CEDH · CASELAW;COMMUNICATEDCASES;ENG — 26 juin 2012

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s3E839E41 { margin-top:12pt; margin-bottom:30pt; text-align:center } .sE2F02CD4 { margin-top:30pt; margin-bottom:30pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s2D57E2E { font-family:Arial; font-weight:bold; text-decoration:underline; text-transform:uppercase } .s90647315 { margin-top:30pt; margin-left:29.2pt; margin-bottom:24pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s25BD2B45 { margin-top:24pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s984A15CA { margin-top:6pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sD5DF731 { margin-top:0pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s6477A72F { margin-top:0pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s1913A4C6 { margin-top:6pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .sEC2CB098 { margin-top:6pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .sA1CDB767 { margin-top:6pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sFD4D42B6 { margin-top:12pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s281358E1 { margin-top:12pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s988F61DE { margin-top:12pt; margin-left:21.25pt; margin-bottom:18pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s70C4D0A2 { margin-top:18pt; margin-left:36.3pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s8F4EE4B8 { margin-top:6pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7940ED5C { font-family:Arial; font-style:italic; text-decoration:underline } .s21F08A35 { margin-top:18pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s1B0D0B53 { margin-top:12pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s8A9F351B { margin-top:12pt; margin-left:21.25pt; margin-bottom:24pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sC31874BD { margin-top:24pt; margin-left:29.2pt; margin-bottom:24pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s197FB613 { margin-top:6pt; margin-left:21.25pt; margin-bottom:18pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s471F7CE { margin-top:6pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .sC443675D { margin-top:36pt; margin-bottom:30pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3C0142D3 { margin-top:30pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s87F05BA2 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s11869A80 { margin-top:0pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s85D2D43C { margin-top:0pt; margin-bottom:36pt; text-align:center } .s76CF415B { page-break-before:always; clear:both } .s7D05E333 { margin-top:36pt; margin-bottom:30pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } FOURTH SECTION Application no. 16458/12 N. and Others against the United Kingdom lodged on 15 March 2012 STATEMENT OF FACTS A.     The circumstances of the case 1.     Introduction 1.     The present applicant has been lodged by three people who are of Sri Lankan origin and Tamil ethnicity. The first applicant, Ms N., is a Sri Lankan national who was born in 1961 and now lives in Sri Lanka. The second is her brother, J. He was born in 1967 in Sri Lanka but is now a British national, having lived in the United Kingdom since 1990. The third applicant, Ms A., is the first applicant’s mother. She was born in 1935 is a Sri Lankan national who has lived in the United Kingdom with the second applicant since 2006. They are represented by Mr A. Weiss, a lawyer practising in London with the AIRE Centre. 2.     The application concerns the first applicant’s removal by the United Kingdom authorities to Sri Lanka on a charter flight on 28 September 2011, after her asylum claim had been considered and dismissed by the United Kingdom authorities. 3.     Her asylum claim, the domestic proceedings in the United Kingdom and the events which she alleges took place upon her arrival in Sri Lanka, may be summarised as follows. 2.     The applicant’s account of her detention and ill-treatment in Sri Lanka 4.     In 2008, the first applicant, her husband and two of her three teenage sons fled from the armed conflict in northern Sri Lanka and settled in Colombo. The first applicant’s eldest son had previously disappeared while the family was living in northern Sri Lanka; the first applicant believes the Liberation Tigers of Tamil Eelam (“the LTTE”) may have forcibly conscripted him. 5.     The first applicant’s husband was a justice of the peace and had the power to sign passport applications as part of his official role. After the family fled to Colombo, he also operated a small grocery shop there for a brief period. 6.     On 26 November 2008, the first applicant obtained a United Kingdom visitor’s visa to visit the second applicant, his wife and their newborn child. Her sister and her sister’s teenage daughter obtained visitors’ visas on approximately the same date and for the same purpose. 7.     On 4 February 2009, Sri Lanka’s Independence Day, the presence of police and other government agents in Colombo increased and the first applicant was stopped at a checkpoint. Government agents examined her identity card, which listed her place of birth as Karampon, a town in a predominantly Tamil area of northern Sri Lanka. The agents asked why the first applicant had come to Colombo and then asked whether she had come to plant a bomb. The first applicant explained that she lived in Colombo and denied any intention of committing an act of violence. The agents then placed her in detention for several days. 8.     