CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 17 juillet 2008

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display:inline-block }     FOURTH SECTION         CASE OF NA. v. THE UNITED KINGDOM     (Application no. 25904/07)           JUDGMENT     STRASBOURG   17 July 2008       FINAL     06/08/2008     This judgment may be subject to editorial revision. In the case of NA. v. the United Kingdom, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Lech Garlicki, President,   Nicolas Bratza,   Giovanni Bonello,   Ljiljana Mijović,   Ján Šikuta,   Päivi Hirvelä,   Ledi Bianku, judges, and Lawrence Early, Section Registrar , Having deliberated in private on 24 June 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 25904/07) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Sri-Lankan national, Mr NA. (“the applicant”). 2.     The applicant was represented by Ms N. Mole, a lawyer practising in London with the AIRE Centre. The United Kingdom Government (“the Government”) were represented by their Agent, Mr D. Walton of the Foreign and Commonwealth Office. 3.     The applicant alleged that if returned to Sri Lanka, he was at real risk of ill-treatment contrary to Article 3 and/or a violation of Article 2 of the Convention. 4.     On 21 June 2007, the President of the Chamber to which the case was allocated acceded to the applicant’s request not to have his name disclosed (Rule 47 § 3 of the Rules of Court). 5 .     On 25 June 2007, the President of the Chamber decided to apply Rule   39 of the Rules of Court, indicating to the Government that it was desirable in the interests of the parties and the proper conduct of the proceedings that the applicant should not be expelled to Sri Lanka pending the Court’s decision. On the same day, the President decided to give notice of the application to the Government and granted it priority under Rule   41 of the Rules of Court. Under the provisions of Article 29 § 3 of the Convention, the President further decided to examine the merits of the application at the same time as its admissibility. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE A.     The applicant’s domestic proceedings 6.     The applicant was born in 1975 in Sri Lanka. He currently lives in London. He is of Tamil ethnicity. 7.     The applicant entered the United Kingdom clandestinely on 17   August 1999 and claimed asylum the next day. He stated that he feared ill-treatment in Sri Lanka by the Sri Lankan army and the Liberation Tigers of Tamil Eelam (“the LTTE”). 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 LTTE. Following his last detention he went into hiding until his family managed to fund his journey to the United Kingdom. He feared the LTTE on account of their adverse interest in his father who had done some work for the army. They had also tried to recruit the applicant on two occasions in 1997 and 1998. 8 .     His claim was refused by the Secretary of State on 30 October 2002. His appeal against that decision was heard and dismissed by an Adjudicator on 27 July 2003. It was found that the applicant’s account was credible: namely, he had been arrested by the army on some six occasions between 1990 and 1997 on suspicion of his involvement with the LTTE. He was detained for less than twenty-four hours on the first occasion and for two days on the last. There was no evidence as to how long the other periods of detention had lasted. On each occasion he was released without charge. During one or possibly more of these periods of detention he was ill-treated and his legs had scars from being beaten with batons. According to the Adjudicator, it may have been that the arrests took place in the course of round-ups. During the 1997 detention the applicant was photographed and his fingerprints were taken and his father signed certain papers in order to secure his release. He went into hiding in a temple and wanted to leave Sri Lanka at that stage but it took time for his mother to obtain money from his brother to pay the agent for his departure. 9 .     However, the Adjudicator found that the applicant’s fear of ill-treatment by the army upon his return was unjustified. It was noted that, since his departure from Sri Lanka, there had been a ceasefire between the army and the LTTE for a considerable time, checkpoints had been dismantled, and the LTTE had been able to open political offices and roads in the north. It was unlikely that he would attract any interest on the part of the authorities upon his return. Even if the record of his arrests was found it would be seen that he had been held for short periods and released without charge on each occasion. There was no record that he had ever been involved with the LTTE or that he had ever been wanted by the authorities. There was no reason why he should be strip-searched on return and, even if his scars were found, they would not cause the authorities to take an interest in him, certainly not to the extent of detaining and ill-treating him. 10 .     