MATHIYALAGAN SELVARATNAM v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PETER GIBSON,LORD JUSTICE BUXTON,LORD JUSTICE MAY |
| Judgment Date | 27 January 2003 |
| Neutral Citation | [2003] EWCA Civ 121 |
| Docket Number | C1/2002/2119 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 January 2003 |
[2003] EWCA Civ 121
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN IMMIGRATION APPEAL TRIBUNAL
Royal Courts of Justice
Strand
London, WC2
Lord Justice Peter Gibson
Lord Justice Buxton
Lord Justice May
C1/2002/2119
MISS NICOLA ROGERS (instructed by Messrs Ratna & Co, London E6 1JB) appeared on behalf of the Appellant
MR P PATEL (instructed by Treasury Solicitor, London SW1H 9JS) appeared on behalf of the Respondent
Monday, 27th January 2002
I will ask Buxton LJ to give the first judgment.
This is an appeal from a determination of the Immigration Appeal Tribunal, who itself had allowed an appeal by the Secretary of State from the decision of an adjudicator in the asylum application of the applicant, Mr Selvaratnam, who is a citizen of the Republic of Sri Lanka.
The adjudicator, who heard the application and had the benefit of hearing Mr Selvaratnam give evidence and be cross-examined, made a series of important findings with regard to his previous experience with the authorities in Sri Lanka. First of all, the applicant was arrested and tortured in 1995 and 1996 because of his associations with what are colloquially called the Tamil Tigers ("the LTTE"). On that occasion he was released because no connection with the LTTE could be established and his parents bribed the authorities to release him. He had no further problems with the authorities until 13th November 2000, when he was arrested for a second time. It appears that information about him had been provided by some of his former schoolmates who themselves, the applicant believed, had been tortured in order to obtain that information. That information confirmed that he had indeed worked for the LTTE, albeit not being apparently a member of that organisation, in 1994 and 1995. He was held for two months and was tortured until he agreed to sign two papers. One was in Singalese —he believed it to be a confession of some kind, although he was not able to read it —the other was a blank sheet of paper. He was detained and forced work for the Army on the basis that he was involved with the LTTE. After about two months, that is to say in January or February 2001, he succeeded in escaping and reached this country by clandestine routes —not by any agreement of the authorities in Sri Lanka —in September 2001, and immediately claimed asylum.
The adjudicator, as I have said, accepted all of that evidence as being correct and reliable. It amounted, as will have been seen, to a finding that the applicant was both someone who had been identified by the authorities in Sri Lanka as involved with the LTTE; and also somebody who had been arrested on that score and tortured very recently —that is to say within the previous 18 months —and had also clandestinely and unlawfully escaped.
The adjudicator concluded on the objective evidence before him that if the applicant were returned to Sri Lanka he would be arrested, not least on the grounds that the CID of that country take into custody people returning who are thought to have committed a criminal act before leaving Sri Lanka. That finding was made by the adjudicator at paragraph 21 of his adjudication. The adjudicator also found that if the applicant were detained:
"… it is clear to me that there are substantial grounds that there is a real risk that the appellant would be tortured on his return to Sri Lanka. He will be of interest to the authorities there, and as such is likely to be detained. There is substantial evidence about the likelihood of torture against political detainees in Sri Lanka."
Faced with those findings the adjudicator allowed the appeal and discharged the certificate that had been issued by the Secretary of State.
The Secretary of State appealed to the Immigration Appeal Tribunal. The basis of that appeal and the ground upon which permission was granted by the Appeal Tribunal was effectively that there had been a change of circumstance and attitudes in Sri Lanka, such that persons such as the applicant were no longer at risk if they were to be returned to that country. That submission was based upon a fact-finding report of a visit to Sri Lanka in March 2002, supported by interviews with persons concerned in the operation of the criminal justice system in Sri Lanka, and views of the United Nations High Commission for Refugees; together with a detailed report dated 2002, as a result of that visit, produced by the Counter Information and Policy Unit of the Home Office. The burden of the case that was based upon that report was that persons returning to Sri Lanka were no longer automatically at risk in the way in which they had been...
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