During this detention, the first applicant maintains that government officers subjected her to sustained physical and sexual violence, kicking her and striking her with rifle butts on the abdomen, chest and face, resulting in the loss of several teeth in her upper jaw. Three of the officers forcibly removed her clothing, sexually assaulted her and raped her. During the rape, the officers made comments accusing her of being an LTTE member. The first applicant fainted during the rape and woke up on the floor partially undressed. 9.     Owing to the efforts of a lawyer retained by her husband, the first applicant was released from detention on condition that she report to the authorities on a weekly basis. Shortly after, when the first applicant informed her husband that she had been raped, he disappeared. 10 .     On 27 March 2009, while the first applicant’s two younger children were at school, three Criminal Investigation Department officers came to the family home and informed the first applicant that they were looking for her husband. When the first applicant told them that her husband was not present, the three CID officers proceeded to search the house. When the CID officers failed to find the first applicant’s husband in the family residence, they became violent, striking the first applicant and forcibly removing her to a white van. The officers then drove the first applicant to a camp in an unknown, government-controlled area of Sri Lanka. 11.     The first applicant maintains that she was detained and interrogated in a room at the camp for approximately three days. During the interrogations, CID officers disclosed that they believed that the first applicant’s husband had supported the LTTE by signing the LTTE members’ passport applications. While interrogating the first applicant, CID officers placed a polythene bag filled with petrol over her face and demanded that she tell them where her husband was. The officers showed the first applicant several signatures and asked her to identify them as her husband’s. The first applicant told the officers that the signatures did not match her husband’s. The officers placed a book on her head and then struck her with a pole; they also repeatedly submerged her head in a barrel of water, making her believe she would drown. As during her first detention, the first applicant was also subjected to sexual violence, with four officers taking turns to rape her. The four officers forcibly penetrated the first applicant for approximately five minutes each. 12.     The first applicant lost consciousness during or after the rape. She subsequently became ill and developed diarrhoea. Her captors transferred her to a hospital in a remote forest area, where she was kept alone on a floor. A guard was stationed on the hospital grounds. At the hospital, the first applicant was treated by a doctor and a Tamil nurse. After the first applicant disclosed some of her mistreatment to the nurse, the nurse offered to help her escape; the first applicant used her gold earrings to pay the nurse to help her. The nurse lent the first applicant a nurse’s uniform and led her through the rear of the hospital at 2 a.m. The first applicant was met by the nurse’s husband, who owned an auto-rickshaw taxi and drove the first applicant to the home of one of her husband’s friends in Wattala, a town near Colombo, with a population of 29,000. The first applicant remained hiding in her husband’s friend’s house for a week. Shortly after the first applicant’s escape, she learned through a friend that there was no one living at her house and that her husband and, now, her younger children were missing. The first applicant has not seen or been able to locate her husband or any of her children since the time of the events described above. 13.     Using the proceeds from the sale of her belongings, she paid an agent to smuggle her illegally out of Sri Lanka along with her sister (who would also later submit an asylum claim) and her sister’s teenage daughter, and passed through Kuwait before arriving at Heathrow airport on 6 April 2009. 3.     The first applicant’s asylum claim 14.     In the United Kingdom, the first applicant did not disclose to her brother or to the solicitor whose services he had secured that she had been raped. The first applicant maintains that she did not do so because the solicitor, although a fellow Tamil speaker, was male. Through the solicitor, she claimed asylum on 27 April 2009. The application stated that the first applicant had a well-founded fear of persecution because she was an ethnic Tamil from northern Sri Lanka; she had been detained and tortured by Sri Lankan authorities; as a result of her detention, 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 Sri Lankan authorities regarded as a centre of LTTE activity and fundraising; and she had escaped from Sri Lankan government custody. 15.     