CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 15 avril 2014

.s800EAC49 { font-size:12pt } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .sBB9EE52A { font-family:Arial } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA20670C4 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .s79DE5897 { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s5F897A7E { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .sC8702D41 { width:154.61pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block }   FOURTH SECTION DECISION Application no. 16458/12 N. and OTHERS against the United Kingdom The European Court of Human Rights (Fourth Section), sitting on 15   April 2014 as a Chamber composed of:   Ineta Ziemele, President,   George Nicolaou,   Ledi Bianku,   Nona Tsotsoria,   Zdravka Kalaydjieva,   Paul Mahoney,   Faris Vehabović, judges, and Françoise Elens-Passos, Section Registrar, Having regard to the above application lodged on 15 March 2012, Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court, Having regard to the decision to grant the applicants anonymity, Having regard to the observations submitted by the respondent Government, the applicants and the third party interveners, Having deliberated, decides as follows: THE FACTS 1.     The first applicant is a Sri Lankan national who was born in 1961 and lives in Wattala. The second applicant is her mother, who was born in 1935 and is a Sri Lankan national who lives in Bromley. The third applicant is her brother, who was born in 1967 and is a British national who also lives in Bromley. All three applicants are represented by the Aire Centre. A.     The circumstances of the case 2.     The facts of the case may be summarised as follows. 1.     The first applicant’s arrival in the United Kingdom and her asylum claim 3.     The first applicant is an ethnic Tamil who holds Sri Lankan citizenship. On 6 April 2009 she arrived at Heathrow airport on a flight from Sri Lanka via Kuwait. She held a valid visitor’s visa for the United Kingdom and passed through immigration controls. 4.     The first applicant went to stay with her brother, the third applicant, who was resident in London. Her mother, the second applicant, resided with the brother. 5 .     The first applicant subsequently instructed a solicitor who, by letter to the Home Office dated 24 April 2009, indicated that she wished to make an asylum claim on the ground that she feared mistreatment because of her imputed political opinion if returned to Sri Lanka. The letter recorded that she claimed to have a well-founded fear of persecution because she was an ethnic Tamil from northern Sri Lanka; she had been detained and tortured by the Sri Lankan authorities; the Sri Lankan authorities had a record of her as a suspected LTTE sympathiser; she was “confused and psychologically scarred”; she would be returning from London, which the Sri Lankan authorities regarded as a centre of LTTE activity and fundraising; and she had escaped from Sri Lankan government custody. 6.     She attended an asylum screening interview on 27 April 2009. Her interviewer was female. According to the applicant the interview was conducted with the aid of a male, Tamil-speaking interpreter. She was asked if she had a preference whether she was interviewed by a man or a woman and answered that she did not. 7.     On 29 November 2010 the first applicant’s asylum interview took place. The interview was conducted by a female interviewer assisted by a female, Tamil-speaking interpreter. The first applicant maintained her claim for asylum or humanitarian protection on grounds of an alleged risk of ill ‑ treatment if returned. She claimed that on 4 February 2009, she had been stopped at an army checkpoint in Colombo. Because her identity card listed her place of birth as Karampon, a town in a predominantly Tamil area of northern Sri Lanka, she had been accused of planning acts of violence and detained by government agents for several days at an unknown location. Her husband and others had managed to secure her release, provided that she report to the authorities weekly. 8.     She further alleged that on 27 March 2009, she had been assaulted by three Criminal Investigation Department (“CID”) officers who had come to her home looking for her husband while he and their three sons were out. She had been taken to a remote camp in an unknown, government ‑ controlled area of Sri Lanka for questioning, where she had been tortured. She had subsequently become ill and had been transferred to a hospital with a CID guard stationed in the hospital grounds. She had escaped after three days, at 2 a.m. when there was no guard, with the help of a nurse and her husband, who was a taxi-driver. She had paid them with a gold earring. She had not returned to her home in Colombo but had spent a week at the house of her husband’s friend in Wattala before leaving the country with the help of an agent, whom she had paid with her jewellery and the title deeds to her home. She had not contacted her husband or sons since her arrest but had heard that they were no longer living at her former home. She had entered the United Kingdom on a visitor’s visa which she had obtained in November 2008 to enable her to visit the third applicant and his wife, who were resident in London and had just had a baby. 2.     The asylum decisions (a)     Secretary of State’s decision 9 .     The Secretary of State refused the first applicant asylum and humanitarian protection on 20   January 2011. 10 .     