T.H.S. v. THE UNITED KINGDOM
Inadmissible
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva
1. The applicant, Mr T.H.S, is a Sri Lankan national, who was born in 1979 and lives in Ilford. The President granted the applicant’s request for his identity not to be disclosed to the public (Rule 47 § 4). He is represented before the Court by Ms V. Muruhathas, a lawyer practising in London. 3. The applicant, of Tamil ethnicity, ran an electronics shop in Sri Lanka. On 1 May 2006 a bomb exploded on the street near his shop. He was arrested by the Sri Lankan army on suspicion of being involved in the explosion because the bomb had been detonated remotely and his electronics skills made him a suspect. 4. The applicant was detained by the Sri Lankan authorities for six weeks before being released without charge. He claims that he was interrogated about his links to the Liberation Tigers of Tamil Eelam (“the LTTE” or “Tamil Tigers”) and ill-treated and tortured by Sri Lankan soldiers. He subsequently left Sri Lanka with the assistance of an agent on his own passport. He came to the United Kingdom via Dubai and Mauritius. 5. The applicant arrived in the United Kingdom on 30 November 2006 and claimed asylum on the same day. 6. On 11 April 2007 the Secretary of State refused his asylum application. 7. On 23 May 2007 the Asylum and Immigration Tribunal (“AIT”) dismissed his appeal as not credible on the basis of the inconsistencies in his various accounts. Specifically, the AIT commented that aspects of his account were “garbled” and “difficult to follow”. 8. On 3 July 2007 a senior immigration judge refused his application for reconsideration. 9. The applicant obtained a medical report dated 15 January 2008. The report concluded that the applicant’s account of his scarring was consistent with what he claimed had happened to him in Sri Lanka. In particular, the medical report concluded that the tramline scars on his back made it difficult to consider any innocent explanation for his injuries because they could not have been self-inflicted. The report stated that the applicant’s symptoms fulfilled the diagnostic criteria for post-traumatic stress disorder. 10. In 2010 the applicant submitted further representations to the Home Office on the basis of the medical report. 11. On 17 September 2010 the Secretary of State refused asylum on the basis of the fresh representations. She did not accept the conclusions of the medical report. The applicant was granted a further in-country right of appeal before the First-tier Tribunal (Asylum and Immigration Chamber) (“the Tribunal”). 12. On 19 November 2010 the Tribunal dismissed the applicant’s appeal. The judge accepted the findings of the medical report and was therefore satisfied that the applicant had been ill-treated while detained by the Sri Lankan army in 2006. However, he observed that the applicant had later been released by the Sri Lankan authorities without charge and had not been asked to attend court or report to the authorities. The judge therefore concluded that the Sri Lankan authorities had had no further adverse interest in the applicant after his detention. This was consistent with the fact that the applicant had been able to leave Sri Lanka in 2006 on his own passport without being picked up by the Sri Lankan authorities. 13. The judge further considered and applied the risk factors set out in the country guidance case of TK (Tamils, LP updated) Sri Lanka CG (see paragraphs 50-51 below). He found that the applicant would not be at risk upon return as a young Tamil male who had been detained by the Sri Lankan authorities and ill-treated in 2006. Although he accepted that past ill-treatment could be a guide to future risk, he did not agree that the applicant would be at risk of ill-treatment upon return to Sri Lanka. His previous record and “extensive scarring” were relevant risk factors but, on balance, the fact that he had been released without charge by the army in 2006 and had been able to leave Sri Lanka on his own passport was more significant because the authorities would not have released him unless they had not wanted him anymore. The judge therefore concluded that the applicant’s removal to Sri Lanka would not breach Article 3 of the Convention. 14. The applicant did not apply for permission to appeal to the Upper Tribunal. 15. In March 2011 the applicant was detained by the United Kingdom Border Agency (“UKBA”) to effect his removal to Sri Lanka. 16. On 17 and 23 March 2011 the applicant submitted further representations to the Home Office including an update of the general human rights situation in Sri Lanka and a reference to a purported Sri Lankan arrest warrant dated 12 January 2011 supported by a letter from a Sri Lankan lawyer attesting its validity. 17. On 12 May 2011 the applicant was interviewed by Sri Lankan High Commission officials at an immigration removal centre. He claims that they asked him questions about his asylum claim; that it was clear that they were aware of his past suspected LTTE membership and his arrest and detention in Sri Lanka; and that they accused him of having been involved in a bomb blast in 2006. 