Statement: UK asylum Country Guidance on Sri Lanka

By Together Against Genocide (TAG, formerly Tamils Against Genocide), Saturday, July 06 2013
TAG Statement
6 July 2013

New country guidance asylum determination on Sri Lanka
 
Yesterday, 5 July 2013, the Upper Tribunal of the Immigration and Asylum Chamber promulgated its determination in the case between GJ, NT and MP, and the Secretary of State for the Home Department, in which Tamils Against Genocide [TAG] was an Interested Party.
 
The Determination re-writes the country guidance on Sri Lanka. The previous country guidance, now obsolete, dates from 2009, it was not fit for purpose. That a wholesale reassessment of the risk to Tamils in Sri Lanka was long overdue was recognized in the High Court Judgment that halted all charter flights of failed asylum seekers back to Sri Lanka until the country guidance case was determined.  The tribunal confirmed this reassessment “we consider that the change in the GOSL’s approach is so significant that it is preferable to reframe the risk analysis for the present political situation in Sri Lanka. “ [Para 356]
 
The Sri Lankan civil war (Tamil Eelam IV) ended in 2009, the Tamil Tigers were decimated, but the conflict continues, the violence perpetrated against the Tamil population, against Tamil civilians and former combatants in the final stages of the war did not end on May 18th, 2009. Persecution, repression, denial of rights and identity characterize life in Sri Lanka in the North and East for Tamils. What is more difficult for the Sri Lankan state is forcibly silencing the Tamil diaspora, who lie for the most part physically out of reach. It is from abroad, from this diaspora, that the Sri Lankan State now conceives the biggest threat to lie. These facts are recognized by the Tribunal, which found, “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…
 
... 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. “ [Emphasis added, Para 356]
 
Thus the new categories of persons at real risk of persecution or serious harm on return to Sri Lanka, whether in detention or otherwise, include
 
(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)     Witnesses: “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.”
 
TAG’s Advocacy Manager Hettie Briscoe said of the ruling:
 
“Broadly we welcome this determination which marks a sea change from previous guidance.
 
In it the Tribunal recognizes that the Sri Lankan state is extremely repressive and that-those who actively speak out against this repressive state, who call for accountability for war crimes and genocide, or who believe the ethnic conflict can be solved by the creation of an independent Tamil state are at risk of persecution including torture.
 
We are however disappointed that our extensive data on torture of returnees from the UK to Sri Lanka has been excluded from consideration on legal technicalities.
 
The British government has already been criticized at the UN for failing to disclose and analyse all the evidence of torture in its possession. We are seeking advice on appealing the exclusion of facts established in lower court determinations and on alternative legal remedies to the governments failure to analyse and disclose all the data in its possession”
 
We take this opportunity to thank expert witnesses who testified orally on behalf of TAG - No Fire Zone Director Callum Macrae, Dr David Rampton of the LSE and Dr Suthaharan Nadarajah from SOAS.  The Tribunal noted their contributions. “We are indebted to TAG for making available additional experts, evidence and argument which would not otherwise have been before us” (Para 12).
Contrary to what is stated in the Determination at Para 99, TAG’s witnesses were not paid, but acted on a pro bono basis. We will be seeking a correction of this in the determination.   

We are indebted to our indefatigable counsel, Shivani Jegarajah and Colin Yeo of Renaissance Chambers, solicitor Raja Uruthiravinyagan of Duncan Lewis and to the committed and able legal team that appeared for the three appellants, for their contributions Alasdair MacKenzie and Alison Pickup of Doughty Street, Rudolph Spurling and Sara Anzani of 10 Kings Bench Walk and last but not least Iain Palmer of Renaissance and their respective instructing solicitors. 

We acknowledge again, though they choose to remain unnamed, our great debt to all those who contributed to the TAG reports that were in evidence before the Tribunal.
 
______________________________
 
 
 
Briefing Notes
Extracts from the Tribunal’s findings regarding the general situation in Sri Lanka
 
The No Fire Zones
 
In arriving at its decision the Tribunal acknowledged the current state of repression in Sri Lanka as well as the enduring effects of the circumstances of the last phase of the civil war. The Tribunal acknowledged the contributions of British documentaries including Channel 4’s  ‘Sri Lanka’s Killing Fields’ series and ‘No Fire Zone” in shaping its understanding of the final days of the war. It was at pains to avoid ‘minimizing’ the deaths in the last phase of the war. It said,
 
We do not underestimate the losses suffered by the Tamils at the end of the civil war.  We make the following factual findings on the basis of all the evidence before us.…. Between 40,000 and 100,000 Tamil civilians died in government-designated NFZs in the final days of the civil war in May 2009. There were three successive NFZs, progressively smaller and moving further east.  Supplies of both food and water in the NFZs were inadequate.  Shelling of the field hospital at Mullaivaikkal caused many deaths.  The GOSL has consistently blamed the LTTE for the deaths; the Tamil community attributes the deaths to the actions of the GOSL.  The GOSL continues to describe this a period when they were seeking ‘humanitarian’ protection of those in the NFZs, but its account is overwhelmingly rejected in the material we have seen, in particular in the “Sri Lanka’s Killing Fields” series.” (Para ***)
 
On Sinhalisation, Militarization and Repression of Cultural Identity
 
The Tribunal then recognized the extent of post-war Sinhalisation, and of militarization in the North and East of Sri Lanka, “The former Tamil areas in the Northern and Eastern Provinces are in effect occupied territory, with one soldier for every five members of the population.  Militarisation is particularly heavy in the Northern Province (Para 328) ..”
 