On 27 April 2009, the first applicant attended an asylum screening interview. The interview was conducted with the aid of a male, Tamil speaking interpreter. The interviewer did not ask the first applicant if she had experienced sexual violence during her detentions in Sri Lanka. The first applicant maintains that, when asked about her health, she disclosed sequelae of her ill-treatment including ‘headaches and pains’ and further stated that she had left hospital “without notification” but that no further inquiries where made by the interviewer. 16.     On 29 November 2010 the first applicant’s asylum interview took place. She was again assisted by a male, Tamil-speaking interpreter. During the interview, the first applicant indicated that her husband and three children had disappeared. She further explained, as she had during her asylum screening interview that her husband was a justice of the peace who signed passports and that she has been arrested and detained after CID officers had come to the family home to look for him. She clarified that the CID believed her husband had signed the passport applications of ‘LTTE boys’. In response to further questions, the first applicant described her torture at the hands of the CID officers, stating that the officers had ‘ill treated [her] very badly’ after taking her to a camp in a white van. She also gave the details of that ill-treatment (as summarised at paragraph 10 above) but did not mention the rape or sexual assault. The interviewer recorded that the first applicant “appear[ed] distressed” when discussing her March 2009 detention and ill-treatment but did not ask if she had experienced sexual violence whilst being held in detention. 4.     The Secretary of State’s decision 17.     The Secretary of State refused the first applicant asylum on 20   January 2011. 18.     The first applicant’s credibility was found to have been damaged by the fact that she had not claimed asylum immediately on arrival at Heathrow but four months after. (The first applicant states that this was a mistake on the part of the Secretary of State: she claimed asylum four weeks after her arrival and this delay had been because her mother had fallen ill.) 19.     In respect of her alleged arrest in February 2009, the Secretary of State found that, having lived in Columbo for a number of years, the applicant would already have registered with the authorities there. The fact that she claimed to have been detained because her ID card stated that she was from Karampon was not considered consistent with the purpose and use of compulsory registration in Columbo, casting doubt on her claim. 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 to report on a weekly basis, she did not know who she reported to or how many times she reported. 20.     In respect of her alleged arrest in March 2009, her claim to have been of interest to the CID was inconsistent with her account of having been left at the hospital without a CID presence. Although the applicant had stated that she had no contact with her husband or children since her escape, it was considered unlikely that she would have fled Sri Lanka without attempting to warn them of the CID’s interest in her husband. 21.     As regards her departure from Sri Lanka, the Secretary of State noted that she had all the necessary documents and means to leave legally and would not have required the assistance of an agent. Moreover she had been vague as to how her sister had arranged her departure, despite travelling with her. 22.     The Secretary of State considered the risk to the applicant on return to Sri Lanka in the light of these credibility findings and concluded that the Sri Lankan authorities would have no interest in her. The only risk factors applicable to her were Tamil ethnicity, return from London and having made an asylum claim abroad. This did not create, either separately or cumulatively, a real risk of ill-treatment on return. The applicant appealed against that decision to the First-tier Tribunal (Immigration and Asylum Chamber). 5.     The Tribunal’s determination 23.     The first applicant’s 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 first applicant did not disclose that she had been raped, but did submit medical evidence that she had been treated by the National Health Service for depression, social phobia disorder and anxiety. Her brother also gave evidence as to her symptoms, which included persistent fear, memory loss, insomnia and a tendency to wander around their home in the dark in the early hours of the morning. The first applicant also submitted documentation attributing her delay in claiming asylum to the hospitalisation of her mother, the third applicant, and gave evidence that she had not claimed asylum at the airport because the agent had advised her to contact a solicitor before doing so. 24.     Both appeals were dismissed by the Tribunal on 17 March 2011. In respect of the first applicant, the Immigration Judge upheld the Secretary of State’s finding that the applicant would have had to register with the police in Columbo. He also found that, if they had not registered, the applicant and her family would have been stopped at checkpoints long before February 2009. He also observed that the Sri Lankan authorities had issued the first applicant with a passport in November 2008, even though they knew she was from Karampon. As regards the first applicant’s release from her first period of detention, the Immigration Judge noted that her husband could not have known where the first applicant was being detained, when she herself did not know. The Immigration Judge also dismissed the first applicant’s explanation that she did not know where she reported afterwards because her husband has taken her there. 