As to his fear of the LTTE, the Adjudicator appeared to accept that the applicant’s brother had done non-combative work for the LTTE, though he was never a member. He, the brother, had been arrested by the army but never charged and had left Sri Lanka for Saudi Arabia in 1997. It was found unlikely that the LTTE would still have any interest in the applicant and if he was settled in Colombo it would be unlikely that they could track him down. In any event, he could apply to the authorities for protection. As to his argument that he was in need of psychiatric treatment as a result of post-traumatic stress disorder, it was found that adequate treatment would be available in Sri Lanka. 11.     He was issued with removal directions for 1 April 2006 and made further representations attempting to lodge a fresh asylum application on 29   March 2006. On 3 April 2006 the Secretary of State refused to consider his further representations as amounting to a new asylum application. The general situation in Sri Lanka did not indicate any personal risk of ill-treatment and there was no evidence that he would be personally affected upon return. The fact that he had been away from Sri Lanka for the past seven and a half years suggested that he would hardly be of any interest to the Sri Lankan authorities. 12.     His application for permission to apply for judicial review was refused on 23 May 2006 on the papers by Mr Justice Collins who stated: “There is no question but that the situation in Sri Lanka has deteriorated over the past few months and to such an extent that there is a real prospect [that the full scale war between the LTTE and the authorities will recommence. However, that does not of itself mean that no-one can be returned. The adjudicator accepted the claimant’s account but noted that he had only been detained for short periods, possibly in general round ups, and had not assisted the LTTE. All this was over 7 years ago. In the circumstances, it is not possible to say what has been happening creates a real risk of relevant ill-treatment for this claimant. Thus I do not think there is any arguable error of law in the defendant’s decision.” 13.     The applicant’s renewed application was refused by Mr Justice Burnton at an oral hearing on 18   August 2006. 14.     The applicant was then issued with removal directions for 10   January 2007. On 9 January 2007, he made further representations to the Secretary of State arguing, inter alia , that removal would be incompatible with his rights guaranteed by the Convention. When the Secretary of State did not respond, on 10 January 2007 the applicant sought to challenge this failure by judicial review. 15 .     It appears that the same day, the Secretary of State did in fact reject these representations as not amounting to a fresh claim. The Secretary of State relied on the findings of the Adjudicator and the observations of Mr   Justice Collins of 23 May 2006. The Secretary of State also considered a paper submitted by the applicant which had been issued by the United Nations High Commissioner for Refugees (UNHCR) on 22 December 2006, entitled “the UNHCR Position on the International Protection Needs of Asylum Seekers from Sri Lanka” (“the UNHCR Position Paper” see paragraphs 65–68 below). He found, however, that the paper was general in nature and therefore little weight could be attached to it. Consideration was given to the applicant’s claim that the political and security situation in Sri Lanka had worsened and whilst it was acknowledged that there had been some problems with the peace process, the LTTE and the Sri Lankan authorities were committed to peace and working towards an agreement. Notwithstanding two bomb attacks in Colombo, there was a “distinct geographical limitation” to recent incidents and it was open to the applicant to avoid the northern and eastern areas affected by the continuing operations of the Sri Lankan armed forces and the LTTE. The majority of Tamils could live in Colombo and the south without harassment. Recent security operations in Colombo were also noted but it was not considered that Tamils in Colombo were at risk of persecution due to their ethnicity or political opinions. The majority of people detained had been quickly released following identity checks. In terms of internal relocation, it was not unduly harsh to return failed asylum-seekers there. While there had been increasing levels of disappearances in Sri Lanka, progress had been made by the creation of an independent body to observe government investigations. The Secretary of State concluded that the points made in the applicant’s submissions had not been previously considered, but taken with the materials considered in the original refusal of the applicant’s asylum claim and the determination of his appeal by the Adjudicator, the new materials would not have created a realistic prospect of success and the submissions did not therefore amount to a fresh asylum claim. 16.     