And, “President Rajapaksa has stated that these areas should not now be described as “Tamil areas”: the government’s intention appears to be to dilute the Tamil population of those areas by Sinhalisation” (Para 329)
 
The State’s attempts to repress displays of Tamil cultural identity (despite efforts at economic reconstruction) were also acknowledged. “that any such reconstruction does not permit recognition of separate Tamil identity at present. “ (Para 332)
 
The difficulties of reporting from Sri Lanka were appreciated:
 “There is very little evidence coming out of the Northern and Eastern Provinces because of self-censorship by journalists and lack of access for human rights bodies and other non-governmental organisations” (Para 342).
 
The prevalence of torture was accepted, so too that corruption is endemic. The British government “accepted that those who were detained were likely to be ill-treated and the evidence suggests that, for both sexes, that ill-treatment sometimes includes sexual abuse. “ [Para 356]
 
On the Tamil Diaspora
 
The Tribunal accepted that Sri Lanka government is often hostile to British Tamil political activists.
 
“It is clear that among the London Tamil diaspora in particular, and no doubt also in Paris, Oslo and Toronto, there are committed Tamil activists working for Tamil separatism and to destabilise the unitary Sri Lankan state.  The GOSL perceives such individuals as continuing to oppose the Sinhalisation of Sri Lanka as a whole, and the single state approach enshrined in Amendment 6(1) to the Sri Lankan Constitution in 1983, which prohibits the “violation of territorial integrity” of Sri Lanka.”
 
The Tribunal noted the extensive surveillance of British Tamils and other diaspora as well as Tamils locally, “The former Tamil areas and the diaspora are heavily penetrated by the security forces. Photographs are taken of public demonstrations and the GOSL may be using face recognition technology: “
 
The Guidance
 
Having articulated its assessment of the current situation in Sri Lanka, the Tribunal gave the following guidance,
 
“355. As already stated, while the December 2012 UNHCR guidance has assisted us in reaching the conclusions on country guidance which we now set out, we have not heard evidence on all of the categories identified in the guidance and we have heard evidence from a very wide range of experts with knowledge of conditions today in Sri Lanka.   Professor Good and Dr Smith were both asked to comment on whether the LP/TK factors continued to be of relevance.  Each of them said that they were, but offered a list of more current suggestions in addition. 
 
356.   Having considered and reviewed all the evidence, including the latest UNHCR guidance, we consider that the change in the GOSL’s approach is so significant that it is preferable to reframe the risk analysis for the present political situation in Sri Lanka.  We give the following country guidance:
(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 new 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.”
 
______________________________
 
Areas of concern
 
The UN Committee Against Torture recommended, in its concluding observations to the UK, as follows,
 
The Committee calls upon the State party to submit situations covered by article 3 of the Convention to a thorough risk assessment, notably by taking into consideration evidence from Sri Lankans whose post removal torture claim were found credible, and revise its country guidance accordingly.”
 
Nevertheless the British government sought to exclude lower court factual findings of torture from the Country Guidance proceedings relying on a legal technicality. TAG’s evidence, analysed in its two reports “Returnees at Risk” and “Activist Intimidation” of 34 previous judgements confirming torture on return  - the core of our torture data – was not taken into consideration in arriving at the Tribunal’s findings. This was due to a legal precedent that unreported lower court judgments are not admissible at the upper tribunal.
 
But having judged the aforementioned data sets inadmissible the Tribunal found at Para 351,
 
Attendance at one, or even several demonstrations in the diaspora is not of itself evidence that a person is a committed Tamil activist seeking to promote Tamil separatism within Sri Lanka”.
 
Had the determinations supplied by TAG been held accessible and analysed, it would have been seen that many of those who returned voluntarily to Sri Lanka, after 2009, who were then tortured, fled to the UK and were granted asylum, had tenuous links to the LTTE, and tenuous political activist credentials. They did not believe themselves to be at risk, and yet demonstrably they were. Under torture they were interrogated about attendance at demonstrations, and what they knew about the work of the LTTE ‘rump’ diaspora.
 
In contrast to the Tribunal’s finding in the Country Guidance, First Tier Tribunal Judge Mailer in an asylum appeal determination from April 2013, considered that the appellant’s “involvement in the demonstrations, including demonstrations at the time the President came to the UK, are reasonably likely to result in the authorities regarding the Appellant as a person opposed to the regime.” (318)
 
The evidence relating to Sri Lanka is clear. Those who seek to appose the government by way of demonstrations, contending that the leaders should be implicated and charged for war crimes, would be treated harshly. (323)
 
We regard the Appellant's political belief to be strongly held. Were the Appellant to seek to give effect to his right to express his opposition to the authorities as an exercise of his political beliefs, the treatment that is likely to await him amounts to persecution.” (324)
 
Secondly we dispute that risk to witnesses stops at those who have given evidence before the LLRC. The Tribunal found,
 
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.” (Para 356 (7)(c))
 
To draw such an artificial line is to deny the right to free speech and justice to Tamils who have suffered and survived, those who witnessed war crimes, who want to speak out but cannot for fear of persecution.
 
TAG is seeking legal advice regarding the above points.