On the question of the credibility of her account of events in Sri   Lanka prior to her arrival in the United Kingdom, the Secretary of State made a number of comments. First, she did not accept as credible, having regard to immigration control procedures, the first applicant’s claim at the asylum interview that she did not speak to an immigration officer when passing through immigration control. She concluded that the first applicant had gained illegal entry to the United Kingdom by verbally deceiving the immigration officer and placed “significant weight” on the mandatory damage done to her credibility in this regard. She further found that her credibility was damaged by the fact that she had not claimed asylum immediately on arrival at Heathrow but “four months” after (in their written submissions, the Government accepted that the reference to “four months” was an error and should have read “three weeks”). 11 .     Second, in respect of the first applicant’s alleged arrest in February 2009, the Secretary of State found that, having lived in Colombo for a number of years, the first applicant would already have registered with the authorities there (referring to information contained in the Country of Origin Information Report for Sri Lanka, November 2010 – the “COI Report 2010”). Doubt was cast on her account of events because her claim that she was detained for the reason that her ID card stated that she was from Karampon was not considered consistent with the purpose and use of compulsory registration in Colombo, which was to identify and question further those not from the area at the time of registration. Her account was also vague: she could not say who the people who had come with her husband to collect her were, or how her husband had secured her release. Despite having been released with an obligation to report on a weekly basis, she did not know to whom she had reported, where she had reported or how many times she had reported. The Secretary of State considered that her vague responses cast doubt on her claim. She therefore did not accept that the first applicant had been arrested and detained in the circumstances claimed, and this damaged her credibility. 12 .     Third, in respect of her alleged arrest in March 2009, the Secretary of State considered the first applicant’s claim that she was of interest to the CID to be inconsistent with her account that the guard left the hospital, enabling her to escape. The Secretary of State also noted that she had all the necessary documents and means to leave Sri Lanka legally and would not have required the assistance of an agent. Her account that she was assisted by an agent was therefore not consistent with her personal circumstances. Further, since the first applicant had been too afraid to return to her home address, she had not explained how she had obtained her 2008 passport for travel. This, too, cast doubt on the claim that she had left Sri Lanka in the circumstances described. The Secretary of State was of the view that although the first applicant had stated that she had had no contact with her husband or children since her arrest, it was unlikely that she would have fled Sri Lanka without attempting to warn them of the CID’s interest in her husband. For all of these reasons, the Secretary of State did not accept that she had been arrested or detained in March 2009 and her credibility was damaged as a result. 13 .     The Secretary of State considered the risk to the first applicant on return to Sri Lanka in light of these adverse credibility findings and the relevant case-law. As the material facts of her claim were not accepted, the Secretary of State concluded that the Sri Lankan authorities would have no adverse interest in her. In terms of the risk factors identified by the Asylum and Immigration Tribunal in the leading country guidance case of LP (see paragraphs 70-71 below), the only ones applicable to her were her Tamil ethnicity, her return from London and the fact that she had made an asylum claim abroad. These did not create, either separately or cumulatively, a real risk of ill-treatment on return. 14 .     As for Article 8, the Secretary of State noted that the first applicant relied on her relationships with her mother, brother and sister (who had arrived in the United Kingdom with the first applicant and had also claimed asylum). There was no evidence that these relationships involved more dependency than the usual emotional ties, and she had failed to show family life with her sister. There was equally no evidence that she had established private life in the United Kingdom since her arrival on 6 April 2009. (b)     The appeal to the First-tier Tribunal 15 .     The first applicant appealed to the First-tier Tribunal (Immigration and Asylum Chamber). Her appeal was heard with that of her sister, who had also been refused asylum. The hearing took place before a male Immigration Judge and with the assistance of a male interpreter. The judge had before him, inter alia , a copy of the screening and asylum interview records, the Secretary of State’s reasons for refusal and the grounds of appeal. He also had before him a witness statement in which the first applicant set out full details of her account, and claimed in particular that she had never registered in Colombo; that her passport had been in a locker at the bank; and that her husband’s friend had recovered her passport on her behalf. The applicants relied on the COI Report 2010 together with relevant case-law and other supporting documents and objective material. The judge heard oral evidence from the applicant, her sister and her brother. 16.     The appeal was dismissed on 17 March 2011. The judge made a number of findings of fact, explaining that he had given careful attention to the oral evidence in the case, the reasons for refusal letter, the grounds of appeal, the applicant’s witness statement and the supporting documents, including the country evidence and the country guidance cases of LP and TK (see paragraphs 70-71 below). 17.     