“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.”
“6. There was broad agreement as to the Secretary of State’s task under rule 353. He has to consider the new material together with the old and make two judgments. First, whether the new material is significantly different from that already submitted, on the basis of which the asylum claim has failed, that to be judged under rule 353(i) according to whether the content of the material has already been considered. If the material is not “significantly different” the Secretary of State has to go no further. Second, if the material is significantly different, the Secretary of State has to consider whether it, taken together with the material previously considered, creates a realistic prospect of success in a further asylum claim. That second judgement will involve not only judging the reliability of the new material, but also judging the outcome of tribunal proceedings based on that material. To set aside one point that was said to be a matter of some concern, the Secretary of State, in assessing the reliability of new material, can of course have in mind both how the material relates to other material already found by an adjudicator to be reliable, and also have in mind, where that is relevantly probative, any finding as to the honesty or reliability of the applicant that was made by the previous adjudicator. However, he must also bear in mind that the latter may be of little relevance when, as is alleged in both of the particular cases before us, the new material does not emanate from the applicant himself, and thus cannot be said to be automatically suspect because it comes from a tainted source. 7. The rule only imposes a somewhat modest test that the application has to meet before it becomes a fresh claim. First, the question is whether there is a realistic prospect of success in an application before an adjudicator, but not more than that. Second, as Mr Nicol QC pertinently pointed out, the adjudicator himself does not have to achieve certainty, but only to think that there is a real risk of the applicant being persecuted on return. Third, and importantly, since asylum is in issue the consideration of all the decision-makers, the Secretary of State, the adjudicator and the court, must be informed by the anxious scrutiny of the material that is axiomatic in decisions that if made incorrectly may lead to the applicant’s exposure to persecution. If authority is needed for that proposition, see per Lord Bridge of Harwich in Bugdaycay v. SSHD[1987] AC 514 at p 53.”
“11. 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: see §7 above. 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 willhave to grant an application for review of the Secretary of State’s decision.”
“339K. The fact that a person has already been subject to persecution or serious harm, or to direct threats of such persecution or such harm, will be regarded as a serious indication of the person's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated”
“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. … Bail Jumping and/or Escape from Custody 212. … [Professor Goode] states that in any case the available evidence does not support the contention that the detainee's release of itself indicates the authorities have no continuing interest in him. He considers that it cannot be concluded that release without charge or without the payment of a bribe precludes subsequent detention and notes a report from the Swiss Refugee Council in that regard. He submits that the issue is one of logic that having detained persons in Sri Lanka there is a practice of routinely re-arresting and re-detaining people on the basis of obtaining confession evidence by torture. This evidence appears to be supported by Dr Smith at paragraph 121 and Dr Gunaratna 213. We noted in particular the comments made by Professor Goode that the appellant's account here is an unusual one. It is unusual in that it has been shown that the appellant was granted bail by a court in Colombo. 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. … 214. 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 … … Summary of Conclusions … 235. As in most asylum cases the first, and most important task is the assessment of the credibility of the appellant's claim. In the course of that assessment the Tribunal will have regard to the history of the appellant including the part of Sri Lanka from which he comes and his actual involvement, if any, with the LTTE. Such involvement can vary between being a full-time fighting member to the informal periodic supply of food. Issues of exclusion may arise. The extent to which their involvement may be known by the Sri Lankan authorities (or the extent to which they perceive there to be an involvement) will be relevant 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. … 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 central question is whether a real risk exists that the authorities would suspect the claimant of having a sufficiently significant link to the LTTE which could cause him to be detained on his return to Sri Lanka.”