The applicant then made an out of hours application for an injunction to the High Court. This was granted by Mr Justice Underhill and the removal directions in place for the same evening were cancelled. In his subsequent order of 15 January 2007, Mr Justice Underhill stated: “I considered the Secretary of State’s careful letter [of 10 January 2007] and am mindful of the fact that [the applicant] has had a previous application for judicial review dismissed. But in my view it is sufficiently arguable that the recent further deterioration in the situation in Sri Lanka may justify a fresh claim to make it just for removal to be deferred until this issue can be properly considered. I note in particular para. 34 (a) of the recent UNHCR report [which contained the UNHCR’s recommendations in respect of Tamils from the north or east – see paragraphs 65 – 68 below]. I am aware that there are other pending applications for permission to apply for judicial review raising the same issue.” 17.     On 14 February 2007 Mrs Justice Black refused the applicant’s application for permission to seek judicial review of the Secretary of State’s alleged failure to consider and determine the new representations made on 9   January 2007. She stated: “In fact [the Secretary of State] did consider the further representations and, in a letter of 10 January 2007, refused to treat them as a fresh claim. Strictly speaking that disposes of the proposed [judicial review] application. However, it is clear that the claimant seeks in fact to advance a more fundamental challenge to the removal directions on the basis that the situation in Sri Lanka has deteriorated since the matter was last considered and has reached a point where the claimant would be at risk on return. Reliance is placed on a UNHCR document dated 22 December 2006 setting out the dangerous situation in Sri Lanka...Underhill J granted an injunction prohibiting removal on 15 January 2007, apparently referring to the deterioration in the situation in Sri Lanka and particularly para 34(a) of the UNHCR report. It is understandable why he took this view. However, now that some detail of the claimant’s immigration history is available, it does not appear that he had advanced anything significantly different in the letter of 9   January 2007 from that which was considered when representations were made on his behalf in March 2006 and in particular during the JR proceedings that concluded with an oral permission hearing on 18 August 2006. There is material in the January 2007 letter in addition to the UNHCR report which is later but there is also material that in fact relates to the first half of 2006...Whilst I note with anxiety para 34(a) of the UNHCR report as Mr Justice Underhill did (and the contents of that report generally), in the light of the reasoning concerning this particular claimant who has been assessed by the adjudicator as not of interest to the authorities, the material does not amount to sufficient in my view to justify granted permission to commence a judicial review of the decision of 10 January 2007. The injunction granted by Underhill J will, however, be continued until either the time for renewal orally has expired without such an application being made or determination of the oral permission hearing if there is one.” 18.     The applicant then sought to renew his application for permission to apply for judicial review, submitting detailed amended grounds for his application on 21 February 2007. The oral hearing of the renewed application was listed for 17 May 2007 but the applicant, appearing in person at the hearing, withdrew his application. 19 .     In a subsequent letter of 5 November 2007 from the applicant’s solicitors at the time of the judicial review proceedings to his current representatives before this Court, the former stated that the reason the judicial review application was withdrawn was that they, the solicitors, were without instructions from the applicant. They were informed by counsel that this was a “pre- LP ” case (see paragraphs 30–46 below) and counsel felt that there were insufficient merits in the case to proceed to the oral hearing. 20.     The Secretary of State issued the applicant with removal directions to Sri Lanka for 25 June 2007. On that date the President of the Chamber decided to apply Rule 39 of the Rules of Court and indicated to the Government of the United Kingdom that the applicant should not be expelled until further notice (see paragraph 5 above). B.     Subsequent cases brought by Tamils being returned to Sri Lanka 21 .     