Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä

The applicant was born in DATE in GPE . He currently lives in GPE . He is of NORP ethnicity .

The applicant entered GPE clandestinely on DATE and claimed asylum DATE . He stated that he feared ill - treatment in GPE by the GPE army and ORG ( “ the NORP ” ) . He explained that he had been arrested and detained by the army on CARDINAL occasions DATE on suspicion of involvement with the NORP . Following his last detention he went into hiding until his family managed to fund his journey to GPE . He feared the NORP on account of their adverse interest in his father who had done some work for the army . They had also tried to recruit the applicant on CARDINAL occasions in DATE .

His claim was refused by the Secretary of ORG on DATE . His appeal against that decision was heard and dismissed by an Adjudicator on DATE . It was found that the applicant ’s account was credible : namely , he had been arrested by the army on some CARDINAL occasions DATE on suspicion of his involvement with the NORP . He was detained for CARDINAL on the first occasion and for DATE on the last . There was no evidence as to how long the other periods of detention had lasted . On each occasion he was released without charge . During CARDINAL or possibly more of these periods of detention he was ill - treated and his legs had scars from being beaten with batons . According to the Adjudicator , it may have been that the arrests took place in the course of round - ups . During the DATE detention the applicant was photographed and his fingerprints were taken and his father signed certain papers in order to secure his release . He went into hiding in a temple and wanted to leave GPE at that stage but it took time for his mother to obtain money from his brother to pay the agent for his departure .

NORP However , the Adjudicator found that the applicant ’s fear of ill - treatment by the army upon his return was unjustified . It was noted that , since his departure from GPE , there had been a ceasefire between the army and the NORP for a considerable time , checkpoints had been dismantled , and the ORG had been able to open political offices and roads in the north . It was unlikely that he would attract any interest on the part of the authorities upon his return . Even if the record of his arrests was found it would be seen that he had been held for short periods and released without charge on each occasion . There was no record that he had ever been involved with the NORP or that he had ever been wanted by the authorities . There was no reason why he should be strip - searched on return and , even if his scars were found , they would not cause the authorities to take an interest in him , certainly not to the extent of detaining and ill - treating him .

As to his fear of the NORP , the Adjudicator appeared to accept that the applicant ’s brother had done non - combative work for the NORP , though he was never a member . He , the brother , had been arrested by the army but never charged and had left GPE for GPE in DATE . It was found unlikely that the ORG would still have any interest in the applicant and if he was settled in GPE it would be unlikely that they could track him down . In any event , he could apply to the authorities for protection . As to his argument that he was in need of psychiatric treatment as a result of post - traumatic stress disorder , it was found that adequate treatment would be available in GPE .

He was issued with removal directions for DATE and made further representations attempting to lodge a fresh asylum application on DATE . On DATE the Secretary of ORG refused to consider his further representations as amounting to a new asylum application . The general situation in GPE did not indicate any personal risk of ill - treatment and there was no evidence that he would be personally affected upon return . The fact that he had been away from GPE for DATE suggested that he would hardly be of any interest to the Sri NORP authorities .

His application for permission to apply for judicial review was refused on DATE on the papers by Mr Justice PERSON who stated :

“ There is no question but that the situation in GPE has deteriorated over DATE and to such an extent that there is a real prospect [ that the full scale war between the ORG and the authorities will recommence . However , that does not of itself mean that no - one can be returned . The adjudicator accepted the claimant ’s account but noted that he had only been detained for short periods , possibly in general round ups , and had not assisted the NORP . All this was over DATE .

In the circumstances , it is not possible to say what has been happening creates a real risk of relevant ill - treatment for this claimant . Thus I do not think there is any arguable error of law in the defendant ’s decision . ”

The applicant ’s renewed application was refused by Mr Justice PERSON at an oral hearing on DATE .

The applicant was then issued with removal directions for DATE . On DATE , he made further representations to the Secretary of ORG arguing , inter alia , that removal would be incompatible with his rights guaranteed by the LAW . When the Secretary of ORG did not respond , on DATE the applicant sought to challenge this failure by judicial review .

It appears that DATE , the Secretary of ORG did in fact reject these representations as not amounting to a fresh claim . The Secretary of ORG relied on the findings of the Adjudicator and the observations of Mr Justice PERSON of DATE . The Secretary of ORG also considered a paper submitted by the applicant which had been issued by the ORG High Commissioner for Refugees ( ORG ) on DATE , entitled “ FAC on ORG from GPE ” ( “ the ORG Position Paper ” see paragraphs CARDINAL–CARDINAL below ) . He found , however , that the paper was general in nature and therefore little weight could be attached to it . Consideration was given to the applicant ’s claim that the political and security situation in GPE had worsened and whilst it was acknowledged that there had been some problems with the peace process , the NORP and the Sri NORP authorities were committed to peace and working towards an agreement . Notwithstanding QUANTITY bomb attacks in GPE , there was a “ distinct geographical limitation ” to recent incidents and it was open to the applicant to avoid the northern and eastern areas affected by the continuing operations of the GPE armed forces and the ORG . The majority of NORP could live in GPE and the south without harassment . Recent security operations in GPE were also noted but it was not considered that NORP in GPE were at risk of persecution due to their ethnicity or political opinions . The majority of people detained had been quickly released following identity checks . In terms of internal relocation , it was not unduly harsh to return failed asylum - seekers there . While there had been increasing levels of disappearances in GPE , progress had been made by the creation of an independent body to observe government investigations . The Secretary of ORG concluded that the points made in the applicant ’s submissions had not been previously considered , but taken with the materials considered in the original refusal of the applicant ’s asylum claim and the determination of his appeal by the Adjudicator , the new materials would not have created a realistic prospect of success and the submissions did not therefore amount to a fresh asylum claim .

The applicant then made an out of hours application for an injunction to ORG . This was granted by Mr Justice PERSON and the removal directions in place for the same evening were cancelled . In his subsequent order of DATE , Mr Justice PERSON stated :

“ I considered the Secretary of ORG ’s careful letter [ of DATE ] and am mindful of the fact that [ the applicant ] has had a previous application for judicial review dismissed . But in my view it is sufficiently arguable that the recent further deterioration in the situation in GPE may justify a fresh claim to make it just for removal to be deferred until this issue can be properly considered . I note in particular para . CARDINAL ( a ) of the recent ORG report [ which contained the ORG ’s recommendations in respect of NORP from the north or east – see paragraphs DATE below ] . I am aware that there are other pending applications for permission to apply for judicial review raising the same issue . ”

On DATE Mrs Justice Black refused the applicant ’s application for permission to seek judicial review of the Secretary of ORG ’s alleged failure to consider and determine the new representations made on DATE . She stated :

“ In fact [ the Secretary of ORG ] did consider the further representations and , in a letter of DATE , refused to treat them as a fresh claim . Strictly speaking that disposes of the proposed [ judicial review ] application .