25.     For the second period of detention, the Immigration Judge found that the first applicant’s account made no sense: if the CID were after her husband they would have waited for him or gone to look for him, not taken her instead. It was not credible that, during her ill-treatment, she could have retained her gold earrings for later bribing the nurse, or that afterwards the CID would have taken her to a hospital where she was the only patient on the whole floor. The Immigration Judge also observed that the circumstances of her escape were: “so ludicrously lacking in credibility that it would struggle to be acceptable even as the plot of a ‘Carry-on’ film”. 26.     As regards the first applicant’s seeking refuge in Wattala, the Immigration 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, but had also implausibly claimed she could not go back to her own home because no one was there. The Immigration Judge observed that the first applicant had apparently forgotten that her husband and children would have come home by this point. The applicant’s explanation that her friend had told her that they were living elsewhere was an embellishment designed to plug a gap in her evidence. The Immigration Judge also rejected the account of the first applicant and her sister of how they had made contact by mobile telephone, after the sister’s daughter was said to have retrieved the mobile telephone from her home. The Immigration Judge observed that the first applicant did not know when her sister received the telephone and so could not have known when to call. He added: “I hope that the daughter retrieved the charger as well but perhaps [the sister’s] friend already had one!?” 27.     The Immigration Judge also rejected the first applicant’s account of selling her home and travelling with the aid of an agent as a total fabrication. 28.     The Immigration Judge further rejected the first applicant’s sister’s account of her detention and ill-treatment as remarkably similar to that of the first applicant, in that she too claimed to have been detained twice and to have escaped on the second occasion, after having been taken to a hospital for treatment. 29.     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 Immigration Judge had no doubt that they had been in contact with their respective husbands and that the first applicant had been in contact with her sons. The explanation for their delay in claiming asylum (their mother’s ill-health) was also rejected. The Immigration Judge added: “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, a request that had been granted] 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.” 30.     The appeal based on Article 8 of the Convention was also dismissed, as removal was found to be appropriate and proportionate. 6.     The appeals against the Tribunal’s determination 31.     The first applicant and her sister sought permission to appeal against the Tribunal’s determination inter alia on grounds of bias and the fact that the Immigration Judge had failed properly to consider the applicants’ case under Article 8 of the Convention. The application was dismissed by a different Immigration Judge of the First-tier Tribunal who stated: “The [initial] 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. As a result there appears to me to be no realistic prospect of success on appeal in relation to article 8...” 32.     The first applicant and her sister renewed their application to the Upper Tribunal, which dismissed it on 6 July 2011 for the same reasons as given 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. 7.     The first applicant’s mental health and her placement in immigration detention 33.     In August 2011, the first applicant’s NHS counselling psychologist informed the second applicant and the first applicant’s general practitioner that the first applicant was ‘having suicidal thoughts of throwing herself in front of a train or traffic’. The counselling psychologist further recorded the first applicant’s statement that she (the first applicant) had attempted suicide two weeks earlier by stepping out in front of a passing car. On 6 September 2011, the general practitioner confirmed that the first applicant suffered from depressive illness, that her antidepressant medication was not working, and that her prognosis was poor. 34.     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 on the same date. On 15 September 2011, medical personnel at the immigration removal centre recorded that the first applicant had told them that she had been tortured by the Sri Lanka army and, as part of that torture, had been raped. On 26 September 2011, a psychiatrist who interviewed the first applicant while she was in detention recorded that officials at the immigration removal centre had placed the first applicant on suicide watch. 