“Although your client may be stopped and questioned upon arrival in Sri Lanka, the Adjudicator did not accept that your client had a record or has committed an offence. It is therefore highly unlikely that your client on his return would be of any adverse interest to any governing authorities in Sri Lanka … With regard to your client’s detention, the Adjudicator concluded that your client was released and that there was nothing further to indicate that he will be wanted by the authorities in relation to anything different. It is considered your client has not further discharged the burden of proof that he will be wanted on his return.”
“Although on the adjudicator’s findings, the claimant had embellished his claim (particularly in relation to what had allegedly happened to his mother and sister), it was accepted that his brother had been an active LTTE fighter and his father had been killed. That coupled with his release on reporting conditions makes it arguable that the present situation creates a real risk that he may be detained and so subjected to torture. In addition, the adjudicator thought the length of time here plus family presence lent support to an Article 8 claim. 4 years have passed and the Home Office has failed to remove until this autumn. This too persuades me to grant permission since it is arguable that the claimant deserves a right of appeal.”
“When a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content: (i) had not already been considered; and (ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection. This paragraph does not apply to claims made overseas.”
“Previous Record as a Suspected or Actual LTTE Member or Supporter ..... 210. From our assessment of the background evidence, we find that it is of vital importance, in the assessment of each Sri Lankan Tamil case, to establish an applicant's profile, and the credibility of his background, in some depth. For example if the appellant was not credible as to his background from the north or the east, which left a situation where he could be a Tamil from Colombo who had little or no involvement with the LTTE, there could be, based on the reality of the assessment of his predicament, little risk (or almost certainly not risk at the level of engaging either Convention). ….. Bail Jumping and/or Escape from Custody ….. 213. We agree with the logic that those who have been released after going to court and released from custody on formal bail are reasonably likely, on the evidence, to be not only recorded on the police records as bail jumpers but obviously on the court records as well. Thus we would identify those in the situation such as this appellant who have been found to have been to court in Colombo, and subsequently released on formal bail, as having a profile that could place them at a higher level of risk of being identified from police computers at the airport. Their treatment thereafter will of course depend upon the basis that they were detained in the first place. It is important to note that we did not have before us any information as to the treatment of bail jumpers from the ordinary criminal justice system, and there may be many of them, when they again come to the attention of the authorities, be they Tamil or Singhalese. We had no evidence that Tamil bail jumpers are treated differently from Singhalese ones. Clearly punishment for jumping bail will not make someone a refugee. As we have said, the risk of detention and maltreatment will depend on the profile of the individual applicant. The situation however, in respect of those who have not been to court and may have been released after the payment of a bribe we do not consider falls into the same category. Much will depend on the evidence relating to the formality of the detention (or lack of it) and the manner in which the bribe was taken and the credibility of the total story. If the detention is an informal one, or it is highly unlikely that the bribe or “bail” has been officially recorded, then the risk level to the applicant is likely to be below that of a real risk….. Return from London or Other Centre of LTTE Activity or Fund-Raising 218. We consider that this is a factor that will be highly case-specific. While it is valid to take into account that Dr Smith and Detective Inspector Hibberd assert that London is a centre for Tamil fund-raising, (indeed it is now alleged/rumoured that the LTTE may be involved in a “skimming” operation with credit cards in a number of petrol stations in the UK), we consider that this would be a factor that would have to be credibly established, by reference to an appellant’s evidence or perhaps that of a close associate. He would need to show the extent to which the Sri Lankan Embassy in the UK was aware of his activities and was thus likely to have passed the information on to Colombo when the applicant was being deported or removed. Illegal Departure from Sri Lanka 219. We agree that illegal departure does not of necessity establish a well founded fear of persecution or serious harm on its own. However, it does appear that there is some evidence in the Hotham report, in the evidence of Dr Smith, and the IRB that it may now, in the heightened level of insecurity in Sri Lanka, add to the profile. Again, it is a factor that will be very much case-specific and is likely to become relevant as one factor in a plethora of possible factors leading to real risk of serious harm. Lack of ID Card or Other Documentation 220. The evidence of Professor Goode was that carrying a national identity card has become a must. It would appear a reasonable inference that in the current situation, where a number of cordon and search activities take place in Colombo and elsewhere, that the lack of valid identity could lead to a higher risk. Obviously it would need to be coupled with other risk factors for those of Tamil ethnicity, but we view it as being a contributing factor. An appellant would need to show why he would be at continuing risk, and that he cannot reasonably be expected, or able, to acquire a new identity card. Having Made an Asylum Claim Abroad 221. Again there was accepted evidence, including that from the BHC, that there are lists of failed asylum seekers which could form part of search operations in Tamil areas of Colombo. It is again a reasonable inference that the application forms for replacement passports and travel documents may alert the Sri Lankan High Commission in London and that that information could be passed on. We do not consider this to be an issue that alone would place any returning failed asylum seeker at a real risk of persecution or serious harm on return. Again, it would make but a contributing factor that would need other, perhaps more compelling, factors added to it before a real risk of persecution or serious harm could be established. Having Relatives in the LTTE 222. This factor we consider is again a highly logical one but again needs to be taken into account along with the totality of other evidence and the profile of the other family members. On its own, without established and credible evidence of the details of the other family members and their known role or involvement with the LTTE, it will be of limited