“An examination of decisions in other cases, apparently similar, should be avoided. The detailed facts of another case can be an unreliable barometer of risk and are likely to lead to a decision being taken in the case under consideration which is driven, not after anxious scrutiny in the case in question, but by the decision of a judge in a different case. That is not to say that a comparative exercise cannot help a decision-maker, but undue weight should not be attached to the result”
“We think it intrinsically unlikely that everyone who has ever been detained by the authorities in the course of the Sri Lankan conflict, or at least in the last 10-15 years, is now on a computer database which is checked by the Immigration Service when failed asylum seekers arrive at the airport, and is checked by the police or army when people are picked up at road-blocks or in cordon-and-search operations. The evidence suggests, on the contrary, that the database is far narrower than that. When Tamils are picked up in Colombo the authorities want to know why they have come and what they are doing, if they are not long-term residents of the city. There are no reports of people being detained and perhaps sent to Boossa camp at Galle because they were once held for questioning in Jaffna or Batticaloa years before. As for arrivals at Bandaranaike International Airport, the ‘Watch List’ and the ‘Stop List’ clearly contain the names of people who are ‘seriously’ wanted (to use a phrase of Mr Justice Collins) by the authorities. Equally clearly, the evidence does not indicate that they contain the names of everyone who has ever been questioned about possible knowledge of, or involvement in, the LTTE. The majority of Sri Lankan asylum seekers coming to this country claim to have been detained at some time by the authorities, but there are no reports of any being detained at the airport on return because they were once held for questioning years ago and then released”
“8. … . It was found that the applicant's account was credible: namely, he had been arrested by the army on some six occasions between 1990 and 1997 on suspicion of his involvement with the LTTE. He was detained for less than twenty-four hours on the first occasion and for two days on the last. There was no evidence as to how long the other periods of detention had lasted. On each occasion he was released without charge. During one or possibly more of these periods of detention he was ill-treated and his legs had scars from being beaten with batons. According to the Adjudicator, it may have been that the arrests took place in the course of round-ups. During the 1997 detention the applicant was photographed and his fingerprints were taken and his father signed certain papers in order to secure his release. … … 135. … , the Court notes that the objective evidence before it contains different accounts of the precise nature of the procedures followed at Colombo airport and the nature of the information technology there (see the British High Commission letters and the Immigration and Refugee Board of Canada report at paragraphs 60 -63 and 74 above). Indeed, the evidence suggests that the procedures followed by the Sri Lankan authorities may change over time. However, the Court also notes that, with the exception of the extracts of the British High Commission's letter of25 January 2008 that appeared in the March 2008 COI Report (see paragraph 60 above), all the above evidence was considered by the AIT in LP where it was undisputed that records were kept and interviews conducted at the airport and where the AIT found that computerised records were available to the police at the airport, from which they could identify possible "bail jumpers" (see paragraph 35 above). In the light of the extensive evidence before the AIT on this subject and its findings, the Court cannot come to a different conclusion on the basis of the uncorroborated British High Commission's letter of25 January 2008 and the observations therein that the Sri Lankan CID do not use computers, particularly when, as the COI Report noted, in its letter of24 August 2006 , the British High Commission had previously reported that "the Sri Lankan authorities have a good IT system to track arrivals and departures at the main airport and are able to track, in most cases, whether an individual is in the country or not" (see paragraph 60 above). The Court also considers it to be of some significance that both the British High Commission letters and the assessment of the Immigration and Refugee Board of Canada indicate that there are established and routine procedures for briefly detaining and questioning returnees at the airport 136. This evidence on procedures and facilities at the airport must be placed alongside the AIT’s finding on the availability of lists of failed asylum seekers to the Sri Lankan authorities, which was based on the British High Commission’s letter of24 August 2006 … and the evidence that scarring has been used in the past by the authorities as a means of identifying Tamils who will be of interest to them …. The Court notes the AIT's finding, in light of that evidence, that “failed asylum seekers are processed relatively quickly and with no difficulty beyond some possible harassment” … but it considers that at the very least the Sri Lankan authorities have the technological means and procedures in place to identify at the airport failed asylum seekers and those who are wanted by the authorities. The Court further finds that it is a logical inference from these findings that the rigour of the checks at the airport is capable of varying from time to time, depending on the security concerns of the authorities. These considerations must inform the Court's assessment of the risk to the applicant. … 139. … [the Court] observes that the Government do not appear to have