However , it is clear that the claimant seeks in fact to advance a more fundamental challenge to the removal directions on the basis that the situation in GPE has deteriorated since the matter was last considered and has reached a point where the claimant would be at risk on return . ORG is placed on a ORG document dated DATE setting out the dangerous situation in GPE ... PERSON granted an injunction prohibiting removal on DATE , apparently referring to the deterioration in the situation in GPE and particularly para CARDINAL(a ) of the ORG report . It is understandable why he took this view .

However , now that some detail of the claimant ’s immigration history is available , it does not appear that he had advanced anything significantly different in the letter of DATE from that which was considered when representations were made on his behalf in DATE and in particular during the PERSON proceedings that concluded with an oral permission hearing on DATE . There is material in the DATE letter in addition to the ORG report which is later but there is also material that in fact relates to DATE ... Whilst I note with anxiety para CARDINAL(a ) of the ORG report as Mr Justice PERSON did ( and the contents of that report generally ) , in the light of the reasoning concerning this particular claimant who has been assessed by the adjudicator as not of interest to the authorities , the material does not amount to sufficient in my view to justify granted permission to commence a judicial review of the decision of DATE .

The injunction granted by PERSON will , however , be continued until either the time for renewal orally has expired without such an application being made or determination of the oral permission hearing if there is one . ”

The applicant then sought to renew his application for permission to apply for judicial review , submitting detailed amended grounds for his application on DATE . The oral hearing of the renewed application was listed for CARDINAL DATE but the applicant , appearing in person at the hearing , withdrew his application .

In a subsequent letter of CARDINAL DATE from the applicant ’s solicitors at the time of the judicial review proceedings to his current representatives before ORG , the former stated that the reason the judicial review application was withdrawn was that they , the solicitors , were without instructions from the applicant . They were informed by counsel that this was a “ pre - LP ” case ( see paragraphs CARDINAL–CARDINAL below ) and counsel felt that there were insufficient merits in the case to proceed to the oral hearing .

NORP The Secretary of ORG issued the applicant with removal directions to GPE for DATE . On DATE the President of the ORG decided to apply Rule CARDINAL of ORG and indicated to the Government of GPE that the applicant should not be expelled until further notice ( see paragraph CARDINAL above ) .

NORP In DATE , the ORG received an increasing number of requests for interim measures from NORP who were being returned to GPE from GPE and other ORG . By DATE , the President of the ORG had applied Rule CARDINAL in CARDINAL cases where NORP sought to prevent their removal to GPE from GPE . On DATE , ORG wrote to ORG , noting the increasing number of such Rule CARDINAL applications . Having regard to the security situation in GPE , he further noted that Rule DATE had been applied on each occasion an interim measure had been requested by an ethnic GPE . The letter continued :

“ The Acting President has consulted the Judges of the Section about his concerns including as regards the strain which the processing of numerous Rule CARDINAL applications places on judicial time and resources . The ORG has concluded that , pending the adoption of a lead judgment in CARDINAL or more of the applications already communicated , Rule DATE should continue to be applied in any case brought by a GPE seeking to prevent his removal .

The ORG has also expressed the hope that , rather than the Acting President being required to apply Rule CARDINAL in each individual case , your Government will assist the ORG by refraining for the time being from issuing removal directions in respect of NORP who claim that their return to GPE might expose them to the risk of treatment in violation of the LAW . ”

In his reply of DATE , the Agent set out the conclusions of ORG Operational Guidance Note of DATE on GPE and the findings of ORG in ORG . He concluded that in light of this information , the ORG did not consider that the current situation in GPE warranted the suspension of removals of all NORP who claimed that their return would expose them to a risk of ill - treatment . Each case had to be assessed on its merits against the available evidence . The Government was accordingly not in a position to assist the ORG by refraining from issuing removal directions in all such cases on a voluntary basis . Finally , he stated that the ORG would continue to make every effort to comply with any Rule CARDINAL indications made by ORG in accordance with their obligations under the LAW and their long - standing practice . However , in the circumstances , the ORG suggested that the difficulties posed by the increasing numbers of Rule CARDINAL requests by NORP could best be addressed through the adoption of a lead judgment by the ORG . The Government stood ready to co - operate with the ORG to bring such a case to an early conclusion .

The ORG has since applied Rule CARDINAL in respect of CARDINAL NORP applicants who claim that their return to GPE from GPE would expose them to ill - treatment in violation of LAW .

Sections CARDINAL(CARDINAL ) and CARDINAL(CARDINAL ) of the Immigration Act DATE provide for the making of Immigration Rules by the Secretary of ORG . Paragraph CARDINAL of ORG ( ORG CARDINAL , as amended by ORG ) states that :

“ When a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending , the decision maker will consider any further submissions and , if rejected , will then determine whether they amount to a fresh claim . The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered . The submissions will only be significantly different if the content :

( i ) had not already been considered ; and

( ii ) taken together with the previously considered material , created a realistic prospect of success , notwithstanding its rejection . ”

At the material time , the Nationality , Immigration and Asylum Act DATE ( Commencement No . CARDINAL ) LAW ) ( No . CARDINAL ) Order DATE , when taken with LAW and Part ORG Asylum Act DATE , provided for a right of appeal from an ORG determination to ORG . An appeal had to be on a point of law and the permission of ORG was required .

At present , by section CARDINAL(CARDINAL ) of the Nationality , Immigration and Asylum Act DATE , when a person has made either an asylum claim or a human rights claim , or both , an appeal may not be brought while the person is in GPE if the Secretary of ORG certifies that the claim or claims are clearly unfounded . Under section ORG ) , if the Secretary of ORG is satisfied that a claimant is entitled to reside in any of the GPE listed in the section CARDINAL(CARDINAL ) , he shall certify the claim under subsection ( CARDINAL ) unless satisfied that it is not clearly unfounded . LAW ) provides such a list of GPE and subsection ( CARDINAL ) gives the Secretary of ORG the power to add a ORG , or part of a ORG , to the list in subsection ( CARDINAL ) if satisfied that : there is in general in that ORG or part no serious risk of persecution of persons entitled to reside in that ORG or part ; and removal to that ORG or part of persons entitled to reside there will not in general contravene GPE obligations under LAW Subsection ( CARDINAL ) gives him the power to remove GPE from the list .