8.     The first applicant’s fresh asylum claim 35.     On 15 September 2011 the first applicant submitted a fresh claim for asylum to the Secretary of State. She relied on her declining mental health, and that fact that her rape had not previously been considered by the Secretary of State, or the First-tier and Upper Tribunals. Those acting on her behalf submitted that the reason for the first applicant’s failure previously to disclose the rape was that she may have been 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. 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. 36.     On 23 September 2011, the Secretary of State informed the first applicant that the fresh representations she had made did not amount to a fresh asylum claim. 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 recalled that the First-tier Tribunal had not believed her account, even to the smallest degree. For that reason, the Secretary of State did not accept the first applicant’s explanation for her failure to disclose the rape sooner. The Secretary of State added that, even if the first applicant were credible, it was not clear what the rape would add to her claim to be at risk on return to Sri Lanka. As regards the first applicant’s mental health, the Secretary of State noted that the first applicant 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 whatever problems she had with her family. The Secretary of State maintained her position that removal would also be a proportionate interference with the first applicant’s rights under Article 8. 37.     The following day, the first applicant was interviewed by an independent male psychiatrist with the assistance of a female interpreter. 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 first applicant also expressed a desire to commit suicide if returned to Sri Lanka, as this would be preferable to being tortured and killed by soldiers. The psychiatrist concluded that the first applicant was suffering from depression and chronic post-traumatic stress disorder and had been acutely unwell at the time of the interview. 38.     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 the Columbo Magistrates’ Court, represented by him), the first applicant made further, urgent representations to the Secretary of State. 39.     Those representations were rejected by the Secretary of State at 11.41 a.m. on 28 September 2011. 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 himself: he had said she was released on bail, she had said she was released with a reporting requirement; and she did not know where to report, whereas he said it was to a particular police station. As regards the first applicant’s worsening mental health, the Secretary of State noted that this had been caused by her detention and thus would improve after removal. There was no clear evidence that the first applicant would commit suicide, and she had been assessed as fit to travel. Despite the applicant’s representations to the contrary, the Sri Lankan health system also provided adequate treatment. 9.     The first applicant’s judicial review claim and her removal from the United Kingdom 40.     Upon receiving the Secretary of State’s decision the first applicant commenced judicial review proceedings in the High Court. The application for judicial review alleged that the Secretary of State’s failure to treat the first applicant’s post-appeal evidence concerning her rapes, psychiatric illnesses and suicide risk as a fresh claim violated domestic law as well as Articles 3 and 8 of the Convention. She maintains that the papers were lodged at some time prior to 2 p.m. on 28 September 2011. 41.     The first applicant further maintains that the application was received by a High Court judge sometime prior to 2 p.m. The judge later recorded in his decision of 30 September 2011 (see paragraph 47 below) that he had attempted to consider each of the applications submitted by failed asylum applicants on the charter flight’s main manifest prior to the flight’s departure, but that he had not had time to consider the first applicant’s case “by 15:28 when I was told that the doors were about to close”. 42.     No order was made to suspend the first applicant’s removal and she was placed on the charter flight at or around 3 p.m. Many of the 49 other Sri Lankans on board 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, and some of these individuals were removed from the plane prior to departure as the High Court ordered that they were not to be removed pending those proceedings. 43.     The first applicant maintains that, at or around 8 p.m. on 28   September 2011, while her application for judicial review was pending and approximately four and a half hours after United Kingdom authorities had informed the High Court judge that the doors were about to close, the charter flight departed. The first applicant had been carried onto the plane by two men and became profoundly distressed during the flight, experiencing chest pains. 10.     Events at Columbo airport 44.     