In 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. By October 2007, the President of the Chamber had applied Rule 39 in twenty-two cases where Tamils sought to prevent their removal to Sri Lanka from the United Kingdom. On 23 October 2007, the Section Registrar wrote to the Government Agent, noting the increasing number of such Rule   39 applications. Having regard to the security situation in Sri Lanka, he further noted that Rule 39 had been applied on each occasion an interim measure had been requested by an ethnic Tamil. The letter continued: “The Acting President has consulted the Judges of the Section about his concerns including as regards the strain which the processing of numerous Rule 39 applications places on judicial time and resources. The Court has concluded that, pending the adoption of a lead judgment in one or more of the applications already communicated, Rule 39 should continue to be applied in any case brought by a Tamil seeking to prevent his removal. The Section has also expressed the hope that, rather than the Acting President being required to apply Rule 39 in each individual case, your Government will assist the Court by refraining for the time being from issuing removal directions in respect of Tamils who claim that their return to Sri Lanka might expose them to the risk of treatment in violation of the Convention.” In his reply of 31 October 2007, the Agent set out the conclusions of the Home Office’s Operational Guidance Note of 9 March 2007 on Sri Lanka and the findings of the Asylum and Immigration Tribunal in LP . He concluded that in light of this information, the Government did not consider that the current situation in Sri Lanka warranted the suspension of removals of all Tamils who claimed that their return would expose them to a risk of ill-treatment. Each case had to be assessed on its merits against the available evidence. The Government was accordingly not in a position to assist the Court by refraining from issuing removal directions in all such cases on a voluntary basis. Finally, he stated that the Government would continue to make every effort to comply with any Rule 39 indications made by the Court in accordance with their obligations under the Convention and their long-standing practice. However, in the circumstances, the Government suggested that the difficulties posed by the increasing numbers of Rule   39 requests by Tamils could best be addressed through the adoption of a lead judgment by the Court. The Government stood ready to co-operate with the Court to bring such a case to an early conclusion. 22.     The Court has since applied Rule 39 in respect of three hundred and forty-two Tamil applicants who claim that their return to Sri Lanka from the United Kingdom would expose them to ill-treatment in violation of Article   3 of the Convention. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Immigration and asylum: primary and secondary legislation 23.     Sections 1(4) and 3(2) of the Immigration Act 1971 provide for the making of Immigration Rules by the Secretary of State. Paragraph 353 of the Immigration Rules (HC 395, as amended by HC 1112) states that: “When a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content: (i)     had not already been considered; and (ii)     taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.” 24.     At the material time, the Nationality, Immigration and Asylum Act 2002 (Commencement No. 4) (Amendment) (No. 2) Order 2003, when taken with section 101 of the Nationality, Immigration and Asylum Act 2002 and Part IV Immigration and Asylum Act 1999, provided for a right of appeal from an Adjudicator’s determination to the Immigration Appeal Tribunal. An appeal had to be on a point of law and the permission of the Immigration Appeal Tribunal was required. 25 .     At present, by section 94(2) of the Nationality, Immigration and Asylum Act 2002, when a person has made either an asylum claim or a human rights claim, or both, an appeal may not be brought while the person is in the United Kingdom if the Secretary of State certifies that the claim or claims are clearly unfounded. Under section 94(3), if the Secretary of State is satisfied that a claimant is entitled to reside in any of the States listed in the section 94(4), he shall certify the claim under subsection (2) unless satisfied that it is not clearly unfounded. Section 94(4) provides such a list of States and subsection (5) gives the Secretary of State the power to add a State, or part of a State, to the list in subsection (4) if satisfied that: there is in general in that State or part no serious risk of persecution of persons entitled to reside in that State or part; and removal to that State or part of persons entitled to reside there will not in general contravene the United Kingdom’s obligations under the Convention. Subsection (6) gives him the power to remove States from the list. 26.     Sri Lanka was added to the list by the Asylum (Designated States) (No. 2) Order 2003 (Statutory Instrument 2003/1919) which entered into force on 22 July 2003. It was removed from the list by the Asylum (Designated States) (Amendment) (No. 2) Order 2006 which entered into force on 13 December 2006. Paragraph 7.4 of the Explanatory Memorandum to the order cites the latest available information about the situation in Sri Lanka and in particular the deterioration in conditions as one of the factors for the Secretary of State’s decision to remove it from the list. B.     The Human Rights Act 1998 27 .     Section 2 of the Human Rights Act 1998 provides that, in determining any question that arises in connection with a Convention right, courts and tribunals must take into account any case-law from this Court so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen. Section 6(1) provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. C.     