He upheld the Secretary of State’s finding that the first applicant would have had to register with the police in Colombo, explaining that had she not done so, she would have been stopped at checkpoints long before February 2009. He also observed that the Sri Lankan authorities had issued her with a passport in November 2008, even though they knew she was from Karampon. He commented on her description of her release from the February 2009 period of detention, noting that her husband could not have known where she was being detained when she herself did not know and that she was unable to provide details of the reporting requirement imposed. He made an adverse finding of credibility. 18 .     As regards the second period of detention in March 2009, the Immigration Judge found that her account of her arrest made no sense: if the CID had wanted to find her husband they would have waited for him or gone to look for him, and would not have taken her instead. The judge described the ill-treatment that she alleged had taken place, namely that a polythene bag with petrol in it had been placed over her head and her head had been repeatedly submerged in water, and found it not credible that during this treatment her gold earrings would have remained in place, allowing her to use them to bribe the nurse later. If the CID were interested in her and wished to obtain information through torture, the judge considered it not credible that they would have arranged for her medical treatment by a doctor and a nurse. He continued: “32. ... Despite the fact that the CID had apparently seen fit to place a guard on the door they did not see fit to ensure that the guards changed shifts simultaneously thereby allowing the appellant to escape, dressed as a nurse having first given the genuine nurse her earrings which were also used to pay the nurse’s brother to pick her up in his rickshaw taxi and then to deliver her to a friend’s house even though he could not possibly have known in advance how long the journey would last or whether he would have enough petrol to make the trip because he did not know where the destination would be and [the first applicant] did not know where she was being held. I am trying to work out what was the point of dressing up as a nurse when there was nobody around to see her but there seems little point in picking up on small points when the entire story is so ludicrously lacking in credibility that it would struggle to be acceptable even as the plot of a ‘Carry-on’ film”. 19.     As regards the first applicant’s seeking refuge with her husband’s friend in Wattala, the judge observed that she and her driver “would have woken up the entire village” by knocking on doors to find out where her friend lived. He further observed that the first applicant had “apparently forgotten”, when claiming that she could not go home because no-one was there, that her husband and children would have come home and wondered where she had gone. He found her explanation that her friend had told her that they were living elsewhere to be “an embellishment designed to plug a gap in the evidence”. The judge made critical comments about the sisters’ accounts of how they contacted each other by mobile phone and rejected the first applicant’s account of having used an agent, on the basis that she had a passport with a valid visitor’s visa so had no need for one. Her claim of having sold the house to pay the fees he said was “a total fabrication”. 20.     The Immigration Judge found that the sisters had obviously put their heads together and that their escape from Sri Lanka was nothing more than “a coordinated pleasure trip with a sinister intention, namely to deceive the UK authorities by cooking up a story once they had arrived at their brother’s house”. The judge had no doubt that they had been in regular contact with their respective husbands and that the first applicant had been in contact with her sons. He reviewed all the applicable risk factors set out in LP (see paragraph 71 below) and concluded that the first applicant and her sister could be returned to Sri Lanka. In particular, there was no evidence that a failed asylum-seeker was per se subject to persecution on return and the first applicant and her sister were of no interest to the authorities. There was nothing about them save their ethnicity which could possibly cause any authority to make inquiries. 21.     As to the manner in which the first applicant had claimed asylum, the judge commented on her failure to make a claim at Heathrow airport or immediately upon arrival at her brother’s house. He found that her mother’s alleged ill-health was not sufficiently serious to have prevented her from contacting the authorities immediately. He continued: “40. ... The appellants claim to suffer from the effects of torture but I find that this is all part of the smokescreen. They have persisted in maintaining a false story and their conduct in seeking anonymity [in the course of proceedings before the Tribunal] is but another aspect of the smokescreen which they have thrown up. They have taken advantage of the [National Health Service] and the local school system. Their brother has abused the society which gave him refuge. I have no hesitation in finding that their conduct adversely affects what remains of their credibility.” 22 .     The judge concluded: “41. I find in each case that the appellant is sufficiently resourceful to be able to return and to re-establish herself in a country where she spent most of her life and where her family still lives. She is not suffering from any life-threatening illnesses ... I find on all the evidence adduced that there are no compassionate circumstances or other matters showing why the appellant could not return to Sri Lanka. I find that her ties are to Sri Lanka and not to the United Kingdom. Removal is appropriate and proportionate. ... 