The first applicant alleges that, after arriving at Columbo airport, she was detained and interrogated by authorities. One of her interrogators struck her on the forehead; later, another noticed that her head was swelling where she had been struck and asked her mockingly whether the United Kingdom authorities had tortured her and, if so, what she had done to prompt them to do so. 45.     When the first applicant was released from this initial detention and was preparing to leave the airport, an unknown individual told her to come with him. She was then abducted, blindfolded and removed to an unknown location. Her clothing was forcibly removed; when one of her captors saw that she was wearing a rosary, he said “this is not going to protect you.” Her captors asked whether she was “still” linked with the LTTE and had taken part in LTTE activities whilst living in the UK. They accused her family of funding the LTTE. The men showed her copies of her   asylum papers (she believes they must have been put in her bag by United Kingdom officials when they were packing her bags for her at the immigration removal centre) and asked her questions about them. They proceeded to beat her with fists, poles and batons, kicked her and 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. 46.     The first applicant’s 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. 11.     The High Court’s determination of the judicial review claim 47 .     On 30 September 2011, the High Court refused the first applicant’s application for permission to proceed with a claim for judicial review. The High Court judge stated: “The claimant [the first applicant] 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 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. The claimant’s case is that the rejection by UKBA of the further representations made on her behalf on 15 and 27 September and the decisions not to treat those fresh representations as amounting to a fresh claim were legally flawed. A critical part of UKBA’s reasoning was that her claim to have been raped was disbelieved by the immigration judge on her appeal against the refusal of her claim for asylum. I know, of course, about the concerns expressed in some quarters that our courts and tribunals too readily reject allegations of rape made by asylum-seekers. But whether the claimant had in truth been raped – and when she had first complained of rape, which would have been highly relevant to whether she had been raped - was of the greatest importance in considering whether her mental state was such as to amount to a visible argument that her removal to Sri Lanka would infringe her Art. 8 rights. If I had considered the claimant’s case on 28 September, my difficulty would have been that the claimant’s solicitors had not included in the bundle of documents the decision of the immigration judge. If 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. Since the claimant has now been removed to Sri Lanka, no purpose would be served by reconsidering the matter once the court has been provided with the decision of the immigration judge or by permitting her claim to proceed.” 48.     The first applicant’s representatives made a renewed application for permission to seek judicial review on 4 October 2011; this was refused on 18 January 2012. The judge considered the initial determination of the Tribunal and observed: “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. ... [Counsel for the claimant’s submissions] 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. In those circumstances, I take the view that it is impossible to characterise the Secretary of State’s decision in relation to this application as unlawful and accordingly, I dismiss this renewed application for judicial review.” 12.     The first applicant’s current condition 49.     The first applicant has submitted a letter from a doctor at the National Hospital of Sri Lanka in Colombo which states that on 6 October 2011, she “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”. The first applicant also maintains that, since emerging from detention, she has twice attempted to commit suicide, as documented by doctors in Sri Lanka. She is currently staying with an acquaintance. Her husband and sons remain missing. 13.     The present application 50.     The present application was lodged on 15 March 2012, that is, after the first applicant’s removal to Sri Lanka. No request for interim measures under Rule 39 of the Rules of Court was made prior to her removal. B.     Relevant domestic law and practice 1.     Asylum and human rights claims 51.     Section 82(1) of the Nationality, Immigration and Asylum Act 2002, provides a right of appeal 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. 52.     Since 15 February 2010, appeals in asylum, immigration and nationality matters have been heard by the First-tier Tribunal (Immigration and Asylum Chamber). Section 11 of the Tribunals, Courts and Enforcement Act 2007 provides a right of appeal to the Upper Tribunal, with the permission of the First-tier Tribunal or the Upper Tribunal, on any point of law arising from a decision made by the First-tier Tribunal other than an excluded decision. 53.     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. 2.     Fresh asylum and human rights claims 54 .     Section 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 provides as follows: “When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules 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.” 