GPE was added to the list by ORG ) ( No . CARDINAL ) Order DATE ( Statutory Instrument CARDINAL/CARDINAL ) which entered into force on DATE . It was removed from the list by ORG ( LAW ) ( No . CARDINAL ) Order DATE which entered into force on DATE . Paragraph CARDINAL of the Explanatory Memorandum to the order cites the latest available information about the situation in GPE and in particular the deterioration in conditions as one of the factors for the Secretary of ORG ’s decision to remove it from the list .

Section CARDINAL of LAW DATE 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 ORG so far as , in the opinion of the court or tribunal , it is relevant to the proceedings in which that question has arisen . Section CARDINAL ) provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right .

Judicial review in GPE and GPE is regulated by Part CARDINAL of ORG . Rule CARDINAL.CARDINAL(CARDINAL ) defines a claim for judicial review as a claim to review the lawfulness of an enactment or a decision , action or failure to act in relation to the exercise of a public function . An application for judicial review has CARDINAL stages . The first is an application for permission to apply for judicial review ; the second , if permission is granted , is a substantive application for judicial review . Where permission is refused without a hearing , under Rule CARDINAL.CARDINAL(CARDINAL ) and ( CARDINAL ) the claimant may not appeal but may within DATE request the decision to be reconsidered at a hearing . Rule CARDINAL provides that where permission to apply for judicial review has been refused at a hearing in ORG , the person seeking that permission may within DATE apply to ORG for permission to appeal .

Appeals from decisions of the Secretary of ORG in asylum , immigration and nationality matters are now heard by ORG ( “ the ORG ” ) , which replaces the former system of ORG and ORG . Paragraph CARDINAL of the Practice Directions governing the operation of the ORG defines country guidance determinations of the ORG as follows :

“ CARDINAL.CARDINAL A reported determination of the [ ORG ] or of the ORG [ the former ORG ] bearing the letters “ CG ” shall be treated as an authoritative finding on the country guidance issue identified in the determination , based upon the evidence before the members of the [ ORG ] or the ORG that determined the appeal . As a result , unless it has been expressly superseded or replaced by any later “ CG ” determination , or is inconsistent with other authority that is binding on the [ ORG ] , such a country guidance case is authoritative in any subsequent appeal , so far as that appeal :

( a ) NORP relates to the country guidance issue in question ; and

( b ) depends upon the same or similar evidence .

CARDINAL Because of the principle that like cases should be treated in like manner , any failure to follow a clear , apparently applicable country guidance case or to show why it does not apply to the case in question is likely to be regarded as grounds for review or appeal on a point of law . ”

In the above country guidance determination promulgated on DATE , the ORG considered the case of a GPE , ORG , from GPE in the north of GPE . He had experienced problems with the NORP and the Sri NORP authorities and fled GPE on DATE but had been refused asylum in GPE by the Secretary of ORG . Since the case had been identified as a country guidance determination , the ORG heard evidence from a number of experts on the situation in GPE and the treatment of NORP there . It also considered the UNCHR Position Paper ( see paragraphs CARDINAL–CARDINAL below ) and considered evidence on LOC treatment of returned failed asylum seekers at FAC , including a series of letters from ORG in GPE and a report of ORG ( see paragraphs PERSON and CARDINAL below ) . In dismissing ORG ’s appeal on asylum grounds but allowing it on the basis of LAW , the ORG gave the following guidance in the headnote to its determination :

“ ( CARDINAL ) NORP are not per se at risk of serious harm from the Sri NORP authorities in GPE . A number of factors may increase the risk , including but not limited to : a previous record as a suspected or actual ORG 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 GPE or other centre of NORP fundraising ; illegal departure from GPE ; lack of an ORG card or other documentation ; having made an asylum claim abroad ; having relatives in the ORG . 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 .

( CARDINAL ) NORP If a person is actively wanted by the police and/or named on a Watched or Wanted list held at FAC , they may be at risk of detention at the airport .

( CARDINAL ) Otherwise , the majority of returning failed asylum seekers are processed relatively quickly and with no difficulty beyond some possible harassment .

( CARDINAL ) NORP in GPE 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 ORG where they are staying . In general , the risk again is no more than harassment and should not cause any lasting difficulty , but NORP who have recently returned to GPE and have not yet renewed their GPE identity documents will be subject to more investigation and the factors listed above may then come into play .

( CARDINAL ) Returning NORP should be able to establish the fact of their recent return during the short period necessary for new identity documents to be procured .

( CARDINAL ) A person who can not establish that he is at real risk of persecution in his home area is not a refugee ; but his appeal may succeed under LAW ORG , 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 .

( CARDINAL ) The weight to be given to expert evidence ( individual or country ) and country background evidence is dependent upon the quality of the raw data from which it is drawn and the quality of the filtering process to which that data has been subjected . Sources should be given whenever possible .

( CARDINAL) The determinations about GPE listed in para CARDINAL [ of the determination – see below ] are replaced as country guidance by this determination . They continue to be reported cases . ”

In its consideration of the expert evidence before it , the ORG heard argument on the correct approach to ORG ( see paragraphs DATE below ) . It stated that :

“ CARDINAL . The ORG report was very topical and up to date . We agree with the general submission made by [ counsel for the Secretary of ORG ] that the protection agenda of the ORG is a wider CARDINAL than the mere assessment of refugee or subsidiary protection status . However , these reports are prepared by persons with direct experience of the core issues involved and thus we accord them substantive weight in this case . ”

The ORG then considered each of the CARDINAL risk factors that had been identified by the appellant , ORG , and which it had summarised in its headnote . In respect of NORP ethnicity , the ORG recalled that NORP comprised PERCENT of the population of GPE , which called for caution when assessing risk in GPE , especially GPE . There was a need for knowledge of where applicants came from in GPE and their involvement or lack of it with GPE organisations , whether voluntary , involuntary or otherwise . It found that there were different risk profiles for sub - groups of those with NORP ethnicity ( GPE NORP coming from the north or east compared with “ NORP ” , “ Plantation ” or “ LOC NORP ) . Age and gender had to be taken into account and young male NORP in GPE , particularly in GPE , were at a relatively higher level of risk . There was a higher propensity on the part of the GPE authorities to target young men and women from the north and the east in a period of virtual civil war .