Judicial review 28 .     Judicial review in England and Wales is regulated by Part 54 of the Civil Procedure Rules. Rule 54.1(2) defines a claim for judicial review as a claim to review the lawfulness of an enactment or a decision, action or failure to act in relation to the exercise of a public function. An application for judicial review has two stages. The first is an application for permission to apply for judicial review; the second, if permission is granted, is a substantive application for judicial review. Where permission is refused without a hearing, under Rule 54.12(3) and (4) the claimant may not appeal but may within seven days request the decision to be reconsidered at a hearing. Rule 52.15 provides that where permission to apply for judicial review has been refused at a hearing in the High Court, the person seeking that permission may within seven days apply to the Court of Appeal for permission to appeal. D.     Country guidance determinations of the Asylum and Immigration Tribunal and former Immigration Appeal Tribunal 29.     Appeals from decisions of the Secretary of State in asylum, immigration and nationality matters are now heard by the Asylum and Immigration Tribunal (“the AIT”), which replaces the former system of Adjudicators and the Immigration Appeal Tribunal. Paragraph 18 of the Practice Directions governing the operation of the AIT defines country guidance determinations of the AIT as follows: “18.2     A reported determination of the [AIT] or of the IAT [the former Immigration Appeal Tribunal] bearing the letters “CG” shall be treated as an authoritative finding on the country guidance issue identified in the determination, based upon the evidence before the members of the [AIT] or the IAT that determined the appeal. As a result, unless it has been expressly superseded or replaced by any later “CG” determination, or is inconsistent with other authority that is binding on the [AIT], such a country guidance case is authoritative in any subsequent appeal, so far as that appeal: (a)     relates to the country guidance issue in question; and (b)     depends upon the same or similar evidence. ... 18.4     Because of the principle that like cases should be treated in like manner, any failure to follow a clear, apparently applicable country guidance case or to show why it does not apply to the case in question is likely to be regarded as grounds for review or appeal on a point of law.” 1.     LP (LTTE area – Tamils – Colombo – risk?) Sri Lanka CG [2007] UKAIT 00076 30 .     In the above country guidance determination promulgated on 6   August 2007, the AIT considered the case of a Tamil, LP, from Jaffna in the north of Sri Lanka. He had experienced problems with the LTTE and the Sri Lankan authorities and fled Sri Lanka on 29 December 1999 but had been refused asylum in the United Kingdom by the Secretary of State. Since the case had been identified as a country guidance determination, the AIT heard evidence from a number of experts on the situation in Sri Lanka and the treatment of Tamils there. It also considered the UNCHR Position Paper (see paragraphs 65–68 below) and considered evidence on the Sri Lankan authorities’ treatment of returned failed asylum seekers at Colombo airport, including a series of letters from the British High Commission in Colombo and a report of the Canadian Immigration and Refugee Board (see paragraphs 60–63 and 74 below). In dismissing LP’s appeal on asylum grounds but allowing it on the basis of Article 3 of the Convention, the AIT gave the following guidance in the headnote to its determination: “(1)     Tamils are not per se at risk of serious harm from the Sri Lankan authorities in Colombo. A number of factors may increase the risk, including but not limited to: a previous record as a suspected or actual LTTE member; a previous criminal record and/or outstanding arrest warrant; bail jumping and/or escaping from custody; having signed a confession or similar document; having been asked by the security forces to become an informer; the presence of scarring; return from London or other centre of LTTE fundraising; illegal departure from Sri Lanka; lack of an ID card or other documentation; having made an asylum claim abroad; having relatives in the LTTE. In every case, those factors and the weight to be ascribed to them, individually and cumulatively, must be considered in the light of the facts of each case but they are not intended to be a check list. (2)     If a person is actively wanted by the police and/or named on a Watched or Wanted list held at Colombo airport, they may be at risk of detention at the airport. (3)     Otherwise, the majority of returning failed asylum seekers are processed relatively quickly and with no difficulty beyond some possible harassment. (4)     Tamils in Colombo are at increased risk of being stopped at checkpoints, in a cordon and search operation, or of being the subject of a raid on a Lodge where they are staying. In general, the risk again is no more than harassment and should not cause any lasting difficulty, but Tamils who have recently