43. Given the conclusions as outlined above, I also find in each case that the appellant has not shown substantial grounds for believing that she will face a real risk of serious harm in her country of origin or that she is unable, or owing to such risk, unwilling to avail herself of the protection of her country of origin ...” (c) The application to the First-tier Tribunal for permission to appeal 23 .     The first applicant and her sister sought permission to appeal against the Tribunal’s determination on grounds, inter alia , of bias and the fact that the Immigration Judge had failed properly to consider their case under Articles 2 and 3 of the Convention. 24 .     On 4 April 2011 the application was dismissed by a different Immigration Judge of the First-tier Tribunal who explained: “The Immigration Judge spent some time dealing with the appellants’ cases and for a number of perfectly clear reasons disbelieved the entirety of their accounts. It is clear that he expresses himself in very forceful terms; however, for each matter he disbelieves he gives clear reasons [which] do not display bias, but which simply explain why he has reached the conclusion, and whilst many might not have expressed themselves so forcefully the expressions themselves do not display an arguable error of law. While it is true that there is no clear evaluation in relation to article 8, in looking at the appellants’ and [their] witness’s statements there is nothing in them to suggest any real family life or private life for either appellant save for presence with other adult family members. I see no skeleton argument for either, which suggests that no real article 8 case was put forward. As a result there appears to me to be no realistic prospect of success on appeal in relation to article 8...” (d) The application to the Upper Tribunal for permission to appeal 25 .     The first applicant and her sister renewed their application to the Upper Tribunal. On 6 July 2011 the application was dismissed for the reasons given in April by the First-tier Tribunal. The Senior Immigration Judge added that, although the initial Immigration Judge’s opinions had been robustly expressed, there was no evidence of bias. 26 .     With the rejection of the application to appeal, the first applicant’s appeal rights were exhausted. 3.     Events following the conclusion of the asylum proceedings 27.     In August 2011 the first applicant’s NHS counselling psychologist informed her general practitioner that she was “having suicidal thoughts of throwing herself in front of a train or traffic” and that she claimed to have stepped out in front of a car two weeks earlier, which had fortunately stopped in time. 28.     On 6 September 2011, the general practitioner confirmed that the first applicant suffered from depressive illness “due to her family situation”, that her antidepressant medication was not working, that she had been referred to a psychiatrist and that her prognosis would be poor until support for her to remain in the United Kingdom had been achieved. He referred to her “suicidal ideation” and problems with her status in the United Kingdom. 29.     On 14 September 2011 the United Kingdom Border Agency (“UKBA”) issued directions for the first applicant’s removal to Sri Lanka by charter flight at 3   p.m. on 28 September 2011. She was taken into immigration detention. 30.     On 15 September 2011 medical personnel at the immigration removal centre recorded in an R35 report that the first applicant had told them that she had been tortured by the Sri Lanka army and that, as part of that torture, had been raped. 4.     The first applicant’s further submissions (a)     The further submissions to the Secretary of State 31 .     On 15 September 2011, with the assistance of new legal representation, the first applicant made further submissions to the Secretary of State. Her representatives submitted that details of her ill-treatment while in detention had not previously been disclosed because she was too traumatised to give full disclosure to her brother, her male lawyer and the male interpreter at the asylum interviews, and that trauma could cause individuals to block out painful events. They explained that she had been referred to the Helen Bamber Foundation for further investigation and included a copy of the R35 report. 32 .     The further submissions also referred to the fact that the first applicant had disclosed suicidal thoughts and that there were concerns for her well-being. The various letters from her GP and counselling psychologist were enclosed. Relying also on Article 3 of the Convention, the first applicant submitted that return to the place where torture and ill ‑ treatment had taken place could cause further mental deterioration. (b)     The Secretary of State’s decision 33 .     On 23 September 2011 the Secretary of State informed the first applicant that her removal would proceed as planned. In her letter, the Secretary of State reiterated that it had not been accepted that the first applicant had ever been detained by the Sri Lankan authorities and that the First-tier Tribunal had not believed her account, even to the smallest degree. The Secretary of State further noted that while the first applicant claimed that her former reticence to disclose details of the rape was because she had male solicitors and interpreters, she had shown no compunction in raising the claim when removal became imminent. 34.     As regards the first applicant’s mental health, the Secretary of State noted that she had not told her GP about her torture, and had attributed her depression and suicidal ideation to an undisclosed family situation and her placement in immigration detention. It was considered that she had not been honest with the United Kingdom authorities and was seeking to claim that she had been raped as a means of remaining in the United Kingdom, perhaps to obtain medical treatment or to resolve problems with her family. The Secretary of State added that there was no reason to believe that she would not have access to medicine and treatment in Sri Lanka, and that her mental health problems did not meet the Article 3 threshold. 