen to act beyond reproach, and that allegations of torture were taken seriously by BHC and investigated.
  36. I do not think those meetings were likely to have helped to identify the claimant as the person who had made the allegations. However, they did emphasise that they were regarded as unfounded so that if the authorities did decide to try to identify the claimant they would deal with him as a person who had made false allegations of torture and they would know that they had the support of BHC in asserting that they had been made and that they were false.
  37. A UKBA note of 7 March 2012 deals inter alia with returned asylum seekers. It records that in a letter of 5 January 2012 the BHC stated that, apart from two occasions no UK returnees had been held for more than 7 hours on arrival, none had been arrested and detained, and none had complained about their treatment on arrival by the authorities. The first of those involved the arrest of 6 returnees on a charter flight who were the subject of warrants for criminal offences. The second involved a returnee who, despite having a travel document issued by the Sri Lankan High Commission in London, alleged he was in truth an Indian national. That had to be investigated.
  38. Miss Rose makes the point that it was in the circumstances extraordinary that the claimant had been at the airport for 20 hours. She suggests that to say that it was initially because he had been waiting to be processed by the SIS for nearly 12 hours and then the checks by CID could not be completed until the relevant office opened in the morning was not credible. It must have been that there was suspicion that he was indeed a LTTE supporter who needed thorough investigation and so there was in any event an interest in him so that once the supposedly false torture allegation had been brought to the authorities' attention they would, if they could link them to the claimant, be concerned to apprehend him. BHC has perhaps too readily accepted that the delay was explained by a long queue and there was nothing more to it.
  39. The claimant's family has stated that in March visits were made to it by the authorities looking for the claimant and on the latter occasion accusing him of "spreading wrong information about the Sri Lankan government". On 16 March 2012 the claimant spoke over the telephone with Dr William Hopkins, a consultant psychiatrist. The claimant had visited a private hospital in Sri Lanka on 15 March but had declined its request that he admit himself for necessary treatment because, he said, he was concerned that he would not be safe. He described the medication he had been prescribed. It is medication appropriate for the treatment of PTSD. The medical report obtained when he was about to be removed diagnosed PTSD and Dr Hopkins was satisfied that his condition had deteriorated. This evidence is consistent with the claimant having a real fear that he was likely to be detained if found and ill-treated and a belief that he had been identified as the returnee who had made false allegations of torture. If his family's evidence is accepted, he clearly had been identified.
  40. The defendant argues that the evidence relating to the visits by the authorities and the continuing interest in the claimant is unacceptable. First, reliance is placed on the suggested falsity of the allegations of torture and bleeding from a head wound. Secondly, there was a visit by Mr Lewis and X to the claimant's family members' house on 13 March, where he spoke with the claimant's family members. It is said that they were informed that the claimant had travelled to Jaffna that morning with a family member. The family members in the house had no knowledge where he was nor was there any way of communicating with him. He did have a mobile phone but, he says following advice from the BHC when being taken to Colombo for the medical examination, he would not use it while in transit.
  41. The information as understood by Mr Lewis was, he says, inconsistent with the fears expressed since the journey to Jaffna involved passing two army check points. But it is said on the claimant's behalf that Mr Lewis and X misunderstood what was said. It was the claimant's family member not the claimant who had travelled to Jaffna. In any event, it is clear that he is now provided with what is regarded as a safe house and there can be no doubt that he is genuinely afraid of being located. There was a report from neighbours of a further visit to his family house looking for him. Mr Swift relies on the absence of any further visit to show that in reality there is no continuing interest in him. Since he was known not to be at the address, a further visit would not have been productive.
  42. Mr Lewis asserts that it has not come to the attention of the BHC that the claimant has been identified as the individual referred to in the 24 February letter. That takes the matter nowhere since there is no reason why the BHC should have been told. But he goes on to say that in his opinion, based on his experience of 4 years in Sri Lanka, it is very unlikely that the claimant had been identified. This is because, he says, the resources available are, as he puts it, far less modern and there is dependence on written records made by individual officers. Further, he says that few officers would have heard of FFT. I am afraid I find this singularly unimpressive in the light of the information contained in the letter of 24 February. That information was such that even the most cumbersome and out-dated methods available to the authorities would very easily have led to the identification of the claimant. I am satisfied that the Sri Lankan authorities are not as incompetent as Mr Lewis' statement would suggest.
  43. The claimant has produced statements from two experts who support his claim that if identified he will be likely to suffer detention and ill-treatment. It is said that there is a real revulsion against organisations such as FFT which are in Sinhalese circles (and so by the government) regarded as supportive of terrorism. Statements by the Minister who holds the Public Relations portfolio which indicated that he supported violence perpetrated against opponents of the regime are referred to. More significantly, one of the experts records that following a meeting of the Human Rights Council in Geneva, Sri Lankan observers informed the authorities of speeches made by human rights activists as 'proof of their betrayal of the country'. The defendant has criticised the experts' statements. I do not think it is necessary to reach any final conclusions. Suffice it to say that the observations on the government website clearly indicate that, if identified, the claimant is likely to be suspected of involvement in terrorism and so detained for the purpose of interrogation. Sri Lanka has a lamentable record of torture and ill-treatment of detainees.
  44. Initially judicial review was sought of the refusal to treat the representations made before removal as a fresh claim so that steps should be taken to return him from Sri Lanka. \thst claim was refused by Mitting J on 20 April 2012. He pointed out that, although the medical report did show that the immigration judge's findings were somewhat inadequate, it was a mixed blessing because it showed that the claimant had told her things which did not accord with his previous accounts. He found it a finely balanced question but, by a narrow margin, he decided to reject the claim. What had happened in Sri Lanka was before him but he decided that that should be the subject of fresh proceedings, particularly as at that stage the necessary evidence had not been finally assembled and there were complaints about inadequate disclosure by the defendant. Sullivan LJ refused an application for leave to appeal, saying that there was no reason why the relief sought, namely return to this country, could not be sought in a fresh claim.
  45. This claim was lodged on 24 May following the refusal by the defendant to take steps to achieve the claimant's return. There was much correspondence and various directions sought but in the end a rolled up hearing was ordered which should take place in September. The only additional feature was an item on an official Sri Lankan website on 1 June 2012 referring to the repatriation of a 'batch of failed asylum seekers'. This included the following statements:-
  46. "UK authorities deported them amidst efforts by pro-LTTE elements in the UK to prevent British authorities from carrying out deportation of Sri Lankans who have failed to qualify for asylum Related article: False torture claims of failed UK asylum seekers."