returned to Sri Lanka and have not yet renewed their Sri Lankan identity documents will be subject to more investigation and the factors listed above may then come into play. (5)     Returning Tamils should be able to establish the fact of their recent return during the short period necessary for new identity documents to be procured. (6)     A person who cannot establish that he is at real risk of persecution in his home area is not a refugee; but his appeal may succeed under article 3 of the ECHR, or he may be entitled to humanitarian protection if he can establish he would be at risk in the part of the country to which he will be returned. (7)     The weight to be given to expert evidence (individual or country) and country background evidence is dependent upon the quality of the raw data from which it is drawn and the quality of the filtering process to which that data has been subjected. Sources should be given whenever possible. (8)     The determinations about Sri Lanka listed in para 229 [of the determination – see below] are replaced as country guidance by this determination. They continue to be reported cases.” 31 .     In its consideration of the expert evidence before it, the AIT heard argument on the correct approach to the UNHCR Position Paper (see paragraphs 65 – 68 below). It stated that: “203.     The UNHCR report was very topical and up to date. We agree with the general submission made by [counsel for the Secretary of State] that the protection agenda of the UNHCR is a wider one than the mere assessment of refugee or subsidiary protection status. However, these reports are prepared by persons with direct experience of the core issues involved and thus we accord them substantive weight in this case.” 32 .     The AIT then considered each of the twelve risk factors that had been identified by the appellant, LP, and which it had summarised in its headnote. In respect of Tamil ethnicity, the AIT recalled that Tamils comprised more than 10 percent of the population of Colombo, which called for caution when assessing risk in Sri Lanka, especially Colombo. There was a need for knowledge of where applicants came from in Sri Lanka and their involvement or lack of it with Tamil organisations, whether voluntary, involuntary or otherwise. It found that there were different risk profiles for sub-groups of those with Tamil ethnicity (Sri Lankan Tamils coming from the north or east compared with “Indian”, “Plantation” or “Hill” Tamils). Age and gender had to be taken into account and young male Tamils in Sri Lanka, particularly in Colombo, were at a relatively higher level of risk. There was a higher propensity on the part of the Sri Lanka authorities to target young men and women from the north and the east in a period of virtual civil war. 33 .     In respect of a previous record as a suspected or actual LTTE member or supporter, it was of vital importance to establish an applicant’s profile and the credibility of his background in some depth. If he or she was not credible as to his claim to come from the north or east, which left a situation where he could be a Tamil from Colombo with little or no involvement with the LTTE, there could be little risk. 34 .     A previous criminal record and/or arrest warrant was, in the AIT’s view, a significant factor that needed to be taken into account in the assessment of the totality of the risk but did not mean, of itself, that the applicant had a well-founded fear of persecution or other significant harm on return to Sri Lanka for that reason alone. The issue was to establish the credibility of the criminal record, or an arrest warrant, and decide whether it was reasonably likely to exist in respect of the applicant. 35 .     Those who had jumped bail or absconded from police custody, the AIT noted: “We agree with the logic that those who have been released after going to court and released from custody on formal bail are reasonably likely, on the evidence, to be not only recorded on the police records as bail jumpers but obviously on the court records as well. Thus we would identify those in the situation such as this appellant who have been found to have been to court in Colombo, and subsequently released on formal bail, as having a profile that could place them at a higher level of risk of being identified from police computers at the airport. Their treatment thereafter will of course depend upon the basis that they were detained in the first place. It is important to note that we did not have before us any information as to the treatment of bail jumpers from the ordinary criminal justice system, and there may be many of them, when they again come to the attention of the authorities, be they Tamil or Singhalese. We had no evidence that Tamil bail jumpers are treated differently from Singhalese ones. Clearly punishment for jumping bail will not make someone a refugee. As we have said, the risk of detention and maltreatment will depend on the profile of the individual applicant.” For those who had not been brought to court and had possibly been released from detention after payment