Tortured Tamil refugee wins in Court of Appeal 

RS (Sri Lanka) v Secretary of State for the Home Department [2019] EWCA Civ 1796 (28 October 2019) 

The Court of Appeal has held that RS, a Sri Lankan national, who had been detained and tortured by Sri Lankan authorities owing to his membership of the LTTE and who had escaped, had a well-founded fear of serious harm if returned, because it was inherently likely that he was the subject of an arrest warrant and on the country’s stop list. The court held that FTT had been wrong to hold that there was not a reasonable likelihood that an arrest warrant had been issued. RS entered the UK in May 2013 and immediately claiming asylum on arrival. In Sri Lanka he had been detained shortly after the civil war ended in May 2009 and he was tortured because of his association with the LTTE/Tamil Tigers, a separatist/terrorist organisation. After spending 18 months in detention RS made his escape by hiding in a removable cesspit assisted by those responsible for emptying it. He then went into hiding and ultimately used forged papers to travel to the UK via India. He was refused asylum in 2014 and his appeal was dismissed by the FTT and the UT. His application for permission to appeal was was stayed pending the outcome in the MP (Sri Lanka) [2016] UKSC 32 proceedings (discussed here) but it later became clear that those proceedings had no bearing on RS’s case. These facts were found by the FTT or were common ground before the judge. RS was a low-level member of the LTTE between 1995 and 2009. 

He worked for the finance division, undertaking vehicle maintenance and sending food, weapons and supplies with vehicles, arranging transport within the LTTE, in the peaceful period from 2004 to 2006 he worked for an engineering company. He was captured by the Sri Lankan army in 2009 and was tortured in detention and he could not reasonably be expected to have known that there would be a progressive release of detainees (many had been released in the period before and after January 2011). His account regarding his escape was credible and while he was staying with relatives in July 2011 army officers from a nearby camp came searching for “escapees”, but they did not find RS there. His account did not indicate that army officers had identified him in particular as the object of their search before they came. The FTT did not make findings about the extent of injury which RS suffered at the hands of his torturers. However, it had before it a detailed report of a medical practitioner whose view was that RS’s multiple scars were highly consistent with having been inflicted by blows from an iron bar, a long wooden stick, a thick cable, a rifle butt, a fall and shrapnel wounds. The conclusion was that the full picture presented by RS’s scars was strong evidence of the trauma and torture described by him.

Background

The Home Office accepted in its refusal letter that this report “holds a lot of weight” and the decision-maker accepted that the Sri Lankan army tortured RS due to his being a member of the LTTE. RS appealed to the FTT, which judged that while his escape from detention was plausible, the conclusion did not follow that he would be of interest to the authorities since many former LTTE members had been released. He was therefore not a refugee. The UT agreed with the FTT. RS argued that in assessing whether he would be at risk on return, neither the FTT nor the UT had properly considered the fact that he had escaped from detention, and in particular whether he would be on a stop list as described in paragraph 356(7)(d) of the country guidance case GJ and others (post-civil war returnees) Sri Lanka [2013] UKUT 319 (IAC) whereby:

A person whose name appears on a computerised “stop” list accessible at the airport, comprising a list of those against whom there is an extant court order or arrest warrant. Individuals whose name appears on a “stop” list will be stopped at the airport and handed over to the appropriate Sri Lankan authorities, in pursuance of such order or warrant.

In GJ the expert view of Mr Anton Punethanayagam (a barrister who had practised at the Sri Lankan Bar in both Colombo and Vavuniya and had represented over 3000 detainees over a period of 20 years and whose standing in the legal community in Sri Lanka was described by the UT as “high”) was that the incidence of bribery was high when it came to LTTE members being released but that did not annul their past records and “hence such cases would normally be recorded as escaped from detention in the database of the Police. Subsequently an absconder action will be commenced and the detainee’s details would be passed to the National Intelligence Bureau.” Dr Chris Smith, an Associate Fellow of the Royal Institute for International Affairs, Chatham House and an adviser to DFID and the FCO, also gave expert evidence in GJ that the recording of a person as having escaped would lead to the issue of an arrest warrant.

The Country of Origin Information (COI) Report for Sri Lanka, at paragraph 25.32, had extracts of the FCO’s information gathering visit to Colombo in August 2009 and one of the extracts stated that “If an individual has jumped bail/escaped from custody. The senior intelligence official said that the person would be produced at Court. The Superintendent Police, Criminal Investigations Department (CID) agreed. The representative from Centre for Policy Alternatives said that the individual would definitely be stopped.” 

The FTT and UT had been ignorant of this material which should have been provided and the duty to ensure that such material is before the decision-maker is a duty falling on the SSHD. The duty applies whether or not the material is available to the public, because the question of whether a person should be returned to a country where he or she may face a risk of persecution or serious harm should not depend on the diligence of that person’s legal representatives: UB (Sri Lanka) v SSHD [2017] EWCA Civ 85. 

