Statement: British court decision affirms risk to protesters

By Together Against Genocide (TAG, formerly Tamils Against Genocide), Wednesday, April 24 2013
TAG Press Release
24 April 2013
British court decision affirms risk to protesters
In an asylum appeal determination published recently, First Tier Tribunal Judge Mailer in the Immigration and Asylum Chamber, ruled that an asylum applicant’s “removal pursuant to the deportation order would be contrary to the UK's obligations under the Refugee Convention and Article 3 of the Human Rights Convention.” Judge Mailer found that the treatment that was likely to await the applicant should his asylum be refused “amounts to persecution”.
The appellant is a Sri Lankan born Tamil, and an avid protester. He had attended dozens of protests against the Sri Lankan state, both during the conflict and to the present day, an anonymity order precludes further details. Miss Shivani Jegarajah, Renaissance Chambers, was counsel for the appellant. The basis for the appellant’s appeal was that as a protester, who could be identified as such, he was at risk. The ruling accepted this and thus affirms in legal spheres the risk to protesters from the Government of Sri Lanka (GoSL).
Judge Mailer considered that,
            “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”.
He found as follows,
            “Having considered the background material produced as well as the evidence from the report of TAG, we find that the submissions relating to the potentially hostile treatment meted out by the Sri Lankan authorities in respect of a person perceived to have been involved in anti government protests in the diaspora, to be made out.”
The ruling is especially perspicacious in recognizing that risk is related not to facts alone but to perceptions. It was put to the appellant that his being part of protests did not amount to his being a member of the LTTE. The appellant concurred, “He said that it was not he who was saying that. The government might think that.” It is the question of perception that matters and that needs to be considered when assessing risk.
There are several sources for unearthing the Sri Lankan State perception with regards to protesters. In her evidence before the Tribunal, TAG Director, Janani Jananayagam enumerated many of these sources. She was quoted in the determination, speaking of a “history of hostility to and demonisation of diaspora organisations supporting a secession of the Tamil homelands in Sri Lanka” – indeed the GoSL attitude and actions today against those who call for accountability for crimes is not without precedent.
Judge Mailer records that Ms Jananayagam referred to “credible accounts of the Sri Lankan government monitoring” of diaspora activity, including the website, that lists ‘LTTE agents” including well-known diaspora political and human rights activists, an interview with Sri Lankan Defence Attache Prasana de Silva that supports the contention that Sri Lanka is actively gathering intelligence on diaspora activity, photographs taken by Sri Lankan embassy staff of protesters, and the surveillance and intimidation of the families of diaspora activists in Sri Lanka. Indeed, as we have previously argued, the GoSL preoccupation with and concern regarding protesters abroad is apparent from the interrogation questions, under torture, of returnees. For more detail please see TAG’s Report “Activist Intimidation” Surveillance and Intimidation of Tamil Diaspora Activists and their supporters” March 2013, at
The GoSL conflates Human Rights activism with ‘terrorism’. The Sri Lankan state defines both broadly to encompass a myriad of actors, including INGOs, protesters and activists. Employing a ‘if you are not with us, you are against us’ mentality, those who oppose, or are perceived as opposing, the state are labeled as traitors. The GoSL definitions of ‘LTTE’ and of ‘terrorism’ have often been left unquestioned. This asylum determination is significant in recognizing the above definitional issue and GoSL mentality. The appellant was judged at risk not because of actual LTTE associations, but because, as a protester he would be considered by the GoSL to be ‘LTTE’ and therefore is at risk.
Looking ahead, the UKBA and the asylum tribunals, as well as the international community more generally, need assess likelihood of future risk as well as current. Having regard to the increasingly strong statements by the international community in favour of accountability and in condemnation of Sri Lankan human rights abuses, it is predicted that the Sri Lankan government response to ‘opposition’ is likely to be even more stringent and in-discriminate.
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