of a bribe, much would depend on the evidence relating to the formality of the detention. If the detention was informal and there were no records of a bribe, the risk level would be likely to be below that of a real risk. On this risk factor, the AIT concluded: “While we would agree that there may well be situations where Tamils, with little or no profile related to the LTTE, or other ‘terrorist’ groups, could be briefly detained and harassed, as no doubt happens in round ups in Colombo and elsewhere, we consider it illogical to assume that an escapee, from Sri Lankan government detention, or a bail jumper from the Sri Lankan court system, would be merely ‘harassed’ given the climate of torture with impunity that is repeatedly confirmed as existent in the background material from all sources. We consider, (as we think it does in the appellant’s particular case), that the totality of the evidence may point to a real risk, in some cases, of persecution or really serious harm when a recorded escapee or bail jumper is discovered, on return to Sri Lanka.” 36 .     When an applicant had signed a confession, this could be a significant risk factor and the AIT noted expert evidence to the effect that many Tamils were released after signing statements made in Sinhala that they often did not understand. The factor had to be considered in the totality of the risk. Equally, when an applicant had refused requests by the security services to become an informer against the LTTE, there was a higher risk that they would be assumed to be a collaborator of the LTTE but such evidence had to be taken into account with the totality of the evidence and merely establishing that an applicant had refused to become an informer would not be in every case the basis for a valid asylum claim on its own. 37 .     On the risk arising from the presence of scarring on an applicant, the AIT stated: “217.     The background evidence on the issue of scarring has fluctuated. Up until the time of the ceasefire it was generally accepted as something which the Sri Lankan authorities noted and took into account both at the airport and on detention and in strip searches of suspected Tamil LTTE supporters. Their perception that it may indicate training by the LTTE, or participation in active warfare, was self-evident, and simply was ‘good’ policing, as appeared to be suggested by the Inspector General of Police in his discussions with Dr Smith [one of the experts on Sri Lanka from whom the AIT heard evidence]. On the same logic it was also valid to conclude that the impact of scarring was of far less interest during the period 2002 – late 2005 while the ceasefire agreement was having some effective impact. The evidence that was provided in this case, including that from Dr Smith following his discussions with the Inspector General of Police (paragraph 80 of his report), the BHC [British High Commission] letter of 24 August 2006, and the COIR [United Kingdom Border and Immigration Agency Country of Origin Information Report on Sri Lanka] all indicate that scarring may again be relevant. We agree with the comments in Dr Smith’s report, that the issue of scarring was considered by the police to be a very serious indicator of whether a Tamil might have been involved in the LTTE. However, on the evidence now before us we consider that the scarring issue should be one that only has significance when there are other factors that would bring an applicant to the attention of the authorities, either at the airport or subsequently in Colombo, such as being wanted on an outstanding arrest warrant or a lack of identity. We therefore agree with the COIR remarks that it may be a relevant, but not an overriding, factor. Thus, whilst the presence of scarring may promote interest in a young Tamil under investigation by the Sri Lankan authorities, we do not consider that, merely because a young Tamil has scars, he will automatically be ill-treated in detention.” 38 .     In respect of the risk arising from return from London or another centre of LTTE activity or fund-raising, the AIT heard evidence from the Metropolitan Police on LTTE activities and fund-raising in London. It concluded that this factor was highly case-specific and any applicant would need to show the extent to which the Sri Lankan High Commission in the United Kingdom was aware of his activities and was thus likely to have passed the information on to Colombo when the applicant was being deported or removed. 39.     Illegal departure from Sri Lanka did not of necessity establish a well founded fear of persecution or serious harm, although in the “heightened level of insecurity” in Sri Lanka it would add to the risk profile. Similarly, given the number of “cordon and search” operations by the Sri Lankan Government, the lack of a valid identity card could contribute towards an increased level of risk. In the AIT’s view, it had to be coupled with other risk factors for those of Tamil ethnicity but it was a contributing factor. An applicant would need to show why he would be at continuing risk and that he could not reasonably be expected to obtain a new identity card. 40 .     