35.     The Secretary of State maintained her position that removal would also be a proportionate interference with the first applicant’s rights under Article 8 since there was no evidence of the required level of dependency in her relationship with her mother and adult siblings; she had failed to come “even close to showing” that her moral and physical integrity would be breached on return to Sri Lanka; and she had not demonstrated anything more than the usual personal ties to the United Kingdom. 36 .     In conclusion, the Secretary of State found that the points made by the first applicant in her submission, taken together with material previously considered, did not create a realistic prospect of success before an Immigration Judge (see paragraph 68 below). The submissions did not therefore amount to a fresh claim and there was no right of appeal against that decision. 5.     The first applicant’s detention and psychiatrist’s report 37 .     According to the first applicant’s detention records, on 22 September 2011 she attended a bail hearing where she claimed that she had tried to kill herself several times. Upon her return to the immigration removal centre, an immediate action plan was put in place. It was decided that she would be observed hourly in order to ensure that she remained safe. A healthcare appointment was arranged for her that night and a doctor’s appointment was arranged for the following day to explore her mental health issues. Regular case reviews subsequently took place. 38 .     On 24 September the first applicant was interviewed by an independent male psychiatrist with the assistance of a female interpreter. According to his report of 26 September 2011, in that interview she gave further details of her rape by three men in uniform during her first period of detention in February 2009 and her beating and gang rape by four Sri   Lankan officers during her second period of detention in March 2009. The psychiatrist noted that she had displayed clear signs of distress consistent with emotional trauma when giving her account of events. 39 .     The psychiatrist was of the view that that the applicant presented with symptoms consistent with depression. He identified the main perpetuating factors as her pending repatriation and her current detention. He considered that on a balance of probabilities she was suffering from post-traumatic stress disorder, based on the assumption that the alleged detention and abuse in Sri Lanka had taken place. 40 .     He recorded that he was fully aware of the unexplained discrepancies between the account given to him and that given to UKBA. He explained that he could not comment on her credibility, which was a matter for the courts. However, he observed that it was not unusual for patients who had suffered significant trauma to recollect peripheral information at the expense of other information, or to distort memories. 41 .     The psychiatrist noted that the first applicant could not explain why she had not shared the information earlier. He considered that there was not enough evidence to suggest that she had dissociated herself from the traumatic events and therefore did not believe that dissociation was responsible for her previous omissions. However, he noted that during his interview with her, he was assisted by a female Tamil-speaker from India, and hypothesised that this might have reduced the threat of cultural stigma from the disclosure. 42 .     Finally, the psychiatrist recorded that the first applicant had expressed a desire to commit suicide if returned to Sri Lanka, claiming that this would be preferable to being tortured and killed by soldiers. He recorded that officials at the immigration removal centre had placed the first applicant on suicide watch, and recommended that this be maintained. He was of the view that her recent detention had significantly contributed to worsening her mental state. He noted that she had no active plans to end her life unless sent back to Sri Lanka. He recommended various therapies but could not comment on whether they would be available in Sri Lanka. 43 .     The first applicant’s detention record logs the results of the hourly observations of the first applicant from 5.30 p.m. on 22 September until 9.55 a.m. on 28 September. Aside from legal and medical appointments and discussions with staff members about her removal, the record shows that she regularly ate meals with friends, she attended church, she talked to other detainees, she washed her clothes and she slept. 6.     The first applicant’s further submissions and request to have a fresh asylum claim considered 44 .     On 27 September 2011, on the basis of the psychiatrist’s report and other fresh evidence, including a letter from a Sri Lankan lawyer stating that the she had been detained in February 2009 and had appeared before Colombo Magistrates’ Court, represented by him, the first applicant made further, urgent representations to the Secretary of State. 45.     At 11.41 a.m. on 28 September 2011, her further representations were rejected. The Secretary of State noted that the first applicant had previously made no mention of having been produced before Colombo Magistrates’ Court. There were also inconsistencies between the lawyer’s account and that of the first applicant: he said that she had been released on cash bail to report to a particular police station; she said that she had been released with a weekly reporting requirement but did not know where. The Secretary of State therefore concluded that the letter was not reliable. 46.     