    This, Miss Rose submits, shows that the claimant is likely still to be a suspect and so, if found, to be detained. There is obvious force in that submission.

  47. In her Acknowledgement of Service, the defendant argued that her actions could not give rise to a public law claim and so the relief sought could not be granted. Mr Swift did not pursue that argument. Miss Rose relied on observations of Lord Bingham, CJ in R v Chief Constable of N Wales Police ex p Thorpe [1999] QB 396 at 410H. That case was a challenge to the disclosure by the police of information of convictions of the applicants for sexual offences on the ground that they were a risk to children. As a result of the disclosure, they had had to move from the caravan site where they were living. Having indicated that there was a general presumption that information should not be disclosed unless it was necessary in the public interest to do so, Lord Bingham said:-
  48. "When, in the course of performing its public duties, a public body (such as a police force) comes into possession of information relating to a member of the public, being information not generally available and potentially damaging to a member of the public if disclosed, the body ought not to disclose such information save for the purpose of and to the extent necessary for the performance of its public duty or enabling some other public body to perform its public duty This principle does not in my view rest on the existence of a duty of confidence owed by the public body to the member of the public, although it might well be that such a duty of confidence might in certain circumstances arise. The principle, as I think, rests on a fundamental rule of good public administration, which the law must recognise and if necessary enforce."

    The facts of a particular case will be crucial and if, in the exercise of a careful and bona fide judgment it is decided that the public interest requires disclosure, it is proper to make such "limited disclose as is judged necessary to achieve" the purpose for which disclosure is required (see p410F-G). The only gloss put upon this approach by the Court of Appeal was that before deciding on disclosure information should be sought from the person concerned. In this case that should have been from those representing him since he could hardly be asked.

