The UK Upper Tribunal has rewritten its previous guidance on the approach to be taken to Tamils seeking asylum in the UK. This will provide a new guidance in deciding asylum case in the UK. The ‘twelve risk factors’ which previously formed the framework for considering cases have effectively been discarded. Instead, the Tribunal has identified four categories of person who are generally considered to be at risk. These are essentially: people who are heavily involved in activities in the Tamil diaspora (although not people who have simply attended demonstrations); journalists and human rights activists; individuals who have given evidence to the Lessons Learned and Reconciliation Commission implicating the Sri Lankan security forces in alleged war crimes; and people who appear on a ‘stop’ list at Colombo Airport, which means those against whom there is an outstanding court order or arrest warrant.
In addition the Tribunal agrees with the view of UNHCR that, in the case of people who are known or suspected by the GoSL to be former LTTE members, a full investigation is required into whether they are at risk of being persecuted. The Tribunal approves evidence suggesting that former LTTE members are detained for “rehabilitation” or prosecution by the authorities. The Tribunal also overturns earlier assumptions by the Home Office that it is not possible to use bribery in order to escape from detention or to leave Sri Lanka via Colombo Airport. It also accepts that mental health treatment is inadequate and allows the appeal of one of the appellants on the basis that he would not receive proper treatment for his serious mental health condition.
Commenting on the situation in Sri Lanka, the tribunal said the legal basis for the Sri Lankan government’s detention of 11,000 former Tamil Tiger fighters at the end of the war was unclear. Some detainees, it said, had been kept for as long as four years without any judicial supervision.
The ruling also described an ongoing Sinhalisation process to dilute Tamil strongholds and increased militarisation in the North of Sri Lanka, with Sinhala soldiers reportedly being offered large cash incentives to settle in Tamil areas and have a third child. The tribunal said the Sri Lankan army operated civilian businesses, hotels, restaurants, farms, shops and tourism and was now bigger in size than the British army. It described Tamil areas of the north-east as “in effect occupied territory, with one soldier for every five members of the population”.
In terms of current human rights abuses, the UK ruling said, “year on year, the number of such disappearances is increasing during the peace, rather than decreasing”.
The Upper tribunal sets out;
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 enshrined in Amendment 6(1) to the Sri Lankan Constitution in 1983, which prohibits the ‘violation of territorial integrity’ of Sri Lanka. Its focus is on preventing both(2) the resurgence of the LTTE or any similar Tamil separatist organisation and(3) the revival of the civil war within Sri Lanka.
(4) If a person is detained by the Sri Lankan security services there remains a real risk of ill-treatment or harm requiring international protection.
(5) Internal relocation is not an option within Sri Lanka for a person at real risk from the Sri Lankan authorities, since the government now controls the whole of Sri Lanka and Tamils are required to return to a named address after passing through the airport.
(6) There are no detention facilities at the airport. Only those whose names appear on a “stop” list will be detained from the airport. Any risk for those in whom the Sri Lankan authorities are or become interested exists not at the airport, but after arrival in their home area, where their arrival will be verified by the CID or police within a few days.
(7) The current categories of persons at real risk of persecution or serious harm on return to Sri Lanka, whether in detention or otherwise, are:
(a) Individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they are, or are perceived to have a significant role in relation to post-conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka.
(b) Journalists (whether in print or other media) or human rights activists, who, in either case, have criticised the Sri Lankan government, in particular its human rights record, or who are associated with publications critical of the Sri Lankan government.
(c) Individuals who have 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. Among those who may have witnessed war crimes during the conflict, particularly in the No-Fire Zones in May 2009, only those who have already identified themselves by giving such evidence would be known to the Sri Lankan authorities and therefore only they are at real risk of adverse attention or persecution on return as potential or actual war crimes witnesses.
(d) A person whose name appears on a computerised “stop” list accessible at the airport, comprising a list of those against whom there is an extant court order or arrest warrant. Individuals whose name appears on a “stop” list will be stopped at the airport and handed over to the appropriate Sri Lankan authorities, in pursuance of such order or warrant.
(8) The Sri Lankan authorities’ approach is based on sophisticated intelligence, both as to activities within Sri Lanka and in the diaspora. The Sri Lankan authorities know that many Sri Lankan Tamils travelled abroad as economic migrants and also that everyone in the Northern Province had some level of involvement with the LTTE during the civil war. 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.
(9) The authorities maintain a computerised intelligence-led “watch” list. A person whose name appears on a “watch” list is not reasonably likely to be detained at the airport but will be monitored by the security services after his or her return. If that monitoring does not indicate that such a person is a Tamil activist working to destabilise the unitary Sri Lankan state or revive the internal armed conflict, the individual in question is not, in general, reasonably likely to be detained by the security forces. That will be a question of fact in each case, dependent on any diaspora activities carried out by such an individual.