As regards the first applicant’s mental health, the Secretary of State noted that according to the psychiatrist’s report this had been worsened by her detention and concluded that it would therefore improve after removal. There was no clear evidence of a real risk that the first applicant would commit suicide if returned. Despite the first applicant’s representations to the contrary, the Sri Lankan health system provided adequate treatment for depression. There were no exceptional or extreme circumstances in her case. Her ability to travel had been assessed and had there been any doubts, her removal would not have proceeded. However, there had been no doubts. 47.     Finally, as regards Article 8, the Secretary of State accepted that the first applicant had family life in the United Kingdom but maintained that her removal would be proportionate. 7.     The judicial review claim and the first applicant’s removal (a)     The lodging of the claim and the flight’s departure 48.     Upon receiving the Secretary of State’s decision the first applicant commenced judicial review proceedings in the High Court. She claims that the papers were lodged at some time prior to 2 p.m. on 28   September 2011. In her judicial review application, she alleged that the Secretary of State’s failure to treat the post-appeal evidence concerning her rapes, psychiatric illness and suicide risk as a fresh claim violated domestic law as well as Articles 3 and 8 of the Convention. She also sought an injunction to stop the Secretary of State removing her prior to consideration of her judicial review claim. The various tribunal decisions were not lodged with the claim. 49.     According to the detention records, the first applicant was asked by immigration removal centre staff on the morning of 28 September whether she would go to the airport without causing problems and answered that she would. She was therefore taken to reception for transfer to the flight at 9.55   a.m., and no problems were reported. According to the first applicant, she was carried on to the flight to Sri Lanka at or around 3 p.m. by two men. 50.     Many of the forty-nine other Sri   Lankans on the flight manifest had also applied to the High Court for permission for judicial review on the basis that they faced a real risk of torture upon arriving in Sri Lanka. Twenty-three individuals were removed from the flight manifest prior to departure as the High Court ordered that they were not to be removed pending those proceedings. However, the first applicant’s case was not considered in time to prevent her removal (see paragraph 52 below) and no order was made to suspend removal pending consideration of her case. 51.     The flight departed with fifty Sri Lankan nationals on board at 4.15   p.m. on 28   September 2011. (b)     The High Court’s determination of the judicial review claim on the papers 52 .     On 30 September 2011 the High Court refused permission to seek judicial review on the papers. As to the failure to consider the applicant’s claim before her deportation, the High Court judge stated: “The claimant was due to be removed to Sri Lanka at 15.00 on 28 September. The directions for her removal had been served on her on 14   September. However, it was not until 28 September that her claim for judicial review proceedings challenging the directions for her removal was lodged. Her application for a stay on her removal directions came before me on 28 September as the ‘immediates’ judge. The claimant was one of 20 or so failed asylum-seekers due to be removed on the same flight who were asking for a stay on their removal. Although some of the applications could be considered by other judges when they became available, it was plain by about 14.00 that I would not be able to consider all the remaining applications by 15.00. In those circumstances, I was informed by [UKBA’s Operational Support and Certification Unit] which of the remaining applicants were on the main manifest, and which were on a reserve list – and therefore liable to be included on the main manifest only if someone on the main manifest was removed from the flight. Although my priority was to deal with the applications of those on the main manifest, I had not reached the claimant’s case by 15.28 when I was told that the doors were about to close. I was informed yesterday that the claimant had been on the flight.” 53 .     On the merits of the claim, the judge noted that if he had considered the first applicant’s case on 28 September, his difficulty would have been that her solicitors had not included in the bundle of documents the decision of the Immigration Judge. He said: “It would not have been possible for me to conclude that it was arguable that the rejection of the claimant’s solicitors’ representations, and the refusal to treat those representations as fresh claims, was legally flawed without reading that decision.” 54 .     The judge concluded that since the applicant had now been removed to Sri Lanka, no purpose would be served by reconsidering the matter once the decision of the Immigration Judge had been provided or by permitting her claim to proceed. (c)     The renewed application for permission 55 .     The first applicant renewed her application for permission to seek judicial review on 4 October 2011. The application was refused on 18   January 2012 following an oral hearing. The judge summarised the applicant’s case as follows: “9. ... [T]he claimant’s case was that there was in this case post appeal evidence of additional brutality and its after effects, in particular creating an increased dependency on her family in the UK and a risk of suicide, those justifying the Secretary of State in treating this application as a fresh application for asylum, engaging both issues of Article 3 and human rights consideration in addition pursuant to Article 8.” 56 .     