disputed the Adjudicator's findings as to the credibility of the applicant's account. These were that the applicant bears scars from ill-treatment during detention; that he was arrested by the army six times between 1990 and 1997 on suspicion of his involvement with the LTTE and that on the last occasion he was photographed, fingerprinted and released after his father signed a document (see paragraph 8 above). The Court also notes the Adjudicator's finding that, following the ceasefire agreement, the applicant would be of no interest to the Sri Lankan authorities because he had been held for short periods and released without charge on each occasion (see paragraph 9 above). Finally, the Court notes the Adjudicator's findings that it was unlikely that the LTTE would have any interest in the applicant and unlikely that they could track him down in Colombo (see paragraph 10 above). … 143. In LP, the AIT considered a previous criminal record and/or arrest warrant to be a significant factor… The Court recalls that the AIT also found that the issue was to establish the credibility for the criminal record, or an arrest warrant, and to decide whether it was reasonably likely to exist in respect of the applicant in the particular case …. In the Court’s view, the present applicant, who was arrested and detained by the Sri Lankan authorities six times, photographed and fingerprinted, can rely on this risk factor, particularly since his claim was found credible on this point. The applicant did not jump bail or abscond from police custody so as to engage this separate risk factor identified by the AIT in LP and the Court accepts the AIT’s view that persons who jump bail or abscond are at a higher level of risk of being identified from police computers at the airport. However, the applicant’s father signed a document to secure his son’s release. … The Court accepts that no firm conclusion can be drawn as to whether the document amounted to a confession. … However in the Court’s view it is not necessary to consider whether the document additionally engages the particular risk factor identified by the AIT as relating to confessions or statements, since whatever the nature of that document, at the very least it amounts to a record of the applicant’s detention. … 145. The Court recognises that it has been over ten years since the applicant was last detained by the Sri Lankan army. However the Court considers that the greatest possible caution should be taken when, as in the applicant's case, it is accepted that a returnee has previously been detained and a record made of that detention. As the AIT found in LP (see paragraph 44 above), such a record may be readily accessible to airport authorities, meaning the person in question may become of interest to the authorities during his or her passage through the airport. Where there is a likelihood that this will result in delay in entering the country, there is clearly a greater risk of detention and interrogation and with it a greater risk of ill-treatment contrary to Article 3 (see paragraphs 131 -133 above). Equally, in light of its observations at paragraphs 130 -136 and 142 above, the Court finds the passage of time cannot be determinative of the risk to the present applicant without a corresponding assessment of the current general policies of the Sri Lankan authorities (see, mutatis mutandis, Saadi v. Italy, cited above, § 43; the Jabari judgment¸ cited above, § 41, in fine). Their interest in particular categories of returnees is likely to change over time in response to domestic developments and may increase as well as decrease. In the Court's view, it cannot be excluded that on any given date if there is an increase in the general situation of violence then the security situation in Sri Lanka will be such as to require additional security at the airport. The Court also recalls its finding at paragraphs 134 -136 above, notably that computerised records are available to the airport authorities. Given that it is undisputed that the applicant was arrested six times between 1990 and 1997, that he was ill-treated in detention and that it appears a record was made of his detention on at least one occasion, the Court considers that there is a real risk that the applicant's record will be available to the authorities at the airport. Furthermore, it cannot be excluded that on any given date the security situation in Sri Lanka would be such as to require additional security at the airport and that, due to his risk profile, the applicantwould be at even greater risk of detention and interrogation.”
“ Is the Defendant's decision to be categorised as irrational or unreasonable or one lacking in anxious scrutiny by virtue of her failure to engage expressly with this issue? In my judgment, it is not since (a) the Defendant justifiably proceeded on the basis that the Claimant's profile was very low and secondly the conclusions expressed in LP and AN&SS do not support the conclusion that it is likely that the Claimant's details were computerised and available at the airport. I appreciate that there are passages in paragraphs 135 and 136 of the judgment in NA which demonstrates that computerised records of some persons who have been detained previously are likely to be available at the airport. In my judgment, however, those passages must be understood against the undisputed fact in that case that the details of NA had been recorded at the time of one of his many arrests. On the basis of the adjudicator's findings in this case and in the light of the recent factual conclusions expressed in AN&SS (as to which see the extracts quoted at paragraph 22 above) there is simply no proper factual basis upon which it would be proper to infer that details of the Claimant's arrest, detention and release in 1998 would be available to the authorities at the airport.”
