UK Sri Lanka Country Guidance Determination 5th July 2013

By Together Against Genocide (TAG, formerly Tamils Against Genocide), Friday, July 05 2013
Upper Tribunal   Appeal Numbers:  AA/12647/2011
(Immigration and Asylum Chamber)            Appeal Number: AA/12647/2011   AA/03791/2011
Heard at Field House Determination Promulgated
On 5 – 8 and 11-12 February 2013,
15 March 2013 and 19 April 2013.
Interested Party

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
  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
  1. 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 appellant’s account is that he came originally from Jaffna but was relocated to Puthukudyiruppu where he worked for the LTTE on the Pallai checkpoint for two years.  He returned home after the ceasefire and was re-recruited in 2008, bunker digging and transporting the wounded.  He surrendered at the end of the civil war in May 2009 and was detained for three months, during which he was tortured.  He reached the United Kingdom in 2010. 
    3. The basis on which the third appellant puts his claim is that he was involved with the LTTE between 1995-1997.  He was detained and tortured in 2001-2 but released from detention in 2002 after the ceasefire, and came to the United Kingdom in 2005.  His brother is also in the United Kingdom and has been granted asylum on appeal. 
  2. The paragraph numbers where certain elements of this determination may be found are as follows:
Glossary 8
Tamil celebrations 9
Evidence before the Upper Tribunal 10-15
Procedural issues 16
Unrelated Tribunal determinations 17-27
The respondent’s duty of disclosure 28-32
HRW/FFT/TAG reports – confidentiality 33-37
Ms Hogg and her HRW research 38-40
Existing guidance on Sri Lanka 41-42
Updating the country guidance 41-48
Agreed issues 49-51
Summary of Evidence 52-165
A.     Respondent’s submissions
B.      Appellants’ submissions
 (1)    Mr Mackenzie’s submissions
 (2)    Mr Spurling's submissions
 (3)    Mr Palmer’s submissions
C.      Miss Jegarajah’s submissions
Submissions in reply
Legal framework
Our assessment of the witnesses 
Confidentiality and the public reports
Timing of flights and reports
UNHCR Guidelines
General situation in Sri Lanka now
  1. Particular issues:
  2. No-Fire Zones
  1. “Rehabilitation”
  1. Rajapaksa government
  1. Sri Lankan Government’s attitude
  2. to returning asylum seekers
  1. Sinhalisation of Tamil areas
  1. LLRC
  1. Diaspora activities
  1. The LP / TK factors
Country guidance   355-356
The individual appellants: The first appellant 358-398
  The second appellant 399-435
  The third appellant 436-455
  1. The following standard abbreviations are used in this determination:
Abbreviation Full name
BHC British High Commission
CHOGM Commonwealth Heads of Government Meeting
CID Criminal Investigation Department
CSLT Country Specific Litigation Team
DIE Department of Immigration and Emigration (Colombo)
Diaspora hotspot London, Paris, Toronto and Oslo, the main centres of activity for the Tamil diaspora worldwide.[1]
Diaspora activities Demonstrations, fundraising, and other activities carried out in the diaspora hotspots, in support of Tamil separatism and the resurgence of the LTTE or similar militia. 
ECHR European Convention on Human Rights and Fundamental Freedoms
EPDP Eelam People’s Democratic Party
ETD Emergency Travel Document
FFT Freedom from Torture (formerly the Medical Foundation)
GOSL Government of Sri Lanka
HRW Human Rights Watch
HSZ High Security Zone
IAGCI Independent Advisory Group on Country Information
IOM International Organization for Migration
LLRC Lessons Learned and Reconciliation Commission
LTTE  Liberation Tigers of Tamil Eelam
MDO Migration Delivery Officer (BHC Colombo)
MEA Ministry of External Affairs (Colombo)
MLR Medico legal report
MSO Migration Support Officer (BHC Colombo)
NGO Non-governmental organisation
NFZ No-fire zone
PLOTE People's Liberation Organization of Tamil Eelam
PTA Prevention of Terrorism Act (as amended)
SLHC Sri Lankan High Commission
SIS State Intelligence Service
“stop” list Computerised list of those against whom there is an extant Court order, arrest warrant or order to impound their Sri Lankan passport.  Accessible at the airport.
TAG Tamils against Genocide
TamilNet  A Tamil news and feature service that aims to provide reliable and accurate information on issues concerning the Tamil people in Sri Lanka.
TGTE Transnational Government of Tamil Eelam
TNA Tamil National Alliance – a breakaway from TNPF launched on 28 February 2010.
TNPF Tamil National People’s Front – a Tamil political alliance
TTD Temporary Travel Document.  
ETDs in Sri Lanka have been replaced by TTDs, presumably under the Readmission Agreement.  Reference in this determination to a TTD includes ETDs before the change of nomenclature.