He reviewed the determination of the First-tier Tribunal and observed: “11. It is clear that, having heard evidence from both the claimant and her sister ... the judge concluded, in emphatic terms, that neither sister was credible in any relation to the claims for asylum. In short, he concluded that both the claimant and her sister had told a pack of lies. 12. It follows that it is against that very unpromising background of evidence from the claimant having been heard and considered by a judge and effectively damned in such strong terms that the question whether the Secretary of state was right to conclude that any further claim based on additional materials stood no reasonable prospects of success.” 57 .     He noted the arguments of the first applicant’s counsel, namely that the Secretary of State had failed adequately to take into account the psychiatrist report in reaching her conclusion on the Article 8 issue; that it was not open to the Secretary of State, in light of that report and the Sri   Lankan lawyer’s letter, to conclude that the first applicant’s evidence was inconsistent and untrue; and that it was perverse for the Secretary of State to have reached the findings she did on the first applicant’s suicide risk, given the evidence. He continued: “15. In my view, the problem with the submissions that [counsel for the applicant] has advanced ... is that they overlook the fundamental question of credibility and the context in which this new evidence was raised very much at the eleventh hour. The immigration judge’s determination was, as I have indicated, a savage series of findings in terms of the credibility of the claimant’s account. On the face of it, in circumstances where this claimant had given evidence dealing with her alleged treatment in custody in Sri Lanka in 2009 and the brutal treatment meted out to her, all of which evidence was considered by the immigration judge, it seems to me that the Secretary of State was well entitled to conclude that there was no realistic prospect of success in circumstances where completely new allegations were now being advanced some two days before removal directions were set and in circumstances where none of that evidence, including the medical evidence ..., provided a sensible or satisfactory explanation for the failure to mention these important allegations at the time of the original appeal.” 58 .     He found that in these circumstances, it was impossible to characterise the Secretary of State’s decision as unlawful and dismissed the renewed application for judicial review. 8.     Events following the applicant’s return to Colombo (a)     The first applicant’s account 59 .     The first applicant alleges that, after arriving at Colombo airport, she was detained and interrogated by Sri Lankan authorities. One of her interrogators struck her on the forehead. She further claimed that, when released from this initial detention and preparing to leave the airport, she was abducted, blindfolded and removed to an unknown location by an unknown person. Her clothing was forcibly removed. Her captors asked whether she was “still” linked with the LTTE and had taken part in LTTE activities while living in the UK. They accused her family of funding the LTTE. The men showed her copies of her asylum papers they had found in her bag, which she claimed had been packed by United Kingdom officials at the immigration removal centre, and asked her questions about them. They then beat her, kicked her, stabbed her with a broken ballpoint pen and did further “unspeakable bad things” to her. Eventually they forced her to sign statements written in Sinhalese. 60 .     The first applicant alleges that her interrogators ultimately released her from their custody. After seeking treatment at a hospital, she became frightened, went into hiding and was unable to contact her family in the United Kingdom for more than three months. She has submitted a copy of a letter from a doctor at the National Hospital of Sri Lanka in Colombo addressed “to whom it may concern”. The letter states that, according to the hospital records, on 6 October 2011, the first applicant “presented with multiple physical injuries and psychological trauma.” She had “sustained head, arm and leg injuries, scratches around [her] neck and bruises on her face caused by torture and other ill-treatment”. 61 .     The first applicant also maintains that, since emerging from detention, she has twice attempted to commit suicide, as documented by a letter from the same doctor dated 14 January 2012. She claims that she is currently staying with an acquaintance and that her husband and sons remain missing. (b)     The evidence of the British High Commission 62 .     Two officials from the British High Commission in Colombo met the first applicant’s flight as it arrived at the airport. One of the officials has set out his account of events in a letter dated 3 October 2011. He explained that the group of fifty returnees was escorted to a seated area in immigration arrivals. They were addressed by a Tamil-speaking migration officer who explained the processes that they would have to go through. The British High Commission official then addressed them in English. In his letter, he said: “None of the returnees appeared ill or distressed in any way and their main concerns seemed to be around being reunited with their baggage and belongings.” 63.     The first returnees were interviewed from around 11.15 a.m., by the Department of Immigration and Emigration first and then by the State Intelligence Service and CID jointly to ascertain their mode and route of travel to the United Kingdom, what they had been doing there and whether they had been involved in previous criminal activity in Sri Lanka. Once the interviews were completed, their passports were stamped allowing them to leave. They were then addressed by a representative of the International Organization for Migration, who gave them a travel grant equivalent to GBP   50 for onward travel and accommodation if required and took their contact details. 64.     