It is no secret that the UK Border Agency (UKBA) makes mistakes. This case is about how the authorities breached their statutory obligations in respect of disclosure as set out in section 13 (Proof of identity of persons to be removed or deported) of the Immigration and Asylum Act 1999: so held Mr Justice Ouseley. It is also not a secret that the government of Sri Lanka rushed in to exterminate the Tamil insurgency in that country. The problem was that a lot of innocent civilians died because the Sri Lankan army was “ordered to finish the job by whatever means necessary.”
ABC, the claimant or “C”, entered the UK on his Sri Lankan passport and claimed asylum: his application was refused, his appeal was dismissed and he applied for reconsideration. C’s family remained in Sri Lanka. The AIT decided against him because it felt that C would deceive to remain in the UK. But the proceedings recorded that he was kidnapped for ransom and released upon payment: although he was not mistreated, he suspected state elements which “worked with an offshoot of the LTTE”, §3: see post on another LTTE related JR claim here. C was detained while reporting and in September 2011 the SSHD set directions for his removal. Like other Sri Lankan Tamils, C resisted removal by judicial review and argued that a document evidencing that he was a failed asylum seeker was disclosed to the Sri Lankan High Commission (SLHC). The application was refused but later renewed. Upon renewal, on C’s request, the SSHD admitted disclosing his IS33 – an internal document consisting of “yes/no” answers to questions making it obvious whether or not C had claimed asylum – to the SLHC in advance of making it available to him “shortly before the hearing into the renewed application”, §4.
For Ouseley J, it was “perfectly clear” that the disclosure was contrary to section 13 of the Immigration and Asylum Act 1999 which provides for how the identity of a person to be removed or deported is to be proved: “in providing identification data [for the purposes of issuing a travel document], the Secretary of State must not disclose whether the person concerned has made a claim for asylum.”
C raised further grounds and argued that removing him on an emergency travel document using prohibited disclosure was wrong and removal directions could not be issued. Moreover, he claimed that the wrongful disclosure – which was also a breach of article 8 ECHR – gave rise to a fresh asylum claim. But before Ouseley J, C’s counsel did not argue that the disclosure prevented removal and required ILR to be granted.
Ouseley J noted that although the disclosure was wrong, statute itself was silent on its consequences. In Shanmuganathan  EWHC 1293 Admin, the argument that a fresh claim arose as a result of the prohibited disclosure was not accepted by the court. Ouseley J agreed and said that “the clearest possible statutory language” was needed to infer that “an individual could not be removed at all”, §11. The purpose of the prohibition was to safeguard the interests of failed asylum seekers, §13. But the abuse of power “by deliberate and cynical disclosure … was not one to be remedied” by granting ILR to someone who relied on the government’s deliberate actions contrary to a statutory provision, §12.
On the question of whether, owing to the cynical disclosure, C had made further representations capable of amounting to a fresh claim, the SSHD’s answer was that at best C’s amended grounds argued that the disclosure could prevent removal (not pursued by C) or it could raise the risk C faced, §15. Since there was no increased risk, the amended grounds were incapable of being seen as advancing fresh representations to support a further asylum claim. From C’s perspective, not only was it a fresh claim, it also attracted a right of appeal if it was dismissed.
Ouseley J accepted that the renewed grounds said that disclosing the IS33 amounted to a fresh claim that had not been answered: hence, the question arose in his Lordship’s mind about where the above arguments stood, §18. The court noted that C was not ill-treated, did not engage in politics, he could not identify who (government?) abducted him and his account was not believed. Equally, nothing connected “to the substance” of C’s asylum claim was raised at the Emergency Travel Document interview; he would leave on his Sri Lankan passport and all the Sri Lankan government would know was that he unsuccessfully claimed asylum (and appealed) in the UK, §19.
The SSHD relied on TK (Tamils – LP updated) Sri Lanka CG  UKAIT 00049, where the tribunal revisited LP (LTTE area – Tamils – Colombo – risk?) Sri Lanka CG  UKAIT00076. Under para 149 of TK, headed as the risk factor Having made an asylum claim abroad (xi), there was “no evidence whatsoever” that deportees met with difficulties if the Sri Lankan authorities knew of their failed asylum claims. The tribunal retained the risk factor, but regarded “it as likely now to be a relatively minor contributing factor at best.”
Ouseley J did not agree with C’s argument that the SSHD would be acting unlawfully if she rejected the material before the court as a fresh claim and his Lordship was also dismissive of the SSHD’s position that the amended grounds could not make fresh representations amounting to a fresh claim, §§ 22 – 23. It was, “in the first place”, for the SSHD “to apply her mind” to the issues rather than for the court to decide her legal views for her, §24.
Ouseley J was:
 … reluctant also to hold that where an event of this sort occurs in breach of the statute, the Secretary of State is not obliged to consider the issues raised and whether her unlawful act has created a situation in which an asylum seeker faces a risk which he would not otherwise face, which might amount to a fresh claim. It is not right, in my judgment, for the court simply to say where something of this sort happens that it itself concludes that there is no increase in risk. The remedy for the breach, if representations are made, is for the Secretary of State to consider whether there is indeed a fresh claim.
Ultimately the court declared:
 … that the Secretary of State breached section 13 in providing IS33 to the Sri Lankan High Commission. I decline to hold that the Secretary of State would act unlawfully in not holding there to be a fresh claim, but I require the Secretary of State to deal with the claim raised in the amended grounds.
SSHD did not resist costs, §27 – 34.