In respect of a previous record as a suspected or actual ORG member or supporter , it was of vital importance to establish an applicant ’s profile and the credibility of his background in some depth . If he or she was not credible as to his claim to come from the north or east , which left a situation where he could be a GPE from GPE with little or no involvement with the NORP , there could be little risk .

A previous criminal record and/or arrest warrant was , in the ORG ’s view , a significant factor that needed to be taken into account in the assessment of the totality of the risk but did not mean , of itself , that the applicant had a well - founded fear of persecution or other significant harm on return to GPE for that reason alone . The issue was to establish the credibility of the criminal record , or an arrest warrant , and decide whether it was reasonably likely to exist in respect of the applicant .

Those who had jumped bail or absconded from police custody , the ORG noted :

“ We agree with the logic that those who have been released after going to court and released from custody on formal bail are reasonably likely , on the evidence , to be not only recorded on the police records as bail jumpers but obviously on the court records as well . Thus we would identify those in the situation such as this appellant who have been found to have been to court in GPE , and subsequently released on formal bail , as having a profile that could place them at a higher level of risk of being identified from police computers at the airport . Their treatment thereafter will of course depend upon the basis that they were detained in the first place . It is important to note that we did not have before us any information as to the treatment of bail jumpers from the ordinary criminal justice system , and there may be many of them , when they again come to the attention of the authorities , be they GPE or NORP . We had no evidence that NORP bail jumpers are treated differently from NORP ones . Clearly punishment for jumping bail will not make someone a refugee . As we have said , the risk of detention and maltreatment will depend on the profile of the individual applicant . ”

For those who had not been brought to court and had possibly been released from detention after payment of a bribe , much would depend on the evidence relating to the formality of the detention . If the detention was informal and there were no records of a bribe , the risk level would be likely to be below that of a real risk . On this risk factor , the ORG concluded :

“ While we would agree that there may well be situations where NORP , with little or no profile related to the NORP , or other ‘ GPE groups , could be briefly detained and harassed , as no doubt happens in round ups in GPE and elsewhere , we consider it illogical to assume that an escapee , from GPE government detention , or a bail jumper from the GPE court system , would be merely ‘ harassed’ given the climate of torture with impunity that is repeatedly confirmed as existent in the background material from all sources . We consider , ( as we think it does in the appellant ’s particular case ) , that the totality of the evidence may point to a real risk , in some cases , of persecution or really serious harm when a recorded escapee or bail jumper is discovered , on return to GPE . ”

When an applicant had signed a confession , this could be a significant risk factor and the ORG noted expert evidence to the effect that many NORP were released after signing statements made in NORP that they often did not understand . The factor had to be considered in the totality of the risk . Equally , when an applicant had refused requests by the security services to become an informer against the NORP , there was a higher risk that they would be assumed to be a collaborator of the NORP but such evidence had to be taken into account with the totality of the evidence and merely establishing that an applicant had refused to become an informer would not be in every case the basis for a valid asylum claim on its own .

On the risk arising from the presence of scarring on an applicant , the ORG stated :

“ CARDINAL . The background evidence on the issue of scarring has fluctuated . Up until the time of the ceasefire it was generally accepted as something which the Sri NORP authorities noted and took into account both at the airport and on detention and in strip searches of suspected ORG supporters . Their perception that it may indicate training by the ORG , or participation in active warfare , was self - evident , and simply was ‘ good’ policing , as appeared to be suggested by ORG in his discussions with PERSON [ one of the experts on GPE from whom the ORG heard evidence ] . On the same logic it was also valid to conclude that the impact of scarring was of far less interest during DATE while the ceasefire agreement was having some effective impact . The evidence that was provided in this case , including that from PERSON following his discussions with the Inspector General of Police ( paragraph CARDINAL of his report ) , the ORG [ ORG ] letter of DATE , and the ORG [ GPE and ORG on GPE ] all indicate that scarring may again be relevant . We agree with the comments in PERSON report , that the issue of scarring was considered by the police to be a very serious indicator of whether a GPE might have been involved in the LTTE . However , on the evidence now before us we consider that the scarring issue should be one that only has significance when there are other factors that would bring an applicant to the attention of the authorities , either at the airport or subsequently in GPE , such as being wanted on an outstanding arrest warrant or a lack of identity . We therefore agree with the ORG remarks that it may be a relevant , but not an overriding , factor . Thus , whilst the presence of scarring may promote interest in a young GPE under investigation by the GPE authorities , we do not consider that , merely because a young GPE has scars , he will automatically be ill - treated in detention . ”

In respect of the risk arising from return from GPE or another centre of NORP activity or fund - raising , the ORG heard evidence from ORG activities and fund - raising in GPE . It concluded that this factor was highly case - specific and any applicant would need to show the extent to which ORG in GPE was aware of his activities and was thus likely to have passed the information on to GPE when the applicant was being deported or removed .

Illegal departure from GPE did not of necessity establish a well founded fear of persecution or serious harm , although in the “ heightened level of insecurity ” in GPE it would add to the risk profile . Similarly , given the number of “ cordon and search ” operations by ORG , the lack of a valid identity card could contribute towards an increased level of risk . In the ORG ’s view , it had to be coupled with other risk factors for those of NORP ethnicity but it was a contributing factor . An applicant would need to show why he would be at continuing risk and that he could not reasonably be expected to obtain a new identity card .

In respect of the risk factor of having made an asylum claim abroad , the ORG relied , inter alia , on a letter dated DATE from ORG in GPE ( see also paragraphs CARDINAL–CARDINAL below ) which had stated that lists of failed asylum seekers could form part of search operations in GPE ( at DATE and CARDINAL of the determination ) . The ORG found that it was a reasonable inference that application forms for replacement passports and travel documents might alert ORG in GPE and that information could be passed on . However , the ORG did not consider having made a failed asylum claim abroad to be an issue that alone would place a returnee at real risk on return . It would be a contributing factor that would need other , perhaps more compelling factors before a real risk could be established .