18. On 19 May 2011 the Secretary of State refused the applicant’s representations and did not accept that they amounted to a fresh asylum claim. She relied substantially upon the November 2010 findings of the First-tier Tribunal (see paragraphs 12-13 above) and concluded that the applicant was of no adverse interest to the Sri Lankan authorities and would not be at risk of ill-treatment on return. She further considered that the arrest warrant had been presented solely in an attempt to frustrate his removal and was not genuine given, inter alia, its failure to provide information of the alleged details for which the applicant was said to be wanted by the authorities; the timing of its production; the difficulty for accused persons in Sri Lanka to obtain copies of arrest warrants; the ease with which such documents could be fabricated; and the fact that there was nothing in the applicant’s past to suggest that he would be wanted by the authorities. 19. In conclusion, the Secretary of State accepted that the applicant was a Tamil who had been suspected in 2006 of some LTTE involvement after a bomb had exploded near his shop. However, considering all of the risk factors set out in LP (LTTE area – Tamils – Colombo – risk?) Sri Lanka CG and TK (see paragraphs 50-51 below), she did not accept that he would be at real risk of Article 3 treatment upon return to Sri Lanka. 20. On 31 May 2011 the applicant issued judicial review proceedings seeking to challenge the Secretary of State’s decision of 19 May 2011 that his further representations did not constitute a fresh claim for the purposes of paragraph 353 of the Immigration Rules (see paragraph 46 below). 21. On 6 June 2011 the applicant was served with removal directions to Sri Lanka set to take place on a charter flight on 16 June 2011. 22. On 15 June 2011 the applicant applied to the High Court for an order staying his removal until his application for permission to apply for judicial review had been decided. He also filed supplementary grounds of judicial review, including a claim that the Secretary of State had failed adequately to consider the arrest warrant; that UKBA had transmitted personal data and details regarding failed asylum seekers to the Sri Lankan High Commission; and that in light of the transmission of such information he would be at additional risk of ill-treatment, since he would be returning to Sri Lanka as an individual with an accepted history of torture and the date of his return on a charter flight would be known to the Sri Lankan authorities. 23. On 16 June 2011 the applicant’s representatives submitted an application under Rule 39 of the Rules of Court to stop his removal to Sri Lanka. On the same day the Acting President applied Rule 39 to stop the applicant’s removal to Sri Lanka. The Judge appointed as Rapporteur under Rule 49 § 2 of the Rules of Court asked the Government of the United Kingdom, under Rule 49 § 3 of the Rules of Court, to confirm whether the Sri Lankan authorities had been informed that the applicant had made an asylum application in the United Kingdom and whether any documents or details pertaining to his asylum application had been provided to the Sri Lankan authorities. 24. Also on 16 June 2011 the High Court granted a stay on removal until determination of the application for permission to apply for judicial review. 25. By letter dated 1 July 2011 the Agent of the Government of the United Kingdom informed the Court that a document had been inadvertently passed to the Sri Lankan High Commission in London which would have alerted the Sri Lankan authorities to the fact that the applicant had previously claimed asylum in the United Kingdom. However, the document had not contained any details of the nature of the applicant’s asylum claim and had only provided the date of the asylum claim and the date that the applicant had exhausted his appeal rights following that unsuccessful asylum claim. The Government requested that the Court lift the interim measure under Rule 39 of the Rules of Court. 26. On 26 August 2011 the Acting President refused the Government’s request to lift the interim measure under Rule 39 of the Rules of Court and adjourned the application pending the conclusion of the judicial review proceedings. 27. On 2 September 2011 the High Court refused the applicant’s application for permission to apply for judicial review on the papers. It found the Secretary of State’s decision of 19 May 2011 to be comprehensive and well-reasoned. 28. The applicant renewed his application for permission, relying on the existence of the arrest warrant, the disclosure of his asylum claim to the Sri Lankan authorities and his interview with the Sri Lankan officials to claim a risk to him of ill-treatment on return to Sri Lanka. 