“First, has the Secretary of State asked himself the correct question? The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return ... The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting-point for that enquiry; but it is only a starting-point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind. Second, in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts, has the Secretary of State satisfied the requirement of anxious scrutiny? If the court cannot be satisfied that the answer to both of those questions is in the affirmative it will have to grant an application for review of the Secretary of State’s decision.”
“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 ... 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.”
“Our assessment of the various risk factors ... 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.”
“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. Not every young, male Tamil who is arrested will have been so arrested because of sectarian activity. As in any other society a proportion will have committed, or been suspected of committing more mundane criminal, and often minor, offences.”
“56 I accept what he tells me. He has been arrested on four occasions but the first two were round-ups and the second [it is clear from the context and from earlier paragraphs of the Determination that this is in fact a reference to the third arrest] related more to his brother that it did to him, although he was kept for a short while and was questioned and treated roughly. I do not believe that he has been the subject of persecution. 57 The last detention in Colombo was because he had not bothered to register and was not specifically directed at him. 58 I do not find that this Appellant has been persecuted in Sri Lanka.”
“51 This view is supported when it is noted that your client’s case does not possess any of the weightier risk factors outlined in the case of LP. In particular, your client does not have a previous criminal record, did not escape from custody or jump bail, but rather was released on the payment of bribes and more importantly, he has not signed a confession or similar document. 52 As noted above, his periods of detention related to three instances of round-ups and one instance where it was his brother and not particularly the Claimant that the army was seeking. No finding has ever been made that there is a record of his detentions, but it is in any event noted, consistent with LP, that where the “detention is an informal one, or [where] it is highly unlikely that the bribe … has been officially recorded, then the risk level to the applicant is likely to be below that of real risk.” 53 Having regard to the previous findings made by the Adjudicator … it is considered that the material adduced does not take your client’s claims any further.”
“On12th October 2000 the LTTE came to the house and enquired about his elder brother … On the following day the army rounded up the village and asked why the LTTE had come to their house. The Appellant was arrested and taken away”
“Within Colombo there is no doubt that Tamils are at greater risk of being stopped at a checkpoint or detained in a cordon and search operation or being the subject of a raid on the lodges by the authorities. Those activities do not of themselves mean that a Tamil, without more, would be at risk, but it does mean that on each occasion there is an opportunity for his or her presence to be checked and then one or more of the risk factors could come into play.”
“We agree … that if a person has been credibly found to have refused to co-operate with the security forces, after being detained for membership, or perceived support of the LTTE, there is a higher risk that they will be assumed to be collaborators with the LTTE. In this regard we consider that such evidence needs to be taken into account along with the totality of the evidence and it will not, in every case, be a situation where merely establishing that they have refused to be an informer, will be the basis for a valid claim for asylum on its own.”
“Some of the evidence given by Dr Smith appeared to be simply wrong. There are a number of places where he demonstrably exaggerated the risk to the appellant. For example, he said ... Yet on close examination it became apparent that there was no basis for saying that at all. As a result doubt has to be cast upon Dr Smith’s ability to give expert opinion evidence impartially and objectively. In such a case, it becomes very difficult to put weight on un-sourced, unsupported assertions even if it is said that a particular person said a particular thing on a particular occasion. Dr Smith thus has not fully demonstrated that he has provided an objectively filtered impartial and independent view, based on evidence. The amount of reliance and weight that can be put upon his other assertions, which have not been expressly sourced, or fully quoted, or supported by primary evidence is, as a result, limited.”
“[198] We found Dr Smith’s reports and evidence to us were valuable in giving a background on virtually all of the issues we were required to cover, in particular setting the historical perspectives. However, on the core issues of risks on return of persecution and/or serious maltreatment and whether such risks would rise to the level of being real as opposed to remote, this report is merely part of the totality of the evidence we have taken into account. In some respects we consider Dr Smith has made overstatements in his conclusions based on the background evidence that was before him. Conclusions that in his view were “axiomatic” sometimes appeared to us to be primarily speculative. In other areas he appeared to rely on selective pieces of evidence to reach his conclusions. Apart from these flaws however, which clearly do have a tendency to taint other parts of the report, we found his written and oral evidence useful. … [200] Thus, Dr Smith’s report whilst often good on factual analysis was at times not of such great assistance where opinions were ventured. With limited exceptions, his report did reflect a situation of a well-informed and reasonably balanced commentator who was able to filter out immaterial information.”