The ORG considered that the fact of having relatives in the ORG was a logical factor but needed to be taking into account with the totality of other evidence and the profile of other family members . On its own , without established and credible evidence of the details of the other family members and their known role or involvement with the NORP , it would be of limited weight . When assessing those who have relatives who were members of the NORP , it was not only important to consider the relationship , and the involvement of the relative but whether , and to what extent , knowledge of the relative ’s activities were likely to have been known to the security forces in GPE . This would vary depending on the relative ’s profile and whether or not he or she had been previously detained . The question of how the authorities would know that an individual was so related might also be of concern .

In its conclusion on the risk profile for NORP , the ORG stated :

“ CARDINAL . Our assessment of the various risk factors above has highlighted that each case must be determined on its own facts . It may be that in some credible cases CARDINAL of these individual risk factors on its own will establish a real risk of persecution or serious harm on return by the Sri NORP authorities for GPE NORP who are failed asylum seekers from GPE . For those with a lower profile , assessed on one or a combination of the risk factors we have noted however , such as this appellant , their specific profiles must be assessed in each situation and set against the above non - exhaustive and non - conclusive , set of risk factors and the volatile country situation . As can be noted , several factors , such as being subject to an outstanding arrest warrant , or a proven bail jumper from a formal bail hearing may establish a much higher level of propensity to risk than various other factors . In this situation therefore , the assessment exercise is a much larger and more detailed one than may have been the situation up to DATE and certainly during the period of the cease fire agreement ( ‘ CFA’ ) . The current worsening situation in GPE requires serious consideration of all of the above factors , a review of up to date country of origin information set against the very carefully assessed profile of the appellant . ”

In addressing the general situation in GPE at the time and the possible of relocation of NORP from the north or east to GPE , the ORG stated :

“ CARDINAL . It has been accepted during the course of this determination that the general security situation in GPE has deteriorated following the effective breakdown of the ceasefire and the increase in terrorist activity by the LTTE . That has resulted in increased vigilance on the part of the Sri NORP authorities and with it a greater scope for human rights abuses and persecution .

When assessing the risk to an individual it should be borne in mind that much of the background material about GPE , and the increase in violent activity , relates to the north and east . There are particular problems in the east because of the defection of the GPE faction from ORG ranks . This determination does not suggest that it would in every case be unsafe to expect a returning GPE to return to his or her home area in the north or the east . Rather it looks at the position in GPE whether that be for a GPE who was from GPE in the first place , or a person who could relocate there .

NORP make up PERCENT of the population of GPE . Despite evidence of some forms of discrimination , the evidence does not show they face serious hardships merely because they are NORP . As a result , other considerations apart and subject to individual assessment of each applicant ’s specific case , it can not be argued that , even if he faces serious harm in his home area , as a general presumption it is unduly harsh to expect a GPE to relocate to GPE , or that it would be a breach of LAW to expect him or her to do so , or that doing so would put him or her at real risk of serious harm entitling them to humanitarian protection . ”

Having reiterated that the list of factors was “ not a checklist nor is it intended to be exhaustive ” and that the factors should be considered individually and cumulatively ( at paragraph CARDINAL of the determination ) , the ORG again summarised the factors it had considered . It had heard evidence on procedures at GPE airport , including the series of letters from ORG in GPE ( see paragraphs CARDINAL–CARDINAL below ) , and the counsel for the Secretary of ORG had acknowledged there was no dispute that records were kept at the airport and that interviews were conducted there ( at paragraph CARDINAL of the determination ) . In its summary of its conclusions , the ORG therefore added :

“ CARDINAL . When examining the risk factors it is of course necessary to also consider the likelihood of an appellant being either apprehended at the airport or subsequently within GPE . We have referred earlier to the Wanted and Watched lists held at the airport and concluded that those who are actively wanted by the police or who are on a watch list for a significant offence may be at risk of being detained at the airport . Otherwise the strong preponderance of the evidence is that the majority of returning failed asylum seekers are processed relatively quickly and with no difficulty beyond some possible harassment . ”

On the facts of ORG ’s case , the ORG noted that his credibility had been accepted , in particular that he was a “ bail - jumper ” from court - directed bail in GPE and that on return to GPE airport he would have been at real risk of being investigated . That investigation by the GPE authorities would lead , in ORG ’s particular circumstances , to the real risk of his being seriously maltreated while in detention and thus the ORG allowed his appeal on LAW grounds .

In its previous determination in ORG ( Risk DATE release ) GPE [ DATE ] ORG CARDINAL , the ORG had held first that paying a bribe did not itself amount to an assisted escape from custody which would make the applicant of interest to the authorities . Second , it had held that scarring was a factor that should not be assessed in isolation but in light of the general security situation and the processing of returnees at FAC . The ORG in ORG confirmed both these rulings .

In ORG , allowed an appeal by the Secretary of ORG against the decision of the Adjudicator who had found that the respondent , a GPE Tamil from western GPE , would be at risk from the ORG if returned and that there would not be sufficient protection by the Sri NORP authorities . He and his cousin had been coerced by the NORP into transporting goods by sea for them and arrested and interrogated under torture by the Sri NORP navy . He had told them where the goods were and was released after payment of a bribe . The ORG sought the applicant and his cousin and killed his cousin . The respondent was again arrested on suspicion of NORP involvement and again released after paying a bribe , at which point he fled to GPE . It was accepted on appeal that given the ceasefire in place at the material time , there was no risk to the respondent from the GPE authorities . As to the risk to him from the ORG and the sufficiency of protection offered by the Sri NORP authorities , ORG found that he could safely and reasonably relocate from his home area of GPE , western GPE to GPE . The ORG stated :

“ DATE . As we have already observed , those whom the ORG has on the objective evidence targeted in GPE since the ceasefire have all been high profile opposition activists , or those whom they would see are renegades or traitors to the LTTE . Whether it could be successfully argued that even those of so high a profile would not be provided with a sufficiency of protection in GPE in the PERSON sense [ PERSON v. the Secretary of ORG for ORG – see paragraph DATE below ] , may be doubted , but what seems to us quite clear on the background evidence is that there is no arguable basis for saying that the GPE state does not provide a sufficiency of protection to the generality of NORP having a localised fear of the NORP in their home area who do not reach a similar high profile .