29. A rolled up hearing (i.e. a hearing where, if permission to apply is granted, the hearing on the merits immediately follows) on the judicial review application took place on 15 May 2012. The High Court granted the applicant’s renewed application for permission to apply for judicial review but rejected the application on the merits. 30. As regards the disclosure to the Sri Lankan High Commission, the court noted that the Secretary of State had accepted that the disclosure of the form, intended to be an internal checklist of data relating to the applicant, was in contravention of section 13(3) of the Immigration and Asylum Act 1999 (see paragraph 49 below) because it included reference to the fact that the applicant had claimed asylum in the United Kingdom and provided the date of the asylum claim and the date that his final appeal had been dismissed. However, the High Court did not accept that the disclosure had been deliberate, and noted that there was no suggestion that any details of the applicant’s asylum interview or documents linking him or his family to the LTTE had been disclosed. The court considered that the document which had been disclosed told the Sri Lankan authorities very little. The court rejected the argument that unlawful disclosure would automatically invalidate any later decision to set removal directions. The question was whether the disclosure changed the applicant’s risk profile so as to amount to a fresh claim. In this respect, the court pointed to country evidence suggesting that the situation seemed more relaxed than before and noted that even in 2007 the majority of returned failed asylum seekers were processed relatively quickly and with no difficulty beyond some possible harassment. 31. As regards the arrest warrant, the court acknowledged that its existence was potentially very significant because it might show that the Sri Lankan authorities had a continuing adverse interest in the applicant, contrary to the November 2010 findings of the Tribunal (see paragraphs 1213 above). If that were the case, the court said, it would undoubtedly give rise to a realistic prospect of success in any further appeal. The court went on to say that the warrant was a very strange document, since it appeared to relate to proceedings started in 2006 and, in the section detailing the particulars of the alleged offence or reasons for the warrant, referred only to a failure to appear before court. The accompanying lawyer’s letter explained that the warrant was “in respect of his absconding from detention”. Yet, the High Court commented, nobody had ever suggested that the applicant had absconded from detention or had failed to appear at court. The High Court further noted that there was absolutely no evidence of any attempt to execute this or any previous warrant, of any questioning or harassment of the applicant’s family in Sri Lanka, or anything else to suggest that the warrant really was a live document which provided valuable evidence about the likely treatment of the applicant if he were returned to Sri Lanka. The court also observed that the date of the warrant appeared fortuitous, since the judge in the applicant’s previous appeal had commented that the absence of any warrant was a significant feature and the warrant was dated shortly after that judgment. 32. Finally, as to the interview of the applicant by the Sri Lankan High Commission officials, the court observed that the officials had not seemed to be aware of the existence of an arrest warrant against him (even though they must have made inquiries about him because they had asked him about his involvement in the bomb blast near his shop) and they had failed to raise any details of any alleged absconding from detention or failure to appear before a Sri Lankan court. Indeed, the officials had appeared to reassure the applicant that they had rehabilitated LTTE members and that all the problems in Sri Lanka had been solved. 33. Having regard to all of the above, and even bearing in mind the potential significance of the arrest warrant and the presumption which lay behind the prohibition in section 13 of the Immigration and Asylum Act 1999 that mere disclosure of the fact that a person was a failed asylum seeker might expose him to an increased risk, the High Court found that there was no change to the risk to the applicant if returned to Sri Lanka. 34. The parties subsequently submitted written observations to the Court on the admissibility and merits of the case. 35. In their further observations, the Government requested the Court to adjourn the proceedings. They explained that a new country guidance case concerning Sri Lanka (GJ and others (post-civil war: returnees) Sri Lanka CG – see paragraphs 52-54 below) was pending before the Upper Tribunal. 36. On 30 April 2013 the President of the Section decided to adjourn the examination of the case pending the outcome of the proceedings in GJ and Others. 