“[10] The words used by the Tribunal are not entirely consistent. In some passages emphasis is laid on the high profile of targeted individuals. In others, the targets are broken down into three categories. First, those who were in political opposition to the LTTE in high profile positions. Secondly, LTTE defectors. Thirdly, supporters of Colonel Karuna. Miss Richards submits that the emphasis is on high profile targets and that on a proper reading of the decision, it is only high profile targets who are at risk. [11] I do not agree. It seems to me that both in paragraphs 59 and 71 of the decision which I have cited, the Tribunal is careful to break down those who are at risk into three categories which they and I have specifically identified. Those who were supporters of Colonel Karuna at least after the schism potentially fall into two of those overlapping categories – renegades or traitors to the LTTE and supporters of Colonel Karuna. Potentially, a very small number will fall into the third category: those with a high profile as well. [12] It does not seem to me, for present purposes, the Secretary of State would be entitled to assume or I would be entitled to assume that the IAT in PS decided only that those with a high or prominent profile in Tamil affairs were potential targets in Colombo. [13] In a nutshell, the decision in PS, at the very least leaves that question open and acknowledges that some at least of the individuals who are not high profile, are at risk even in Colombo.”
“Those features seem, when taken together, to raise the possibility – no more than that – but a possibility which cannot be dismissed as unfounded, that this claimant’s claim, if heard by an Adjudicator, would succeed.”
“There is, with all respect to Miss Jegarajah’s sustained argument to the contrary, nothing in any of the subsequent materials to which she has drawn my attention which throws the slightest doubt upon the continuing validity of the factual analysis so carefully undertaken by the Tribunal in Re PS. In those circumstances the challenge to the certificate fails.”
“is it open to the claimant, in the light in particular of the Amnesty International report and Dr Smith’s report, to assert that, at least arguably, things have sufficiently moved on since the Tribunal decided PS as to deprive the Secretary of State of the ability to say that this claim was clearly unfounded?”
“[24] … The situation is plainly deteriorating and continuing to deteriorate. I accept, at least arguably, because that suffices for present purposes, that the degree of risk is correspondingly increasing. In particular, I am prepared to accept for present purposes that there may have been, and there are indications that there will continue to be for the foreseeable future, some increase in the degree of risk to low-level LTTE personnel. [25] But at the end of the day, the question is whether, having regard to the totality of the material before the Secretary of State, including in particular and very importantly the Amnesty International report and Dr Smith’s report, it was still open to the Secretary of State to conclude as he did, as recently as in his final decision letter dated22nd February 2006 , that the claimant’s claim was clearly unfounded. In my judgment, the Secretary of State was entitled to reach that conclusion.”
“[26] The picture is a developing one. Things have undoubtedly (I say undoubtedly meaning undoubtedly for the purpose of an application such as this) developed and moved on since the Tribunal decided PS. If matters in Colombo continue to deteriorate in the way described by Dr Smith, then it may be that the time will come when the reliance that can be placed upon the decision in PS will properly diminish and it may be the time will come when the decision in PS will no longer be a safe guide to certification cases such as this. That is speculation and, of course, in part it is dependent on the extent to which Dr Smith’s predictions for the future turn out to be correct ... [28] The situation in Colombo, described and reported upon by Dr Smith, no doubt indicates a deterioration in circumstances since the Tribunal decided PS. But, even taking Dr Smith’s report at its highest in favour of the claimant, it does not, in a case of this type, nor does it in this particular case, invalidate the essential thrust of the reasoning of the Tribunal in PS.”
“Even in a certification case, and even in the case of an expert of the obvious expertise and integrity of Dr Smith, the Secretary of State is not compelled to accept every pronouncement by an expert. The more general, unsourced and unparticularised the report, the easier it may be for the Secretary of State to say that a case is clearly unfounded; the more detailed, sourced and particularised the report, the more significant the report will be.”
“various attempts to suggest that [PS] is now so out of date that it could not reasonably be expected to be the basis or the starting point of assessment of particular risk have received no support in various applications that have come to the Administrative Court.”
“There is no evidence to support your client’s implied claim that he is at risk from the LTTE in Colombo. He does not fall within any of the risk factors identified [in PS] and there is no basis for concluding that there is a realistic prospect of him demonstrating to a different Immigration Judge that the LTTE would target him in Colombo.”