RS submitted that in assessing whether he would be at risk on return, neither tier of the Tribunal had properly considered the key fact that he had escaped from detention, and in particular whether he would be on a stop list as described in paragraph 356(7)(d) of the country guidance imparted in GJ. It was obvious that escape from custody would, in the normal course of things (in the absence of steps being taken to falsify records) lead to an arrest warrant being issued. If an arrest warrant is issued, the fact of its issue would be passed to the National Intelligence Bureau and the escapee’s name would surely find its way onto the stop list at the airport, rather than merely appearing on a watch list. RS relied on Mr Punethanayagam and Dr Smith’s evidence in GJ, and the COI Report.

The Court of Appeal 

The guidance in paragraph 356(7)(d) of GJ remained Floyd, King and Henderson LJJ’s point of departure and with these in mind Floyd LJ deduced that: 

22. It follows that the existence of an unexecuted arrest warrant is likely to lead to the person who is the subject of the warrant being included on the stop list. The Secretary of State’s refusal letter of 8 July 2014 stated that it was not accepted that RS fell within paragraph 356(7)(d) of GJ because it was not accepted that RS had escaped from detention. The Secretary of State did not at that stage suggest that those who gave a credible account of escape from detention were not likely to be the subject of an arrest warrant and, as a consequence, be on the stop list. 

His Lordship then addressed the core question of he FTT was wrong in law in failing to find a risk on return, given in particular that RS had given a credible account of having escaped from detention.  The FTT had rejected the case by stating that it was provided no reason to hold that there was any reasonable likelihood that any court order or arrest warrant has been issued, and that accordingly RS’s name would appear on an airport stop list. Floyd LJ held that: 

25. I have no reason to doubt that the sequence of events from escape to arrest warrant to stop list was not specifically articulated before the FTT judge. Further, I have already explained that the judge did not have the Country of Origin Information Report because of a failure by the Secretary of State to draw it to the court’s attention. It also seems likely that the passages from GJ on which RS relies were not specifically brought to the judge’s attention either. Notwithstanding these points, I consider that the FTT judge made an error of law. In looking for positive reasons to find that an arrest warrant had been issued, the judge has, in my judgment, completely overlooked the inherent probabilities of the case. 

It was true that RS had been arrested after the end of the war and remained of sufficient interest to Sri Lankan authorities who detained him for 18 months and tortured him. This period extended up to and beyond the beginning of the release of LTTE detainees. RS had in fact escaped from custody (in fact he had not been released) with the help of the cesspit emptier (a contractor). On those facts it seemed to be inherently likely that the authorities would detain him again by way of issuing an arrest warrant. This led Floyd LJ to hold:

26. The inherent probabilities are confirmed by the material to which I have referred from GJ and the Country of Origin Information Report. Even without these materials, however, the judge was wrong to say that there was no reason to find that an arrest warrant had been issued. There was every reason to expect that an arrest warrant would be issued in RS’s case, given the facts to which I have referred. The authorities obviously have an interest in an LTTE member who they have kept in detention for 18 months, and are unlikely to cease to have that interest if the detainee escapes. That inference was supported by the evidence that the Sri Lankan army conducted a search for “escapees”, even if the particular search in question was not targeted at RS.

When deciding whether a person has a well-founded fear of persecution or serious harm, the court needed to apply a test whereby the applicant must have a subjective fear, and that fear must be objectively justified. The standard to which the fear must be objectively justified is low and falls well short of the balance of probabilities and in Sivakumaran [1988] AC 958 Lord Keith put the test as “a reasonable degree of likelihood”.

Applying that standard, in the FTT erred in law by holding that there was not a reasonable degree of likelihood that RS was the subject of an arrest warrant and was on the stop list. The FTT failed to have regard to the fact that RS was an escaped detainee against whom it was likely that an arrest warrant would have been issued. 

The Court of Appeal proceeded to decide the matter for itself since it permitted only one outcome. It judged that evidence is considered as a whole, taking account of the inherent probabilities, RS’s account of his treatment and escape, the relevant parts of GJ and the COI Report there was only one answer, namely that RS had a well-founded fear of serious harm if returned to Sri Lanka. He was a refugee. 

Comment 

Sri Lanka is a popular tourist destination but this case ably shows that the paradise island plagued by terrible problems. On 16 November 2019, in a high stakes election where no sitting president, prime minister or opposition leader contested for the president’s office, Mr Gotabaya Rajapaksha won the presidency and is set to take office from January 2020.

He won 52.2 per cent of the vote. No doubt the Rajapaksha will run the island country with an iron fist and Tamils will continue to face problems in the future. Mr Gotabaya Rajapaksha is the brother of former president Mr Mahinda Rajapaksa and served in the latter’s cabinet as defence minister and together the brothers are credited with crushing the Tamil Tigers and ending the fractious civil war in the country. Mr Mahinda Rajapaksa is said to be eyeing the office of prime minster when parliamentary elections are held next year. However, new challenges are now confronting Sri Lanka because of the deadly terror attacks in April this year, when ISIS terrorists set off a series of bombs in churches and hotels in Sri Lanka on Easter Sunday and killed at least 290 people and injured hundreds of others.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Appeals, Article 3, Asylum, Court of Appeal, Politics, Sri Lanka, Terrorism and tagged , , , , , . Bookmark the permalink.

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