Gj and Others (Post-Civil War: Returnees)

 
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[2013] UKUT 319 (IAC)

Upper Tribunal

(Immigration and Asylum Chamber)

THE IMMIGRATION ACTS

Before

UPPER TRIBUNAL JUDGE Gleeson

UPPER TRIBUNAL JUDGE Dawson

UPPER TRIBUNAL JUDGE O'Connor

Between
GJ
NT
MP
Appellants
and
The Secretary of State for the Home Department
Respondent
Representation:

For the First Appellant : Miss Shivani Jegarajah and Mr Iain Palmer, instructed by Patricks solicitors.

For the Second Appellant: Mr Rudolph Spurling and Miss Sara Anzani, instructed by Dean Manson Solicitors

For the Third Appellant: Mr Alasdair Mackenzie and Miss Alison Pickup, instructed by Birnberg Peirce & Partners, solicitors

For the Interested Party: Miss Shivani Jegarajah and Mr Colin Yeo instructed by Duncan Lewis, solicitors

For the Respondent: Mr Jonathan Hall and Mr William Hays, instructed by The Treasury Solicitor

GJ and others (post-civil war: returnees) Sri Lanka CG

  • (1) This determination replaces all existing country guidance on Sri Lanka.

  • (2) The focus of the Sri Lankan government's concern has changed since the civil war ended in May 2009. The LTTE in Sri Lanka itself is a spent force and there have been no terrorist incidents since the end of the civil war.

  • (3) 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 (a) the resurgence of the LTTE or any similar Tamil separatist organisation and (b) 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.

    • (10) Consideration must always be given to whether, in the light of an individual's activities and responsibilities during the civil war, the exclusion clauses are engaged (Article 1F of the Refugee Convention and Article 12(2) of the Qualification Directive). Regard should be had to the categories for exclusion set out in the “Eligibility Guidelines For Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka”, published by UNHCR on 21 December 2012.

DETERMINATION AND REASONS

1. The first appellant appeals against a decision to refuse him leave to enter the United Kingdom. The second and third appellants appeal against decisions of the Secretary of State to remove them to Sri Lanka. Each appellant appeals on Refugee Convention, humanitarian protection and human rights grounds. This determination is one to which all three members of the panel have contributed.

2. The changes which have taken place in Sri Lanka since the end of the civil war in May 2009 are complex. We have had access to a wide range of oral and written documents and expertise to assist us in re-assessing who is at risk today if returned to Sri Lanka. We have had the advantage of hearing from many highly qualified witnesses with knowledge of circumstances in Sri Lanka now and of events since May 2009, and of receiving over 5000 pages of documentary evidence, in written and electronic form.

3. We would like to record our gratitude to counsel, to those instructing them, and to the expert and country witnesses, for the research they carried out, for full and helpful submissions, and for their help in assembling the evidence to enable the Tribunal to give new country guidance on Sri Lanka. The present determination is necessarily a long one, but we have sought to maintain clarity by dealing with certain parts of the evidence more fully in appendices and summarising it in the main body of the determination.

4. In view of the length and perceived significance of this decision, at our request, all of the Counsel in the appeal considered the final draft (under embargo) before it was published and made helpful suggestions in relation to typing corrections and other obvious errors. They were also asked to indicate any anonymity concerns in the determination as drafted: no such concerns were raised.

5. The appeals were identified as suitable for country guidance in relation to the present situation in Sri Lanka. The most recent Sri Lanka country guidance is that of the Asylum and Immigration Tribunal in TK (Tamils, LP updated) Sri Lanka CG [2009] UKAIT 00049 based on materials up to and including 26 October 2009, just five months after the civil war ended in May 2009. The guidance in TK updated and incorporated country guidance given by the AIT in LP (LTTE area – Tamils – Colombo – risk?) Sri Lanka CG [2007] UKAIT 00076 and approved by the European Court of Human Rights (ECtHR) in NA v UK, No 25904/07 [2011] ECHR 1272, and more recently in E.G. v. The United Kingdom - 41178/08 [2011] ECHR 846.

6. The civil war in Sri Lanka ended on 19 May 2009 after more than 25 years of conflict, involving tens of thousands of deaths and casualties and serious damage to the infrastructure in the Northern and Eastern Provinces, where the conflict was most fierce. At the end of the civil war, about 160,000 Tamils were unaccounted for, but as in any conflict zone, there are real difficulties in establishing how reliable any such statistics may be. The LTTE within Sri Lanka is a spent force and the government has full control over the whole of Sri Lanka.

7. The evidence before us indicates that the Sri Lankan government is determined to ensure that Tamil separatism and the conflict it brought never recur. The government's intention is being carried into effect by an intensive militarisation and Sinhalisation of former Tamil areas, “rehabilitation” of 11,000 former LTTE cadres, and intelligence-led monitoring and supervision of Tamil activities, both within Sri Lanka and in the diaspora.

The appellants

8. The three appellants are Tamils, all with LTTE links. Their names are anonymised in this determination.

  • 1. The basis of the first appellant's account is that he came from a family of LTTE loyalists; his sister was a member of the Movement's inner circle, acting as medical adviser to its late leader, Thiruvenkadam Velupillai Prabhakaran, whose death on 18 May 2009 ended the civil war. The appellant was recruited in May 2007 and served until the end of the civil war. He was detained twice, once as a civilian, and the second time, because of his family connections. He has torture scars.

  • 2. The basis of the second...

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