West Law Report

Cumulative approach in assessing risk of return

Posted in European Court of Human Rights (case), Times Law Report by mrkooenglish on August 1, 2008

From The TimesAugust 28, 2008

Cumulative approach in assessing risk of return

European Court of Human Rights

Published July 28, 2008

NA v United Kingdom (Application No. 25904/07)

Before L. Garlicki, President and Judges Sir Nicolas Bratza, G. Bonello, L. Mijovic, J. Šikuta, P. Hirvelä and L. Bianku

Section Registrar L. Early

Judgment July 17, 2008

The level of risk of ill-treatment in returning failed asylum-seekers to Sri Lanka was indicated by the fact that since 2007 the European Court of Human Rights has granted interim measures preventing the return of 342 Tamil applicants from the United Kingdom.

That Court held unanimously that an accumulation of relevant factors indicated that if applicant NA were expelled to Sri Lanka he would be exposed to a real risk of ill-treatment, in violation of article 3 of the European Convention on Human Rights.

NA, an ethnic Tamil, was born in 1975 in Sri Lanka and lived in London. He entered the United Kingdom clandestinely on August 17, 1999, and claimed asylum the next day on the ground that he feared ill-treatment by the Sri Lankan Army and the Liberation Tigers of Tamil Eelam, the so-called “Tamil Tigers”.

He explained that he had been arrested and detained by the Army on six occasions between 1990 and 1997 on suspicion of involvement with the Tigers. On each occasion he was released without charge. During one, or possibly more periods of detention he was illtreated and his legs had scars from being beaten with batons.

During the 1997 detention the applicant had been photographed and his fingerprints had been taken. His father had signed certain papers in order to secure his release.

He feared the Tigers because his father had done some work for the Army. They had also tried to recruit him on two occasions in 1997 and 1998.

His claim was refused by the Secretary of State for the Home Department on October 30, 2002. His appeal to an adjudicator was dismissed on July 27, 2003. He was issued with removal directions for April 1, 2006. On April 3, 2006, the Home Secretary refused to consider his further representations as amounting to a new asylum application.

After NA’s successive applications for judicial review of the decision to return him to Sri Lanka failed, new removal directions were issued for June 25, 2007. On that date, following the applicant’s request, the President of the competent Chamber of the European Court of Human Rights decided to apply rule 39 of the Rules of Court (interim measures) and indicated to the UKI Government that the applicant should not be expelled until further notice.

In the course of 2007, the Court received an increasing number of requests for interim measures from Tamils who were being returned to Sri Lanka from the United Kingdom and other contracting states. Interim measures had since been granted in respect of 342 Tamil applicants in the United Kingdom.

Relying on articles 2 (right to life) and 3 (prohibition of inhuman or degrading treatment) of the Convention, the applicant alleged that if returned to Sri Lanka, he was at real risk of ill-treatment.

In its judgment the Court held:

I Alleged violation of article 3

The Court agreed with the Government that the complaint under article 2 could be dealt with in the context of its examination of the related complaint under Article 3.

The Court referred to its case law establishing the general principles applicable to expulsion cases. It then set out its approach to the objective information which had been placed before it. On that basis, it assessed the risk to Tamils returning to Sri Lanka and the individual circumstances of the applicant’s case.

(a) Risk to Tamils returning to Sri Lanka

The Court observed as a preliminary matter that the Government proposed to remove the applicant to Colombo. In the light of that, it was not necessary to examine the risk to Tamils in areas controlled by the Tamil Tigers or any other part of the country outside Colombo.

The Court found that the United Kingdom authorities had given serious and anxious consideration to the risk to Tamils returning to Sri Lanka. They had examined all the relevant objective evidence and, just as importantly, considered the appropriate weight to be given to it.

The Court found that the information before it pointed to the systematic torture and ill-treatment by the Sri Lankan authorities of Tamils who would be of interest to them in their efforts to combat the Tamil Tigers.

In respect of returns to Sri Lanka through Colombo, the Court also found that there was a greater risk of detention and interrogation at the airport than in Colombo city.

As to the procedures followed at Colombo airport, the Court considered that at the very least the Sri Lankan authorities had the technological means and procedures in place to identify at the airport failed asylum seekers and those who were wanted by the authorities.

(b) Risk to the applicant

As to the alleged risk to the applicant from the Tamil Tigers, the Court accepted the domestic authorities’ assessment that he would not be at real risk of ill-treatment contrary to article 3 by the Tigers if returned to Colombo.

In assessing the applicant’s position in relation to the Sri Lankan authorities, the Court examined the strength of the applicant’s claim as a result of an accumulation of the risk factors identified by the domestic authorities.

However, compared to the last factual assessment made by the national authorities, it did so in the light of more recent developments and in particular having due regard to the deterioration of the security situation in Sri Lanka and the corresponding increase in general violence and heightened security.

In addition it took a cumulative approach to all possible risk factors identified by the applicant as applicable to his case.

Thus, one such risk factor was a previous criminal record and/or arrest warrant. Also, the applicant’s father had signed a document to secure his son’s release. Although the precise nature of this document was not known, the logical inference was that it would have been retained by the Sri Lankan authorities at the time of the applicant’s release.

As to the applicant’s scars, the Court considered that where there was a sufficient risk that an applicant would be detained, interrogated and searched, the presence of scarring, with all the significance that the Sri Lankan authorities were then likely to attach to it, had to be taken as greatly increasing the cumulative risk of ill-treatment to that applicant.

The Court recognised that it had been over ten years since the applicant had been last detained by the Sri Lankan Army. However, the passage of time could not be conclusive in assessing the risk that he faced without a corresponding assessment of the current general policies of the Sri Lankan authorities.

Their interest in particular categories of returnees was likely to change over time in response to domestic developments and might increase as well as decrease.

In so far as they had been relied on, the Court also examined additional relevant factors: the age, gender and origin of a returnee, a previous record as a suspected or actual Tiger member, return from London, having made an asylum claim abroad and having relatives in the Tigers.

The Court considered that the cumulative effect of the above factors was to increase further the risk to the applicant, which was already present due to the probable existence of a record of his last arrest and detention.

In conclusion, the Court took note of the current climate of general violence in Sri Lanka and considered cumulatively the factors present in the applicant’s case. It held that there were substantial grounds for finding that the applicant would be of interest to the Sri Lankan authorities in their efforts to combat the Tigers.

In those circumstances, the Court found, unanimously, that at the present time there would be a violation of article 3 if the applicant were to be returned.

II Application of article 41

The Court awarded the applicant €4,451 for costs and expenses, less €850 already received in legal aid from the Council of Europe.

Full text: http://www.echr.coe.int

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