In respect of the risk factor of having made an asylum claim abroad, the AIT relied, inter alia , on a letter dated 24 August 2006 from the British High Commission in Colombo (see also paragraphs 60–63 below) which had stated that lists of failed asylum seekers could form part of search operations in Colombo (at paragraphs 65 and 221 of the determination). The AIT found that it was a reasonable inference that application forms for replacement passports and travel documents might alert the Sri Lankan High Commission in London and that information could be passed on. However, the AIT did not consider having made a failed asylum claim abroad to be an issue that alone would place a returnee at real risk on return. It would be a contributing factor that would need other, perhaps more compelling factors before a real risk could be established. 41 .     The AIT considered that the fact of having relatives in the LTTE was a logical factor but needed to be taking into account with the totality of other evidence and the profile of other family members. On its own, without established and credible evidence of the details of the other family members and their known role or involvement with the LTTE, it would be of limited weight. When assessing those who have relatives who were members of the LTTE, it was not only important to consider the relationship, and the involvement of the relative but whether, and to what extent, knowledge of the relative’s activities were likely to have been known to the security forces in Sri Lanka. This would vary depending on the relative’s profile and whether or not he or she had been previously detained. The question of how the authorities would know that an individual was so related might also be of concern. 42 .     In its conclusion on the risk profile for Tamils, the AIT stated: “227.     Our assessment of the various risk factors above has highlighted that each case must be determined on its own facts. It may be that in some credible cases one of these individual risk factors on its own will establish a real risk of persecution or serious harm on return by the Sri Lankan authorities for Sri Lankan Tamils who are failed asylum seekers from the United Kingdom. For those with a lower profile, assessed on one or a combination of the risk factors we have noted however, such as this appellant, their specific profiles must be assessed in each situation and set against the above non-exhaustive and non-conclusive, set of risk factors and the volatile country situation. As can be noted, several factors, such as being subject to an outstanding arrest warrant, or a proven bail jumper from a formal bail hearing may establish a much higher level of propensity to risk than various other factors. In this situation therefore, the assessment exercise is a much larger and more detailed one than may have been the situation up to 2002 and certainly during the period of the cease fire agreement (‘CFA’). The current worsening situation in Sri Lanka requires serious consideration of all of the above factors, a review of up to date country of origin information set against the very carefully assessed profile of the appellant.” 43 .     In addressing the general situation in Sri Lanka at the time and the possible of relocation of Tamils from the north or east to Colombo, the AIT stated: “232.     It has been accepted during the course of this determination that the general security situation in Sri Lanka has deteriorated following the effective breakdown of the ceasefire and the increase in terrorist activity by the LTTE. That has resulted in increased vigilance on the part of the Sri Lankan authorities and with it a greater scope for human rights abuses and persecution. 233.     When assessing the risk to an individual it should be borne in mind that much of the background material about Sri Lanka, and the increase in violent activity, relates to the north and east. There are particular problems in the east because of the defection of the Karuna faction from LTTE ranks. This determination does not suggest that it would in every case be unsafe to expect a returning Tamil to return to his or her home area in the north or the east. Rather it looks at the position in Colombo whether that be for a Tamil who was from Colombo in the first place, or a person who could relocate there. 234.     Tamils make up over 10% of the population of Colombo. Despite evidence of some forms of discrimination, the evidence does not show they face serious hardships merely because they are Tamils. As a result, other considerations apart and subject to individual assessment of each applicant’s specific case, it cannot be argued that, even if he faces serious harm in his home area, as a general presumption it is unduly harsh to expect a Tamil to relocate to Colombo, or that it would be a breach of Article 3 to expect him or her to do so, or that doing so would put him or her at real risk of serious harm entitling them to humanitarian protection.” 44 .     Having reiterated that the list of factors was “not a ch