We can not , of course , say that the safety of the respondent is guaranteed if he is now returned to GPE , but there is simply no objective evidence to support a claim that ethnic NORP with his characteristics are in fact currently at risk from the NORP in GPE , or that , if they are , it is a risk in respect of which the GPE state does not provide a sufficiency of protection applying the ratio in PERSON . ”

In this country guidance determination , the ORG considered , inter alia , the correct approach to reports by the ORG . It observed :

“ CARDINAL . The extensive reliance upon ORG material makes a few observations germane . The value of the ORG material is first that where it has observers on the ground , it is in a good position to provide first hand information as to what in fact is happening . The process then whereby its observations of what is happening become position papers or recommendations is likely to increase the objectivity and soundness of its observations in that respect . It has a special role in relation to LAW .

But their comments have their limitations and these need equally to be understood . The ORG often speaks of inhibitions on the return , usually forced , of failed asylum seekers , who have been rejected after a proper consideration of their claims . It follows that the ORG is not then commenting on the return of refugees at all ; it is acknowledging that they would not face persecution for a ORG reason and it is going beyond its special remit under LAW . This is not a question of picking up on loose language . The ORG is perfectly capable of using language which shows that it is or is not dealing with the risk of persecution for a Convention reason , and sometimes does so . These are considered papers after all .

But the assessment of whether someone can be returned in those circumstances is CARDINAL which has to be treated with real care , if it is sought to apply it to non Refugee Convention international obligations , especially ORG . The measure which the ORG uses is unclear ; indeed , realistically , it may be using no particular measure . Instead , it is using its own language to convey its own sense of the severity of the problem , the degree of risk faced and the quality of the evidence which it has to underpin its assessment . It is often guarded and cautious rather than assertive because of the frailties of its knowledge and the variability of the circumstances .

This is not to advocate an unduly nuanced reading of its material , let alone an unduly legalistic reading . It is to require that the material be read for what it actually conveys about the level of risk , of what treatment and of what severity and with what certainty as to the available evidence . But there may be times when a lack of information or evidence permits or requires inferences to be drawn as to its significance , which is for the decision - maker to draw . There is often other relevant material as well .

NORP ORG ’s language is not framed by reference to the ORG and to the high threshold of LAW as elaborated in the jurisprudence of ORG and of GPE . That is not a criticism – it is not an expert legal adviser to the GPE courts and couches its papers in its own language . So its more general humanitarian assessments of international protection needs should be read with care , so as to avoid giving them an authority in relation to GPE obligations under the ORG which they do not claim . They may give part of the picture , but the language and threshold of their assessments show that the ORG quite often adopts a standard which is not that of GPE ECHR obligations .

NORP ORG papers are often not the only ones which ORG or the ORG has to consider . Other organisations may have first - hand sources and differ from ORG ; experts may bring a further perspective . A considered ORG paper is therefore entitled to weight but may well not be decisive . ”

In this case , ORG considered the asylum claim of a GPE citizen of GPE on the ground , among others , that he feared persecution in GPE by “ skinheads ” , against whom the NORP police failed to provide adequate protection for GPE . In dismissing the applicant ’s appeal , ORG held that in determining whether there was sufficient protection against persecution in the person ’s country of origin it was sufficient that there was in that country a system of criminal law which made violent attacks by the persecutors punishable and a reasonable willingness to enforce that law on the part of the law enforcement agencies .

Applications for permission to apply for judicial review were lodged by CARDINAL NORP who sought to challenge the Secretary of ORG ’s decision either to reject representations made by them as not amounting to a fresh asylum claim or , in CARDINAL case , to certify that his claim was clearly unfounded ( see paragraph CARDINAL above ) . The applications were considered in ORG by Mr Justice PERSON on DATE in the light of the exchange of letters between ORG of the Government set out at paragraph CARDINAL above . He adjourned CARDINAL application , granted permission in CARDINAL cases and refused permission in the remaining CARDINAL . Before considering the merits of the individual cases before him , Mr Justice PERSON considered the risk factors set out by the ORG in ORG . He stated :

“ CARDINAL . Although those have been described as risk factors , they obviously vary in their significance . For example , NORP ethnicity is obviously a highly relevant consideration , since the ORG is a GPE organisation and the battle is by the ORG on behalf of the NORP who seek specific objectives as NORP . However , NORP ethnicity by itself does not create a real risk of ill - treatment . Accordingly , some of these so - called risk factors are in reality , as it seems to me , background ( as it has been described ) factors ; that is to say they do not in themselves indicate a real risk , but they are matters which , if there is a factor which does give rise to a real risk that the individual will be suspected of involvement in the ORG , adds to the significance of that . Thus NORP ethnicity , return from GPE , illegal departure from GPE , lack of ID card or other documentation ( unless it is such a lack beyond the period that the individual would be expected to take to obtain an ORG card after return ) and having made an asylum claim abroad , all are no doubt factors which may be held against an individual , but none of them , as far as I can see in themselves , or even cumulatively , would create a real risk . However , it is obvious that a previous record as a suspected or actual member or supporter , provided that it was at a level which would mean that the authorities would retain an interest would be likely to create a risk . I say that because it was made clear in ORG itself that an individual who had a past low - level involvement which might have led to some detention , would not necessarily be regarded as a real risk so far as ill - treatment was concerned , although clearly the circumstances of the previous record might point in a different direction . A previous criminal record and an outstanding arrest warrant clearly are highly material and clearly capable , I would have thought , of producing a real risk .

Bail jumping and/or escaping from custody , again on the face of it are highly material . But it depends , as the ORG [ the ORG ] itself indicated , on what is covered by escaping from custody . Frequently custody was brought to an end by the payment of a bribe . That is commonplace ( or was commonplace , perhaps still is ) in the GPE situation . Generally release on the payment of a bribe without more would not indicate that there was an ongoing risk because the release would be likely to be recorded as a release because there was nothing further to be held against the individual . It is hardly likely that whoever took the bribe would stick his neck out by effectively admitting that there should not have been a release but for the bribe , although it might of course be different if there had been a release on formal bail . Police have the power to grant bail , but it can be done , it was said , either formally or informally . Frequently perhaps what is talked of as release on bail is no more than release by the police officer in question with some conditions apparently attached . Again one would have to look at the individual circumstances to see whether the nature of the release was such as to lead to a risk that he would still be regarded as someone under suspicion .

A signed confession or similar document obviously would be an important consideration .

Having been asked by the security forces to become an informer can be of some importance . It might indicate that the individual was regarded as someone who was indeed involved in the ORG but was prepared , to save his own skin or for whatever reason , to provide information to the authorities . What would happen on occasions DATE and indeed CARDINAL of the cases , as I shall indicate , contained this element DATE was that the release was on the basis that he would be an informant but in fact he did not carry out his side of the bargain , if that is the right way of putting it . The suggestion is that that failure would mean that he was likely to be recorded as someone who would arouse suspicion .