37. On 5 July 2013 the Upper Tribunal delivered its decision in GJ and Others. The Government subsequently informed the Court that they would review the applicant’s case in light of that determination. 38. On 4 November 2013 the Secretary of State informed the applicant that she did not consider his case to fall within any of the risk categories identified in GJ and Others and that she did not therefore accept that he would be at any real risk of ill-treatment on return to Sri Lanka. In particular, she emphasised that the Upper Tribunal in GJ and Others had not found that all Tamils, all failed asylum seekers or all students were at risk on return, or that past LTTE membership was sufficient to establish a risk. She noted that any risk facing a returnee had to be assessed by reference to the current objectives of the Government of Sri Lanka, who were mainly concerned with individuals who posed a threat to the stability of postconflict Sri Lanka. The Secretary of State expressed the view that the applicant would be “of little or no interest” to the Government of Sri Lanka and that he would accordingly not risk arrest or detention if returned. She remarked that he had not provided evidence of any outstanding arrest warrant or court order that would indicate that he was included on the Government’s “stop list” and lead to his detention for questioning upon arrival at Colombo airport. Similarly, there was no evidence of his inclusion in a “watch list” that would lead to monitoring in his home area. 39. By letter to the Court dated 17 December 2013 the Government confirmed that the applicant’s case had been reviewed and that he had been notified on 4 November 2013 that his asylum claim had been rejected. They confirmed that it was open to the applicant to bring judicial review proceedings in respect of the decision. By letter dated 13 January 2014 the Court invited the applicant’s representative to confirm by 3 February 2014 whether he intended to seek judicial review of the decision and, if not, why not. 40. By reply dated 31 January 2014 the applicant’s representative requested a stay of proceedings pending consideration of the domestic proceedings. She explained that he had not received notification of the 4 November decision. The Court invited her to provide an update by 11 March 2014 and, in particular, to confirm whether judicial review proceedings had been brought. 41. By letter dated 11 March 2014 the applicant’s representative informed the Court that she was still awaiting a copy of the letter of 4 November 2013. However, she invited the Court to proceed to examine the applicant’s complaints. She was asked by the Court to confirm by 17 April 2014 whether judicial review proceedings had been brought. By reply dated 17 April 2014, she confirmed that no judicial review application had been made. 42. In response to an invitation by the Court, the applicant and the Government provided updated submissions on 27 May 2014. 43. Sections 82(1) and 84(1) of the Nationality, Immigration and Asylum Act 2002 provide a right of appeal against an immigration decision made by the Secretary of State for the Home Department, inter alia, on the grounds that the decision is incompatible with the Convention. 44. Until 14 February 2010 appeals in asylum and immigration were heard by the AIT. Section 103A of the 2002 Act provided that a party could apply for an order from the High Court requiring the AIT to reconsider its decision on the grounds that it had made an error of law. At the relevant time, all applications for reconsideration went through a “filter procedure”, so that it was first made to an authorised immigration judge of the AIT. If the immigration judge refused to make an order for reconsideration, the applicant was able to renew the application to the High Court, which would consider the application afresh. 45. Since 15 February 2010, appeals in asylum and immigration have been heard by the First-tier Tribunal (Immigration and Asylum Chamber). Section 11 of the Tribunals, Courts and Enforcement Act 2007 provides a right of appeal to the Upper Tribunal, with the permission of the First-tier Tribunal or the Upper Tribunal, on a point of law. 46. Paragraph 353 of the Immigration Rules provides that further submissions made after an asylum claim has been determined will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content: (i) has not already been considered; and (ii) taken together with the previously considered material, creates a realistic prospect of success. 47. Until 8 August 2011 a claimant could lodge with the High Court an application for judicial review of a decision by the Secretary of State not to treat further representations as a fresh claim. Pursuant to Chapter 54 of the Civil Procedure Rules (“CPR”), permission is required before a judicial review claim can proceed. If the High Court refuses permission on the papers, the claimant can request reconsideration at an oral hearing. The court may order an oral hearing for permission with arguments on the substantive merits of the claims to be heard immediately at the hearing if permission is granted (a rolled up hearing). 