Update on Ongoing TAG Litigation to Address Torture Risk to UK Returnees
By TAG, Saturday, February 25 2012
Human Rights Watch (HRW) has published a statement citing evidence of several cases of the detention and torture of returnees from the United Kingdom. This statement which we believe significantly changes the playing field on asylum litigation can be found here:
In summary HRW says "The British government has an international legal obligation not to deport people who have a credible fear of torture upon return. Convincing reports of arbitrary arrests and torture demand that the UK government suspend returns of rejected Tamil asylum seekers to Sri Lanka until it can fairly and thoroughly assess their individual claims based on up-to-date human rights information on Sri Lanka."
This is precisely the argument made in December by TAG in its case Tamils Against Genocide v United Kingdom. In december we published the grounds of the TAG case here:
TAG argued that deportations should be halted based on new evidence collated in a UKBA bulletin dated the 30th November 2011. This bulletin makes reference to reports submitted to the UN Committee against Torture (UNCAT) that concluded its investigation in respect of reports concerning torture on the 25th November 2011. The UNCAT published its concluding observations which amounted to a damning indictment of the Sri Lankan authorities record on torture.
TAG argued that UKBA's decision to remove failed asylum seekers to Sri Lanka by way of Charter flight on the 15thDecember 2011, is unlawful. 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’.
Mittel J. ruled that TAG could not bring a 'generic' application against the Secretary of State for the Home Department (SSHD), currently Theresa May, and the arguments used in the above grounds should be brought individually in the context of individual appeals.
We recommended that solicitors incorporate the generic TAG grounds with the specific grounds of their clients. We understand that many who did so, succeeded in December.
The case Tamils Against Genocide v United Kingdom on the above grounds is now before the European Court of Human Rights (ECTHR): application number 77045/11, TAG being represented by Birnberg Peirce and Partners. It will take some months to be heard and it will not prevent deportations in the mean time.
If the ECTHR ultimately rules the deportation unlawful UKBA may be forced to grant asylum to the deportees. In the event that UKBA contributed to the torture by for example handing over confidential documents belonging to the returnee to GOSL a damages claim may arise.
The HRW statement of 25th February provides fresh evidence to support the grounds raised in TAG's case. We are aware the other NGOs also hold unpublished fresh evidence.
TAG will be supporting fresh grounds incorporating the HRW statement and other recent developments including the Swiss and New Zealand rulings (see our previous articles) - as before these are generic grounds. TAG will sponsor a lead case based on these fresh grounds. Vasuki solicitors are instructed on this lead case.
Asylum seekers and their solicitors have the following options:
Option 1: they may request a copy of the new grounds from TAG by emailing us at email@example.com and the incorporate these points in their individual applications - tailoring them as appropriate based on whether they are applying for Judicial Review or to the Court of Appeal.
Option 2: If they have exhausted individual remedies, they can instruct Vasuki solicitors to add their names to the lead case that is being run by them.
Option 3: They may be able to do both option 1 and 2 but will need to take advice on this based on their situation.
The fresh general grounds incorporating the new evidence of torture on return (published by HRW on saturday the 25th) will be available from TAG by sunday the 26th. Please email firstname.lastname@example.org prior for more information, leaving your name, contact number, solicitor firm name and solicitors name if applicable.