The ORG indicated that the presence of scarring in itself would not necessarily produce a real risk , but is something that would be added to and confirmatory of another factor which did give rise to a risk . It was generally speaking to be regarded as a confirmatory rather than a free - standing risk element .

Finally having relatives in the NORP is something that one can well understand might produce suspicion .

The test therefore , as I see it , is whether there are factors in an individual case , CARDINAL or more , which might indicate that authorities would regard the individual as someone who may well have been involved with the ORG in a sufficiently significant fashion to warrant his detention or interrogation . If interrogation and detention are likely , then , in the context of the approach of the authorities in GPE , torture would be a real risk and thus a breach of LAW might occur . It is plain from ORG and it is clear overall that a blanket ban on return to GPE simply because an individual is a GPE can not be supported . If ORG is approaching it in that way , then in my view it should not be and it is not in accordance with what is required by the Convention .

The authorities in this country , the courts and the ORG , give very careful consideration to whether it is indeed appropriate to accept that a return of a GPE to GPE can be made because there is no real risk that he will suffer any form of relevant ill - treatment . This country has not accepted the blanket approach which is advocated to an extent by the ORG , albeit there is no question but that its factual conclusions on matters where investigations have been carried out should be given weight . ”

Council Directive CARDINAL/CARDINAL/EC of DATE ( on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted ) has the objective , inter alia , of ensuring ORG Member GPE apply common criteria for the identification of persons genuinely in need of international protection ( recital CARDINAL of the preamble ) . In addition to regulating refugee status , it makes provision for granting subsidiary protection status . Article CARDINAL(e ) defines a person eligible for subsidiary protection status as someone who would face a real risk of suffering serious harm if returned to his or her country of origin . Serious harm is defined in DATE as consisting of : ( a ) death penalty or execution ; ( b ) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin ; or ( c ) serious and individual threat to a civilian ’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict .

On DATE , ORG of ORG ( Afdeling Bestuursrechtspraak van de Raad van State ) , when considering the case of PERSON and ORG v. ORG ( the Deputy Minister of ORG ) , lodged a reference for a preliminary ruling with ORG of ORG asking , inter alia , whether Article PERSON ) of the Directive offered supplementary or other protection to LAW .

GPE secured independence from GPE in DATE . PERSON information varies but its population is MONEY . The majority are NORP ( MONEY ) . Significant minorities include ORG ( NORP , MONEY ) ; NORP ( MONEY ) ; and GPE NORP ( MONEY ) . The majority of NORP live in the north and east of the country but a significant minority live outside those regions . GPE has a population of CARDINAL and CARDINAL NORP and CARDINAL NORP live there ( see GPE and ORG on GPE , DATE ( “ the DATE COI Report ” ) , at paragraphs CARDINAL , CARDINAL , CARDINAL , and CARDINAL with further references ) .

The internal conflict in GPE began DATE and has continued intermittently ever since . The conflict is largely between the ORG , who seek independence for NORP , and Government forces . A ceasefire was signed between the ORG and the NORP in DATE and a peace process started . In DATE , after divisions appeared with the ORG , the ceasefire came under increasing pressure . The most serious threat to the peace process was the assassination in DATE of PERSON , the Sri NORP Minister of ORG , after which violence in the country escalated and there were renewed clashes between Government forces and the NORP ( see the DATE ORG at paragraphs CARDINAL.CARDINAL–CARDINAL.CARDINAL with further references ) .

Mr Kadirgamar ’s assassination prompted ORG to declare a state of emergency and introduce Emergency Regulations which gave the Government , the armed forces and law enforcement agencies broad counter - terrorism powers , including special powers of arrest and detention DATE ( see the DATE ORG report at paragraphs CARDINAL.CARDINAL–CARDINAL.CARDINAL and CARDINAL.CARDINAL–CARDINAL.CARDINAL with further references ) . The regulations are reinforced by further such powers provided for in the Prevention of Terrorism Act , which was reinstated in DATE ( see , inter alia , ORG website story of DATE and ORG on ORG , quoted at CARDINAL and CARDINAL of the ORG respectively ) . Young Tamil men who are suspected of being NORP members or supporters appear to be the primary target of arrests ( see , inter alia , paragraph CARDINAL of GPE ORG on GPE , set out at paragraph CARDINAL below ) . ORG have been regularly extended , most recently on DATE ( see the same report at p. CARDINAL ) .

On DATE , the Government gave notice of their intention to withdraw from the ceasefire agreement . The withdrawal took effect on DATE ( DATE COI Report at paragraphs PERSON . ) .

Operational guidance notes ( ORG ) are prepared by ORG of ORG . They provide a brief summary of the general , political and human rights situation in the country and describe common types of claim . They aim to provide clear guidance on whether the main types of claim are likely to justify the grant of asylum , humanitarian protection or discretionary leave .

The ORG on GPE of CARDINAL DATE ( which updated and replaced the previous note of CARDINAL DATE , the conclusions of which were virtually identical ) contained the following conclusions on the main kinds of asylum , human rights and humanitarian protection claims made by those entitled to reside in GPE :

“ [ At . CARDINAL on claims made by those fearing reprisals from the NORP ] We do not accept ORG ’s position that there is no internal flight alternative for individuals fleeing targeted violence and human rights abuses by the ORG due to difficulties in travel because of the reinstatement of checkpoints and because of the inability of the authorities to provide ‘ assured protection’ given the reach of the NORP . ORG ’s reliance on the concept of ‘ assured protection’ is not a fundamental requirement of ORG . In referring to ‘ assured protection’ , ORG are using a higher standard than the sufficiency of protection standard required by LAW ... Moreover , asylum and human rights claims are not decided on the basis of a general approach , they are based on the circumstances of the particular individual and the specific risk to that individual . It is important that case owners give individual consideration to whether the applicant has a well - founded fear of persecution for a convention reason or are otherwise vulnerable that they may engage our obligations under the ORG . Applicants who fear persecution at the hands of the ORG in ORG dominated areas are able to relocate to GPE , or other Government controlled areas and it would not normally be found to be unduly harsh for claimants to relocate in this way . Similarly , the Government is willing to offer to protection to [ sic ] those who have relocated from ORG controlled areas and who still fear reprisals from the NORP .

