By Together Against Genocide (TAG, formerly Tamils Against Genocide), Tuesday, December 13 2011
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IN THE MATTER OF AN APPLICATION FOR A STAY ON REMOVAL ON THE 15TH DECEMBER 2011
GROUNDS UPON WHICH A STAY IS SOUGHT
1. The Claimant seeks a stay on removal pending the resolution of a judicial review application filed by TAG . The application (reference: CO/12153/2011) relates to issues common to all those on the charter flight of proposed returnees to Sri Lanka.
2. TAG’s grounds are attached.
3. TAG’s judicial review application arises as a result of new evidence collated in a UKBA bulletin dated the 30th November 2011.
4. The bulletin makes reference to reports submitted to the UN Committee against Torture that concluded its investigation in respect of reports concerning torture on the 25th November 2011.
5. The UNCAT published its concluding observations which amounted to a damning indictment of the Sri Lankan authorities record on torture.
6. Some of those reports included histories of torture faced by failed asylum seekers.
7. Also in the UKBA bulletin is a detailed reference to a returnee from the UK in 2011 who was tortured on return.
8. TAG submits that the decision to remove failed asylum seekers to Sri Lanka by way of Charter flight on the 15th December 2011, is unlawful.
9. This is because it breaches a legitimate expectation held by the returnee that the policy on removal will be reviewed, in the light of ‘credible and relevant evidence’ [see ministerial statement, 28th November 2011 set out below] concerning safety. This ‘credible and relevant’ evidence has only recently existed in collated form and constitutes the basis of the UKBA bulletin entitled ‘Recent reports on torture and ill treatment’.
10. Out of a sample of 35 clients , 14 were tortured after returning having spent time abroad including the UK. 3 had been subject to enforced removal by the UK. [p7, FTT report].
11. The Bulletin was published on the 30th November 2011. It was published after the policy decision to remove potential returnees.
12. As paragraphs (i) to (v) of the Bulletin states:
‘ii The Bulletin brings to the attention of decision makers a number of reports released between September and November 2011 which document torture and other forms of ill-treatment in Sri Lanka. It provides a selection of extracts from the sources as a guide to the general content of the reports, with a focus on events in 2011. However the Bulletin is not intended to be comprehensive or detailed in its coverage and officials are advised to read all the reports in full. Additionally, the Bulletin makes no attempt to interpret or analyse the information contained within the reports referred.
iii The Bulletin should be read in conjunction with the COI Report Sri Lanka, July 2011 for an understanding of the general human rights situation and specifically ill-treatment and torture in Sri Lanka. If decision-makers require further information, they should submit an information request to COI Service.
iv The Bulletin is compiled wholly from sourced material, as listed in Annex A. It includes information up to, and including, 28 November 2011.
v The Bulletin does not contain any UKBA opinion or policy.
10. Therefore it cannot be inferred that review has taken place as a result of the mere production of the report but there is a presumption that UKBA policy on removals would be reviewed in the light of it.
11. None of the decisions seen by TAG make reference to this material.
12. The policy decision to remove by way of charter flight was at least the 28th November 2011, [judging by the date of other notices] which is the very date of Ministerial reassurance to Joan Ruddock MP that ‘we will continue to investigate any credible and relevant allegations and review our policy in light of any findings’.
13. It is almost certain that the policy decision to remove by way of charter flight was taken before consideration, or informed consideration of the relevant materials referred to in the Bulletin. This flaws the decision to remove , particularly where such removals are so public and bound to attract attention on return. Removal by way of charter flight is a policy statement that the UKBA considers that there is no risk to failed asylum seekers.
14. Given that some of the cases referred to failed asylum seekers including those who had been removed by the UK, failure to have proper regard and review in the light of these materials renders the removals unlawful.
15. The NGOs referred to in the bulletin had handed over the same materials to the UN Committee against Torture for investigation. Those materials included reports relating to the torture of failed asylum seekers.
16. The UN Committee Against Torture:
The Committee against Torture , presided by Mr Claudio Grossman began its consideration of the third and fourth periodic reports submitted by Sri Lanka pursuant to Article 19 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on the 8 November 2011 and concluded on the 25th November 2011.
The materials presented to the UNCAT included the following:
Freedom from Torture [ formerly Medical Foundation] submission to the CAT, November 2011:
Return to Sri Lanka from abroad:
Fourteen of the 35 cases report periods of residence or travel abroad preceding detention and torture: 5 travelled for educational purposes, 3 for family reasons and 4 for the purpose of seeking refuge outside of Sri Lanka. In the remaining 2 cases, the purpose of travel was not stated.
Of the 4 who sought refuge abroad, 3 were forcibly returned to Sri Lanka. In one case the individual had claimed asylum unsuccessfully in the UK a number of years earlier but was returned to Sri Lanka from another European state whilst en route to a non-European state where a new asylum claim was to be lodged. The second case involves a similar scenario –an individual who had claimed asylum unsuccessfully in a European state was returned by a second European state whilst en route to a non-European state where a new asylum claim was to be lodged. The third was returned from another European state after two years of residence, having been refused asylum there. In each of these cases, the person was tortured on return.