55.     As regards the scrutiny of fresh asylum claims and the power of the courts to review such scrutiny, the Court of Appeal in WM (DRC) v. Secretary of State for the Home Department [2006] EWCA Civ 1495 (paragraphs 10-11) has held: “Accordingly, a court when reviewing a decision of the Secretary of State as to whether a fresh claim exists must address the following matters. First, has the Secretary of State asked himself the correct question? The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return ... The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting-point for that enquiry; but it is only a starting point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind. Second, in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts, has the Secretary of State satisfied the requirement of anxious scrutiny? If the court cannot be satisfied that the answer to both of those questions is in the affirmative it will have to grant an application for review of the Secretary of State’s decision.” Thus, an applicant making fresh representations must establish that they have a realistic prospect of success to establish a “fresh claim” which, even if then refused by the Home Office, will nonetheless generate a fresh right of appeal to be considered on the merits. 3.     UKBA’s policy instruction on judicial review and injunctions 56 .     The above instruction 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. 4.     Country guidance determinations in respect of Tamils returning to Sri Lanka 57.     The AIT’s determination in LP (LTTE area – Tamils – Colombo – risk?) Sri Lanka CG [2007] UKAIT 00076 was considered by this Court in NA. v. the United Kingdom , no. 25904/07, 17 July 2008. The headnote to the determination provided: “(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...” 58.     LP was reconsidered by the AIT in the light of NA. in TK (Tamils – LP updated) Sri Lanka CG [2009] UKAIT 00049. The AIT’s conclusions were summarised in the headnote to the determination which, where relevant provides: “a)     The risk categories identified in LP (LTTE area – Tamils - Colombo – risk?) Sri Lanka CG [2007] UKAIT 00076 and approved by the European Court of Human Rights (ECtHR) in NA v UK , App.no. 25904/07, remain valid. b)     Events since the military defeat of the LTTE in May 2009 have not aggravated the likely approach of the Sri Lankan authorities to returned failed asylum seekers who are Tamils; if anything the level of interest in them has decreased. The principal focus of the authorities continues to be, not Tamils from the north (or east) as such, but persons considered to be either LTTE members, fighters or operatives or persons who have played an active role in the international procurement network responsible for financing the LTTE and ensuring it was supplied with arms. c)     The records the Sri Lanka authorities keep on persons with some history of arrest and detention have become increasingly sophisticated; their greater accuracy is likely to reduce substantially the risk that a person of no real interest to the authorities would be arrested or detained.” 5.     Case-law on Sri Lankan charter flights 59.     UKBA have conducted five charter flights to Sri Lanka since June 2011 which have taken place on 16 June 2011, 28 September 2011, 15   December 2011, 28 February 2012 and 31 May 2012. Each flight has returned approximately fifty Sri Lankan nationals (including failed asylum seekers) to Columbo airport. 60 .     On 27 February 2012 the Upper Tribunal (Immigration and Asylum Chamber) heard an application for judicial review of the Secretary of State’s decision to refuse to consider the fresh representations of a Sri Lankan Tamil as amounting to a fresh asylum claim and to set directions for his removal to Sri Lanka ( R (on the application of X) v Secretary of State for the Home Department , unreported). The main issue in the application was whether there was an elevated risk of ill-treatment to Tamils returned on charter flights. Having reviewed the evidence before it, including reports by Amnesty International, Freedom from Torture and Human Rights Watch and a letter from a returnee, RS, who claimed to have been ill-treated, the Upper Tribunal concluded that there was not. It reasoned: “Whilst the materials from the [United Nations Committee against Torture], Amnesty International, Human Rights Watch and others indicate that there are significant concerns currently about the use by the Sri Lankan authorities of torture and their ill treatment of those detained, especially those suspected of LTTE involvement, this is evidence that the Defendant [the Secretary of State] accepts and has taken into account in consideration of the Claimant’s fresh claim. Although this evidence paints a worrying picture as to ongoing human rights abuses in Sri Lanka, it remains that the evidence before the Defendant also includes materials indicating that there has been a very considerable reduction in the numbers of internally displaced persons and that in relation to treatment of failed asylum seekers the view of the ECtHR expressed less than a year ago in E.G. v UK [no. 41178/08, 31 May 2011],