weight. ….. Risk Profiles for Tamils 227. Our assessment of the various risk factors above has highlighted that each case must be determined on its own facts. It may be that in some credible cases one of these individual risk factors on its own will establish a real risk of persecution or serious harm on return by the Sri Lankan authorities for Sri Lankan Tamils who are failed asylum seekers from the United Kingdom. For those with a lower profile, assessed on one or a combination of the risk factors we have noted however, such as this appellant, their specific profiles must be assessed in each situation and set against the above non-exhaustive and non conclusive, set of risk factors and the volatile country situation. As can be noted, several factors, such as being subject to an outstanding arrest warrant, or a proven bail jumper from a formal bail hearing may establish a much higher level of propensity to risk than various other factors. In this situation therefore, the assessment exercise is a much larger and more detailed one than may have been the situation up to 2002 and certainly during the period of the cease fire agreement ("CFA"). The current worsening situation in Sri Lanka requires serious consideration of all of the above factors, a review of up to date country of origin information set against the very carefully assessed profile of the appellant. 230. The following will retain country guidance status but, as always, should be looked at in the context of the developing situation and in the light of any more up to date evidence. PT (Risk – bribery – release) Sri Lanka CG [2002] UKIAT 03444. Although this case concerned the position in mid-2002, paragraphs 28 and 29 of the determination (which deal with scarring) are not inconsistent with the evidence that was before us and paragraphs 19 to 27 (which deal with the issue of bribery) remain consistent with the evidence we have heard, the submissions made and contains what continues to be a common sense approach to the issue of bribery-related releases. Summary of Conclusions ….. 234. Tamils make up over 10% of the population of Colombo. Despite evidence of some forms of discrimination, the evidence does not show they face serious hardships merely because they are Tamils. As a result, other considerations apart and subject to individual assessment of each applicant's specific case, it cannot be argued that, even if he faces serious harm in his home area, as a general presumption it is unduly harsh to expect a Tamil to relocate to Colombo, or that it would be a breach of Article 3 to expect him or her to do so, or that doing so would put him or her at real risk of serious harm entitling them to humanitarian protection. ….. 236. Other issues which require careful evaluation involve the previous attention paid to the appellant by the Sri Lankan authorities. Questions of whether the appellant has been previously detained and for how long will be significant, as will the reasons for the detention. A short detention following a round-up may be of little significance; a longer detention as a result of a targeted operation will be much more significant. The question of release and how that came about may be important. It should be recognised that the procurement of bribes is a common occurrence in Sri Lanka and that the release following payment of a bribe is not necessarily evidence of any continuing interest. Care should be taken to distinguish between release following the payment of a bribe and release following the grant of bail. Care should be taken in the use of language here. Release on payment of a bribe, and release on bail with a surety could be confused. Both forms of release follow discussions about, and possibly payment of, money. The evidence is that the police in Sri Lanka do, in appropriate circumstances, grant bail. In this particular case bail was granted by a court. If the Tribunal is satisfied that the appellant has jumped bail (and that would include failing to report under a reporting condition), it is necessary to assess the reason for which bail was granted in the first place….. ….. 238. During the course of the determination we have considered a list of factors which may make a person's return to Sri Lanka a matter which would cause the United Kingdom to be in breach of the Conventions. As in previous country guidance cases, this list is not a checklist nor is it intended to be exhaustive. The factors should be considered both individually and cumulatively. Reference should be made to the earlier parts of this determination where the factors are considered in more detail but for ease of reference they are set out here. There are twelve and they are not in any order of priority:- ‘(i) Tamil ethnicity. (ii) Previous record as a suspected or actual LTTE member or supporter. (iii) Previous criminal record and/or outstanding arrest warrant. (iv) Bail jumping and/or escaping from custody. (v) Having signed a confession or similar document. (vi) Having been asked by the security forces to become an informer. (vii) The presence of scarring. (viii) Returned from London or other centre of LTTE activity or fund-raising. (ix) Illegal departure from Sri Lanka. (x) Lack of ID card or other documentation. (xi) Having made an asylum claim abroad. (xii) Having relatives in the LTTE.’ 239. When examining the risk factors it is of course necessary to also consider the likelihood of an appellant being either apprehended at the airport or subsequently within Colombo. We have referred earlier to the Wanted and Watched lists held at the airport and concluded that those who are actively wanted by the police or who are on a watch list for a significant offence may be at risk of being detained at the airport. Otherwise the strong preponderance of the evidence is that the majority of returning failed asylum seekers are processed relatively quickly and with no difficulty beyond some possible harassment.”
“The adjudicator accepted that: (i) his brother was a fighting member of the LTTE, (ii) his father was shot by the SLA for assisting the LTTE, (iii) he was arrested in 1999 in Vavuniya, and ill treated in detention, (iv) he was released through bribery and daily reporting conditions were imposed.”
“… he claims to have been previously detained by the authorities, there is nothing to suggest that he will be similarly targeted upon return”
“12. The Appellant’s principal claim involves an incident in 1999, and he claims he is additionally at risk because be comes from a known family of LTTE supporters. He claims that his elder brother has been granted indefinite leave to remain in this country, and also his younger sister, who arrived after he did has also been granted indefinite leave to remain. He also produces a death certificate in relation to his father, and a note from the Sri Lanka Red Cross confirming that the person (named by the Appellant as his brother) was shot on12 May 1988 . Despite these family connections, he apparently went without any serious involvement with the security forces until January 1999, when he was twenty eight years old. He reports some slight harassment from them in earlier years when he was probably still at school, in relation to his elder brother.”