"That may be right, but in this case the claimant is not merely relying on the random detentions on three occasions to which he has been subject but the prolonged detention to which reference has been made. In the absence of any positive evidence that records have been destroyed in anticipation of the peace process, it is not possible to characterise as fanciful or without substance the claimant's case as to his fears"
“27. … I find the Appellant to be a credible witness and his claim insofar as it relates to his past experiences in Sri Lanka to be credible and to fit with the background information. There were some inconsistencies in his various accounts but an adequate explanation was given by the Appellant for these inconsistencies, which I accepted. I find that he was persecuted by the Sri Lankan Army. 28. I find that the Appellant was an ethnic Tamil who originated from Myliddy, Jaffna. He was briefly involved with the LTTE in 1985-86 and then more substantially between 1999 and 2001, being involved in the transportation of goods and supplies between India and Sri Lanka. Having informed the LTTE that he intended to cease working for them following an incident when his boat was attacked by the Sri Lankan Navy, he was detained by the LTTE until agreeing to continue to work for them. After one further trip he moved to Vavuniya where he was arrested, detained and tortured by the Sri Lankan Army in April, 2001 having been identified to them by members of the EPRLF who reported him to be a pro-LTTE Tamil living within the army controlled area. Following payment of a bribe he was released in August following which he subsequently left the country during the same month. The Appellant has scars, some of which, he claims, were received when he was ill-treated by the army. However, whilst I accept that the Appellant has been persecuted in the past, I do not find that he has established a well-founded fear of persecution for a Convention reason going to the future. … 31. The Appellant has some scarring. … 32. … Scarring, in itself, does not justify a conclusion that the appellant has a well-founded fear of persecution. Not every scar makes a person a refugee and it is not their cause that counts but their effect. It would be wrong to treat scars as being of no consequence simply because they were caused accidentally. The question is whether the scars are such as to give rise to the risk that a Sri Lankan official will think that the person is an insurgent. … 37. The Appellant received some scars as a result of his ill-treatment at the hands of the Sri Lankan Army, including one small scar to the face, but I do not find that they are such as to draw adverse attention from the authorities. I do not find that scarring is an issue in this appeal. … Conclusion 48. Whilst I accept that the Appellant has been persecuted in the past, I do not find that he has established a well-founded fear of persecution for a Convention reason going to the present and to the future. This is largely because of the changes that have taken place within Sri Lanka during the last fifteen months. I have considered the report of Dr Good and noted the misgivings he continues to hold … but other background information … indicate[s] that whilst not all Sri Lankan asylum seekers could be safely returned, appellants such as Mr Aruliraivan can be safely returned. 49. Whilst the Appellant undertook some tasks for the LTTE, principally transporting goods by sea between India and Sri Lanka, he was never a fighting member of the organisation. Although arrested by the authorities on one occasion, he has never been charged or convicted of any offence, nor is he wanted in respect of any offence. It is not likely that any record of his arrest and detention that might exist would show that he was released on payment of a bribe, something that is likely to have an adverse effect on those responsible for his detention. It is likely that he was released because he was of no further interest to the authorities. The payment of the bribe probably assisted his release but it is not likely, even on payment of a bribe, that he would have been released if the authorities regarded him as of continuing interest, a terrorist, a security risk or a person previously involved with the LTTE. There is no evidence of any outstanding warrant issued against him or that the authorities have been looking for him. There is no evidence that he is wanted or is on any wanted list. I do not find that he is likely to be at risk even taking into account his limited scarring. If he should be stopped upon return at the airport it will be for no reason other than to check his identity and even if his one arrest is revealed it is unlikely that he will be detained or at risk. … 50. The Appellant will be returning to a country in which the situation has improved considerably since his departure. Whilst there is still no concluded peace agreement, the cease-fire, is, on the whole, being observed, the peace talks are continuing, the emergency regulations have not been renewed, the Government has lifted the ban on the LTTE. It is part of that cease-fire agreement that those who have been involved with the LTTE would not now be in any way dealt with by the authorities merely because of that involvement. … If there were indications that those involved in any way with the LTTE, or suspected of any such involvement, were being stopped on arrival at the airport and taken into custody for that reason, there would be some indication that it was happening and would have attracted adverse publicity. …. 51. … I do not find that the Appellant has established a well- founded fear of persecution for a Convention reason should he be returned to Sri Lanka. … ”
“11. The determination relates to the risk of returning Tamils to Colombo and problems which they may experience with the Sri Lankan authorities. It was concluded that the evidence does not show that Tamils in Colombo are at risk of serious harm from the Sri Lankan authorities merely because they are Tamils or that it would be unduly harsh to expect a Tamil to relocate to Colombo. A number of factors may increase risk (listed at paragraph 238 of the determination but not intended to be a check list) and those factors and the weight to be ascribed to them, individually and cumulatively, must be considered in the light of the facts of each case. … it is considered that eight out of the twelve factors identified at paragraph 238 of LP (Sri Lanka) apply to your client.”