TULF Tamil United Liberation Front
UKBA United Kingdom Border Agency
UNCAT UN Committee Against Torture 
UNHCR United Nations High Commissioner for Refugees
“watch” list A computerised list of those whom the Sri Lankan security services consider of interest, whether for separatist or criminal activities.  Accessible at the airport.
Tamil Celebrations
  1. The evidence indicates that the following celebrations, held every year, are specific to the Tamil community and that many Tamils may wish to participate in celebrating them, both within Sri Lanka and in the diaspora:
Tamil name[2] Translation When celebrated
Maaveerar Naal
Heroes Day 27 November annually (the day following the birthday of the late LTTE founder and leader Thiruvenkadam Velupillai Prabhakaran (‘Prabhakaran’)
Pongu Thamil: Tamil Uprising/
Tamil Upsurge
Dates vary. Commemorates a series of spontaneous demonstrations in the 1990s and during the peace process years. 
Mahaveera[3] Martyrs Day 18 May 2010 and thereafter, marking the anniversary of the end of the civil war in Sri Lanka on 18 May 2009
Evidence before the Upper Tribunal
  1. The hearing of these appeals took place over nine days between 5 February and 19 April 2013 (excluding Case Management Review hearings which guided the preparation of the case between September 2012 and the full hearings).  TAG sought and was granted leave to intervene on behalf of issues concerning the Tamil diaspora in general.  We are indebted to TAG for making available additional experts, evidence and argument which would not otherwise have been before us.
  2. All parties, including TAG, made extensive written submissions before, during and after the main hearing, as well as oral submissions at the end of the case. 
  3. We received approximately 5000 pages of documentary evidence.  We had the benefit of oral evidence from seventeen expert and country witnesses, including three witnesses for the respondent with detailed knowledge regarding the preparation of Operational Guidance Notes and Country of Origin Reports, and of entry procedures at Bandaranaike Airport, Colombo.  Four more experts gave evidence by witness statement or report but were not available for cross-examination.
  4. We also heard from two of the appellants to clarify matters which had arisen after their original evidence was given to the First-tier Tribunal.  The evidence is dealt with when we consider each of the appellant’s particular circumstances at the end of this determination.  The third appellant was not called:  medical evidence indicated that he might not be fit to testify and his representatives elected not to risk any further harm to his mental state.
  5. The witness evidence and other relevant information are set out in a series of appendices to this determination.  For ease of reference, those appendices and the material they contain are as follows:
Appendix Evidence
A Documents before Upper Tribunal
B Agreed issues
Mr Malcolm Lewis
Mr Mike Gallagher
Mr Jonathan Wright
Mrs Anita Athi-Parkin (witness statement)
Dr David Rampton
E Freedom from Torture:
Professor Sir Nigel Rodley
Ms Jo Pettitt
F Human Rights Watch:
Mr Brad Adams
Ms Charu Lata Hogg
G Tamils Against Genocide:
Ms Jan Jananayagam
Mr Alan Keenan
H Outsider TV
Callum Macrae
I Professor Anthony Good
J Dr Chris Smith
K Other country witnesses:
Dr Rohan Gunaratna
Mr Paikaisothy Saravanamuttu
Mr P Anton Punethanayagam
Dr Suthaharan Nadarajah
L Press reports
M Tabular analysis of material from unreported Tribunal determinations submitted by TAG and third appellant
  1. We have had regard to all of the material before us, written and oral.  We mean no disrespect to the parties, all of whom put in a great deal of work to assist the Upper Tribunal in understanding the present situation in Sri Lanka, when we say that we do not intend to set it out in extenso in this determination. 
Procedural issues
  1. There were a number of procedural issues during the hearing, most of which concerned the admissibility or disclosure of certain evidence.  A good deal of evidence was served late, including during the hearing.  In most cases, the late service did not cause any lasting difficulty and requires no comment now.  There are three procedural issues which do require analysis in this determination.
Unrelated Tribunal determinations
  1. The parties, and in particular TAG, had obtained copies of 52 positive asylum  determinations (mostly First-tier Tribunal determinations, but including some unreported Upper Tribunal decisions and four positive decisions by the respondent at first instance) in which the accounts of Sri Lankan appellants had been found credible and their appeals allowed.  The appellants in those cases all stated that they had been tortured after returning to Sri Lanka.  In 16 of the determinations relied upon, the respondent was not represented, such that the appellant’s account was untested by cross-examination.  All of the determinations were unchallenged by any onward appeal. The determinations were unreported and the appellants concerned were not contacted to seek consent for the use of their personal information.
  2. We received oral and written submissions from all parties (including TAG) on the admissibility of these determinations and the weight which we should give to them, if admitted.
  3. For the respondent, Mr Hall argued, first, that it is a general principle of civil litigation that previous findings of fact do not set precedents for later cases between different parties (see paragraph 64 of AA(Somalia) and AH (Iran) v Secretary of State for the Home Department [2007] EWCA Civ 1040), and second, that the general principle is