Of those 10 cases involving individuals who travelled abroad for non-asylum purposes, 9 returned voluntarily to Sri Lanka (all from the UK). Five returned voluntarily for temporary visits for a variety of family reasons including family sickness, child custody issues, to visit family and attend family celebrations. Two individuals returned due to the disappearance of their fathers and 2 others returned voluntarily. The remaining individual was en route to a non-European state for family reasons, but was returned en route due to the use of false documents.
All of the 14 individuals who had returned to Sri Lanka after a period abroad, whether they left Sri Lanka through a legal route or otherwise, were subsequently detained and tortured.
In 5 of the 14 cases, the episode of detention and torture documented in the MLR occurred over a year and up to 7 years after return. However in 9 cases the individual was detained within days, weeks or a month of their return. Of these 9 cases, 6 were detained in Colombo, either from their home or at checkpoints or from a lodging house. Two were detained at checkpoints elsewhere in the country and 1 was detained directly from the airport on arrival.
Four of the 6 cases detained in 2010 report being arrested from their own home or that of their family, in locations including Kandy and Colombo. One was taken at a checkpoint and the other from his workplace in Colombo. Two of these individuals report being taken by plain clothed ‘officials’ and transported to the detention facility in unmarked ‘white vans’. Four of these 6 individuals had recently returned from abroad, 3 for family or health reasons and 1 due to a refused asylum claim (from the UK and another European state respectively). Five of the 6 cases report detention due to an imputed association with the LTTE through a family member or friend. The sixth case was associated with the political opposition during the 2010 presidential elections.
Of those 8 cases detained in 2009 after the ceasefire (June onwards), the majority report being taken from their homes in Colombo , Batticola and Kalmunai. These individuals were taken in some cases by plain clothed ‘officials’, and in others by uniformed police. One individual was visiting Sri Lanka from the UK and was accused of having fundraised for the LTTE. Three others had an imputed association with the LTTE through family members or their own history of detention and 1 was a supporter of an opposition party.
The remaining 3 cases were taken at a checkpoint in Omanthi, at the airport (removed to Sri Lanka following a refused asylum claim) and during a round-up of Tamils in Vavuniya following LTTE activity in the area.
Concluding observations of the Committee against Torture:
On 25 November 2011, the final day of its 47th session, the Committee published its concluding observations on Sri Lanka.
As to the quality of the Sri Lankan reports, the Committee remarked that it regretted that "the report lack statistical and practical information on the implementation of the provisions of the Convention".(13)
The Committee pointed out that it remained "seriously concerned about the continued and consistent allegations of widespread use of torture and other cruel, inhuman or degrading treatment of suspects in police custody, especially to extract confessions or information to be used in criminal proceedings", about the Sri Lanka's "failure in practice to afford all detainees, including those detained under anti-terrorist laws, with all fundamental safeguards from the very outset of their detention",(15) and about the "reports documenting individual cases of torture and ill-treatment where the victims were allegedly randomly selected by police to be arrested and detained for what appears to be an unsubstantiated charge and subsequently subjected to torture or ill-treatment to obtain a confession for those charges".(16)
The Committee mentioned the allegations of secret detention centers (17) and enforced disappearances including those documented by the Working Group.(18)
The Committee expressed its concern at the reports of intimidation and harassment of human rights defenders, lawyers, journalists, and other civil society actors.(19) It mentioned by name the cases of Prageeth Eknaligoda, Mr Weliamuna and some others.(20)
As to the conditions of detention, the Committee expressed concern "at the deplorable levels of overcrowding and poor conditions prevailing at police stations and prisons, especially the lack of hygiene, inadequate medical care"(21)21 and reports on death in custody.(2)
On the National Human Rights Commission, the Committee expressly requested the Government of Sri Lanka to provide information on the follow-up to its recommendations made after the surprise visit to the Mount Lavinia police station on 15 August 2011.(23) The Committee expressed its concern on the fact that the independence of the National Human Rights Commission had been undermined.(24)
Most importantly, the Committee underlined "the prevailing climate of impunity in and the apparent failure to investigate promptly and impartially wherever there is reasonable ground to believe that an act of torture has been committed".(25) The Committee's concerns about the lack of protection of victims and witnesses were supplemented by the mention of the assassinations of Messrs G. Perera and Mr S.K.A.S. Nishantha Fernando.(26) The Committee reiterated its previous recommendation on the establishment of an independent body to conduct the prompt, impartial, and spontaneous investigations into the allegations of torture and ill-treatment committed by the police officers.(27)
As to the Lessons Learnt and Reconciliation Commission, the Committee noted its "apparent limited mandate" and "alleged lack of independence".(28)
As to the training of law-enforcement personnel, the Committee invited the authorities to "assess the effectiveness and impact of training programmes and education on reducing the incidence of torture and ill-treatment" and support the training on the use of the Istanbul Protocol. (29)
On redress, the Committee noted lack of the legislative provision on compensation or other forms of reparation for torture victims. The Committee reiterated its previous recommendation that the Government of Sri Lanka "should ensure that appropriate rehabilitation programmes are provided to all victims of torture and ill-treatment, including medical and psychological assistance".(30)
The Government of Sri Lanka is requested to furnish the follow-up information to the Committee by 25 November 2012 (31) and their fifth periodic report by 25 November 2015.(32)
17. POLICY STATEMENTS GIVING RISE TO LEGIMITATE EXPECTATION OF REVIEW:
a. ‘We will continue to investigate any credible and relevant allegations and review our policy in light of any findings’.