  49. Mr Swift submits that the disclosure to the Tribunal was properly considered necessary. The details needed to be given in order to show what had been alleged against the findings made by the doctor who examined the claimant and thus that the allegations of torture were unfounded. The only error lay in not concealing the claimant's name, but that was not in the end to the claimant's prejudice since his name was redacted by the Tribunal. I do not doubt that it was appropriate to inform the Tribunal that allegations of torture had been made by a returnee (that being the information held by the defendant and her agent, the Treasury Solicitor), that they had been investigated and found not to be credible. But it should have been appreciated that it would create a risk of interest by the Sri Lankan authorities in the claimant probably leading to detention and so possible ill-treatment if it was known that he had made such allegations. The Tribunal should have been given the details on the basis that they must be kept confidential and any disclosure to the parties to the proceedings must also be kept confidential. Thus I have no doubt that the lack of safeguards in the disclosure was not only in all probability a breach of confidence having regard to what Mr Lewis had been told by Ms Sceats but failure of good administration as referred to by Lord Bingham, CJ in Thorpe.
  50. The claimant is not a 'member of the public' in that he is not a British citizen or within this country. But he was being returned to Sri Lanka because it was not accepted that he would be at risk there on return. Thus as it seems to me the defendant had an obligation not to do anything which was not necessary in the public interest or to fulfil a particular duty which put the claimant at risk. It was said by counsel that this is a unique case. I hope it is, but it properly recognises the very exceptional circumstances in which an alien who is not within the jurisdiction can have a valid public law claim, in relation to acts of a public body which are said to affect him adversely. Thus if the claimant can establish that he is indeed at risk of detention or ill-treatment, he is entitled to succeed.
  51. Mr Swift submitted that I should not find in the claimant's favour unless I was satisfied on the balance of probabilities that there was a serious risk of ill-treatment. Miss Rose argued that that was to set too high a hurdle and that the approach should be the same as it would have been had the claimant been within this country and his removal was in issue. If he had managed to leave Sri Lanka clandestinely and reach this country, that approach would clearly have applied in relation to any claim he made to stay here. It seems to me that Miss Rose is right. The question should be the same as is applicable in any asylum or humanitarian protection claim, namely has the claimant established a real risk of relevant action that would entitle him to refugee status or that would result in his ill-treatment. In this case the assertion that because he is supported by FFT and is making false allegations against the Sri Lankan authorities he is to be regarded as a terrorist does raise the distinct possibility that the Refugee Convention applies. However, I do not need to go into that further nor, as will become apparent, do I need to reach a final conclusion on the correct test to apply. Even if it is as Mr Swift submits, I am satisfied that a serious risk exists.
  52. Mr Swift submits that, since they are aware of the interest of the BHC in the claimant, the Sri Lankan authorities would not do anything to him which would be likely to sour relations and possibly affect the removal of failed asylum seekers. As I have already said, the record of the Sri Lankan authorities is very unsatisfactory. But it may well be regarded as proper to prosecute the claimant for making false allegations and so to detain him. Further, he had been, albeit he says unwittingly, recruited by the LTTE and so it may be that the Sri Lankan authorities could justify detention for the purpose of interrogation. Detention even without ill-treatment is an adverse effect of the disclosure and suffices in my view to justify a remedy.
  53. Miss Rose argued that the claimant could rely on a breach of his human rights. She suggested that the decision of the Supreme Court in R(Smith) v Oxfordshire Assistant Deputy Coroner [2011] 1 A.C.1, in which the court refused in general to apply the Human Rights Act out of the jurisdiction, was distinguishable. The decision of the ECtHR in Al-Skeini v UK (2011) 53 EHRR 18 does not approve the reasoning in Smith, but Smith remains binding for now. However, it is not necessary to decide whether the claimant can rely on the Human Rights Act since I am satisfied that he can obtain all that he needs without it.
  54. I have already said that I am satisfied that the Sri Lankan authorities could easily identify and have identified the claimant as the subject of the 24 February letter. I have rejected Mr Lewis' views on this. I appreciate that there are issues about the reliability of the claimant as a witness and of his mother. But there can be no doubt that he is at present being protected because he has a real fear, whether or not well-founded, of what the Sri Lankan authorities would do to him if they found him. Thus the real risk clearly in my view exists and, as I have indicated, even if the higher standard submitted by Mr Swift is appropriate, it is met.
  55. It follows that the claimant is entitled to relief. The precise nature of that relief will be decided when I have heard counsel.


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