48. Rule 52.3 CPR provides that if the High Court grants permission but refuses the application for judicial review on the merits, the claimant can apply for permission to appeal to the Court of Appeal. An application for permission to appeal can be made to the High Court or the Court of Appeal. If an application is made to the High Court, a further application can be made to the Court of Appeal. If the Court of Appeal refuses the application on the papers, the claimant can request a hearing unless the case has been found to be totally without merit. 49. Section 13 of the Immigration and Asylum Act 1999 provides, inter alia, as follows: “(1) This section applies if a person– (a) is to be removed from the United Kingdom to a country of which he is a national or citizen; but (b) does not have a valid passport or other document establishing his identity and nationality or citizenship and permitting him to travel. (2) If the country to which the person is to be removed indicates that he will not be admitted to it unless identification data relating to him are provided by the Secretary of State, he may provide them with such data. (3) In providing identification data, the Secretary of State must not disclose whether the person concerned has made a claim for asylum.” 50. The country guidance case-law applicable at the time of the proceedings in 2010-2012 was set out in LP (LTTE area – Tamils – Colombo – risk?) Sri Lanka CG [2007] UKAIT 00076 (subsequently endorsed by this Court in NA. v. the United Kingdom, no. 25904/07, § 95, 17 July 2008) and TK (Tamils – LP updated) Sri Lanka CG [2009] UKAIT 00049. The findings in both cases are set out in detail in the Court’s judgment in E.G. v. the United Kingdom, no. 41178/08, §§ 13-16, 31 May 2011. 51. In short, the risk factors identified in LP and confirmed in TK were the following: (1) Tamil ethnicity; (2) a previous record as a suspected or actual LTTE member; (3) a previous criminal record and/or outstanding arrest warrant; (4) bail jumping and/or escaping from custody; (5) having signed a confession or similar document; (6) having been asked by the security forces to become an informer; (7) the presence of scarring; (8) return from London or other centre of LTTE fundraising; (9) illegal departure from Sri Lanka; (10) lack of an ID card or other documentation; (11) having made an asylum claim abroad; (12) having relatives in the LTTE. 52. On 5 July 2013 the Upper Tribunal promulgated its decision in GJ and others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) (“GJ”). In its judgment, the Upper Tribunal concluded that the focus of the Sri Lankan government’s concern had changed since the civil war ended in May 2009. It said: “The LTTE in Sri Lanka itself is a spent force and there have been no terrorist incidents since the end of the civil war. The government’s present objective is to identify Tamil activists in the diaspora who are working for Tamil separatism and to destabilise the unitary Sri Lankan state ... Its focus is on preventing both (a) the resurgence of the LTTE or any similar Tamil separatist organisation and (b) the revival of the civil war within Sri Lanka.” 53. The Upper Tribunal accepted that if a person was detained by the Sri Lankan security services there remained a real risk of ill-treatment or harm requiring international protection. In summary, the Tribunal identified the following risk factors: (1) individuals perceived to be a threat to the integrity of Sri Lanka because they were perceived to have a significant role in relation to postconflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka. (2) Journalists or human rights activists who had criticised the Sri Lankan government, in particular its human rights record, or who were associated with publications critical of the Sri Lankan government. (3) Individuals who had given evidence to the Lessons Learned and Reconciliation Commission implicating the Sri Lankan security forces, armed forces or the Sri Lankan authorities in alleged war crimes. (4) Individuals whose names appeared on a computerised “stop” list (a list of those against whom there was an extant court order or arrest warrant) accessible at the airport. 54. The Tribunal explained that the Sri Lankan authorities’ approach was based on sophisticated intelligence, both as to activities within Sri Lanka and in the diaspora. It noted that the Sri Lankan authorities were aware that many Sri Lankan Tamils travelled abroad as economic migrants and also that everyone in the Northern Province had had some level of involvement with the LTTE during the civil war. It continued: “In post-conflict Sri Lanka, an individual’s past history will be relevant only to the extent that it is perceived by the Sri Lankan authorities as indicating a present risk to the unitary Sri Lankan state or the Sri Lankan Government.”