The first returnee was allowed to leave at 1.20 p.m. The last of the returnees passed through customs at approximately 5   p.m. The official accompanied most of the returnees to the baggage reclaim area, where he oversaw the collection of their bags. The official was made aware that one of the first male returnees processed had been identified as the subject of an outstanding criminal arrest warrant and would therefore be arrested once he had completed immigration procedures. The official was provided a copy of the court warrant. He was subsequently informed that the arrest had taken place and spoke to the police officer who had made the arrest and the returnee himself. 65.     By supplementary letter dated 13 September 2012, intended to address questions arising in the proceedings before this Court, the official confirmed that no female on the flight was questioned for any considerable length of time. Aside from the one returnee who was arrested, no other returnees were detained. All returnees were addressed either by him or his colleague, and one of the two accompanied every single passenger to the baggage reclaim area and reunited them with their bags. The officials gave the returnees their business cards. The official emphasised that he and his colleague remained with the passengers throughout the whole process and would have noticed had any of them shown signs of illness, injuries or distress. Each of the returnees had ample opportunity to seek assistance from him and his colleague. 66 .     The official accepted that in theory a returnee could have been apprehended as she was about to leave the airport. He continued: “The arrivals area is normally crowded with waiting friends and relatives, plus the media were in attendance specifically for the charter flight. It would however be questionable as to why the authorities would wait until that stage when the person could have been arrested or detained during the border control process if they were of further interest.” B.     Relevant domestic law and practice 1.     Asylum appeals 67.     Section 82(1) of the Nationality, Immigration and Asylum Act 2002, provides a right of appeal to the First-tier Tribunal (Immigration and Asylum Chamber) against an immigration decision made by the Secretary of State for the Home Department, inter alia, on the grounds that the decision is incompatible with the Convention. Section 11 of the Tribunals, Courts and Enforcement Act 2007 provides a further right of appeal to the Upper Tribunal, with the permission of the First-tier Tribunal or the Upper Tribunal, on a point of law. 68 .     Paragraph 353 of the Immigration Rules provides that further submissions made after an asylum claim has been determined 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)   has not already been considered; and (ii)   taken together with the previously considered material, creates a realistic prospect of success. 2.     UKBA’s policy instruction on judicial review and removal 69.     UKBA’s policy instruction on judicial review and injunctions provides that UKBA will normally defer removal where a judicial review application has been properly lodged with the High Court in accordance with the applicable Practice Direction. However, where it is considered appropriate because of the complexity, practicality and cost of a charter flight, a judicial review application may not defer removal unless an injunction is obtained from the High Court. 3.     Country guidance determinations in respect of Tamils returning to Sri Lanka 70 .     The country guidance case-law applicable at the relevant time was set out in LP (LTTE area – Tamils – Colombo – risk?) Sri Lanka CG [2007] UKAIT 00076 (“ LP ”) (subsequently endorsed by this Court in NA.   v.   the   United Kingdom , no. 25904/07, §   95, 17 July 2008) and TK   (Tamils – LP updated) Sri Lanka CG [2009] UKAIT 00049 (“ TK ”). The findings in both cases are set out in detail in the Court’s judgment in E.G.   v.   the United Kingdom , no. 41178/08, §§ 13-16, 31 May 2011. 71 .     In short, the risk factors identified in LP and confirmed in TK were the following: (1) Tamil ethnicity; (2) a previous record as a suspected or actual LTTE member; (3) a previous criminal record and/or outstanding arrest warrant; (4) bail jumping and/or escaping from custody; (5) having signed a confession or similar document; (6) having been asked by the security forces to become an informer; (7) the presence of scarring; (8) return from London or other centre of LTTE fundraising; (9) illegal departure from Sri Lanka; (10) lack of an ID card or other documentation; (11) having made an asylum claim abroad; (12) having relatives in the LTTE. 4.     UKBA’s policy instruction on gender-related asylum claims 72.     Section 7 of UKBA’s policy instruction on gender issues in asylum claims covers interviewing and assessment of credibility. Section 7.1 notes that each applicant will have been asked at screening to indicate a preference for a male or female interviewer. It explains that it should normally be possible to comply with a request made in advance of an interview. It clarifies that requests made on the day of an interview for a male or female interviewer or interpreter should be met “as far as is operationally possible”. 73.     Section 7.2 states that while the substantive asylum interview represents an applicant’s principal opportunity to provide full disclosure of all relevant factors, the disclosure of gender-based violence at a later stage in the determination process should not automatically count against her credibility. It explains that there may be a number of reasons why an applicant might be reluctant to disclose information, for example feelings of guilt, shame, and concerns about family honour, or fear of traffickers or having been conditioned or threatened by them. In particular, it refers to the possibilit