Alistair Burt (Parliamentary Under Secretary of State (Afghanistan/South Asia, counter terrorism/proliferation, North America, Middle East and North Africa), Foreign and Commonwealth Office; North East Bedfordshire, Conservative. Sri Lanka: Deportation Foreign and Commonwealth Affairs ... Hansard source (Citation: HC Deb, 28 November 2011, c685W),
b. [We] "constantly monitor the country situation, and issues of safety on return have not arisen. There is no evidence that those who were previously removed to Sri Lanka have been mistreated. All those who returned to Sri Lanka last week passed through border control procedures and were allowed to proceed without incident."
Chris Dix: The South Asia Regional Director of the UK Border Agency interviewed by the Ratmalana-based newspaper The Sunday Leader. (27 June 2011).
c. The UKBA’s Chief Executive, Rob Whiteman – on behalf of Immigration Minister Damian Green – stated that: “The return of individuals is not enforced unless we and the courts consider that it is safe to do so.”
18. The Policy is to be contrasted with this case history taken from ‘Out of the Silence: Ongoing torture in Sri Lanka. Report from the FTT 2009 – 2011’.
19. The case history below is extracted in the Bulletin but was obtained after the FTT’s submission to UNCAT.
20. Rohan was tortured on his return to Sri Lanka from the UK in early 2011. He was referred to Freedom from Torture (formerly the Medical Foundation for the Care of Victims of Torture) several months ago when he escaped – on payment of a bribe by his family – and flew back to the UK.
“After I arrived in Sri Lanka and tried to leave the airport, two men stopped me, asked for my passport and asked me to come with them. They showed me their IDs – two people from CID[Criminal Investigation Department]. They took me out of a different entrance and pulled me inside a van. They started to ask questions about why I had come back to Sri Lanka – saying that I had escaped the first time but not this time. They tied my hands and legs and kicked me very badly.
“I was taken to a building. They asked questions like ‘why have you come back again?, ‘what did you do in the UK?’, ‘where is your brother?’ [an LTTE member]. I said I had no contact with him. They tortured me inside the room by removing my clothes and hitting me with burning irons. I was feeling a burning sensation all over my body. They kept me for two days and I found my body was all swollen. On the third day they put me inside the van. I thought they were going to shoot me. Later I realised that my family had given them some money and because of that I was released.”
21. On the 28th November 2011 the Parliamentary Secretary of State, Alastair Burt stated in parliament that:
‘We will continue to investigate any credible and relevant allegations and review our policy in light of any findings’.
22. There is no evidence or statement to indicate that the UKBA have considered whether collective expulsion by way of charter flight on the 15th December 2011 is appropriate given public statements by the UKBA that the policy on removal will be reviewed.
23. It is submitted that it is almost certain that the decision to remove failed asylum seekers was taken without any review of policy in the light of the new reports and the observations of the UNCAT.
24. TAG also submit that the policy to remove is unlawful because it has been taken with no regard to the judgment of the Swiss Federal Administrative Court in Urteil E-6220/2006 on the 27th October 2011, but published on the UNHCR website recently.
25. This decision by the Federal Administrative Court updates the Court's decision of 14 February 2008 (Tribunal administratif fédéral ATAF 2008/2). It states that political opponents, critical journalists, human rights activists, critical NGO representatives, as well as victims of or witnesses to serious human rights violations and persons who are presumed to have close contacts to the LTTE represented groups are still at risk of persecution in Sri Lanka. In general, returns to Sri Lanka including the East and North are considered reasonable, with the exception of Vanni region where no returns should take place. For persons who left the northern province some time ago, the existence of social network and chances for securing minimal living conditions should be considered.
26. Given the harmonization of asylum procedures in the EU, this judgment is highly persuasive.
27. This challenge raises important issues of fundamental rights and the Claimant ought to have the opportunity to access the Court.
 [Tamils Against Genocide] Tamils Against Genocide Inc. is a non-profit litigation advocacy organization incorporated in the United States.