[ At ORG on claims made by those fearing persecution by the Sri Lankan authorities ] Following the announcement of the cease - fire in DATE , the Sri NORP authorities de - proscribed the NORP and suspended arrests made under LAW ( PTA ) . The emergency regulations imposed in DATE which continue to be in place allow for the arrest of individuals by members of the armed forces and those detained may be held for DATE . Young NORP men who are suspected of being NORP members or supporters appear to be the primary target of arrests .

However , most are reportedly released quickly and it can therefore still be said that generally the authorities in GPE are not concerned with those individuals with past low - level support for the LTTE . Claims under this category are therefore likely to be clearly unfounded and fall to be certified as such .

CARDINAL NORP Those individuals who may be of continuing interest to the authorities would be those wanted for serious offences . These cases will be exceptional , and will normally be high - profile members of the NORP who are still active and influential , and wanted by the authorities . Such individuals may face prosecution on return , although there is no evidence to suggest that they would not be treated fairly and properly under GPE law . Claims made under this category are therefore not likely to lead to a grant of asylum or ORG but taking into account the continuing interest of the authorities in those of high profile , and the introduction of the emergency regulations such claims can not be considered to be clearly unfounded .

CARDINAL.CARDINAL.CARDINAL There can not be said to be a general sufficiency of protection available to those applicants who express fear of state officials after having made complaints to the Sri NORP authorities with regard to , for example , the use of torture . However , internal relocation to NORP areas may be an option where , in the particular circumstances of the applicant ’s case , it is not considered unduly harsh for the victim to exercise this . The grant of asylum or ORG is unlikely therefore to be appropriate where there is an option of internal relocation . Such claims should only be certified as clearly unfounded if internal relocation is clearly an option . ”

The ORG also found that with the introduction of LAW in DATE , round ups and arrests of NORP in “ cordon and search operations ” had taken place . Citing a report of ORG ( ICRC ) , it stated that most of those detained , generally young NORP males , were taken into custody because they were unable to produce identification or explain the reason for being in a particular area . It also quoted the website “ NORP ” which had reported a number of large scale arrests DATE of NORP civilians in PERSON and GPE city who were taken into custody on account of failure to prove identity or provide reasons for their stay in the location . Finally , the ORG stated that according to a letter dated DATE from ORG in GPE , the operations did appear to target those in casual employment or with temporary accommodation , but whilst a proportion of those detained did end up in longer term detention , most were released quickly ( at a paragraph CARDINAL.CARDINAL.CARDINAL of the ORG ) .

The DATE COI Report ( at paragraphs CARDINAL – CARDINAL ) , set out a number of extracts from a series of letters from ORG in GPE , which addressed the treatment of failed asylum seekers . At paragraph CARDINAL , the COI Report included an excerpt from a ORG letter of DATE , which noted :

“ The BHC Risk Assessment Officer has recently visited the headquarters of ORG [ ORG ] in GPE , and the ALO [ ORG ] works closely with ORG at FAC . Both RAO and ALO recall that they have never seen any ORG officers use a computer , and comment that neither their ORG nor airport offices has computers installed . The ORG added that ORG officers at the airport record details in a notebook , whilst the ORG stated that officers in GPE had typewriters on their desks . ”

The same paragraph of ORG noted that in a letter of CARDINAL DATE , ORG had previously reported :

“ The Sri NORP authorities have a good IT system to track arrivals and departures at the main airport and are able to track , in most cases , whether an individual is in the country or not . ”

According to ORG ( at CARDINAL and CARDINAL ) , in a letter dated DATE ORG stated :

“ We have spoken to ORG locally about returns . They say that to their knowledge most returns are detained briefly and then released to their families . Our ORG has contacted the NORP , NORP and ORG here , to ask about their experiences with returns . All of their experiences are similar . In DATE [ DATE ] a charter plane returned CARDINAL failed asylum seekers from GPE . ORG ( ORG ) have told us that these were processed by them ‘ in QUANTITY . In general , ORG and ORG are informed in advance of the passenger ’s arrival . The passenger is handed over to ORG who briefly interview them and then hand them to ORG . In most cases a record is kept by both of the returnees arrival and they are then allowed to proceed . Usually family are at the airport to meet them . In a few cases ORG have detained people where there was an existing warrant for their arrest when they left GPE . DII ( ORG ) may also have an interest in these individuals and keep records on them . There is no reason to think that they have any information regarding asylum claims in the GPE or elsewhere . There does not appear to be any involvement in the process by ORG .

The role of scarring is extremely difficult to assess , I have not found any detailed reports , but anecdotal evidence is that it can play a part in rousing suspicion . The key issue is not what triggers suspicion , but how suspects are treated . Membership of the NORP and fundraising for the organisation are no longer criminal offences in GPE ( although they are in the GPE ) so even if the authorities acted on their suspicion GPE law gives them limited powers to act . Unarmed members of the NORP are permitted to operate in government areas under the DATE ceasefire agreement . ”

Paragraphs CARDINAL and CARDINAL of the ORG report then quote ORG as stating in its letter of CARDINAL DATE that :

“ There is strong anecdotal evidence that scarring has been used in the past to identify suspects . In my own conversations with the police and in the media the authorities have openly referred to physical examinations being used to identify whether suspects have undergone military style training . A GPE based member of staff who was present during the processing of CARDINAL recent returns at GPE airport on CARDINAL/CARDINAL and CARDINAL/CARDINAL [ DATE ] reported however that no such examinations took place , and that the returnees , both ethnic NORP from the north of GPE , were able to make onward journeys with little delay . His observations support more recent claims from contacts in government ministries that this practice has either ceased or is used less frequently . At the very least it appears to only take place when there is another reason to suspect the individual rather than a routine measure for immigration returnees .

Our own experience of the return of failed asylum seekers and the shared information of other missions , particularly the NORP , and ORG is quite clear . As we have reported earlier [ DATE ] the vast majority are questioned for a short period of time to establish identity and possibly on security issues and then released . Normally only when there is an outstanding arrest warrant are individuals detained for longer periods . ”

Finally , at paragraphs CARDINAL.CARDINAL–CARDINAL.CARDINAL the COI Report contained excerpts from the letter of DATE which read as follows :

“ The Government of GPE decision to abrogate the ceasefire agreement will reduce further the provision [ of ] information regarding the treatment of returnees . Ceasefire monitors from GPE and ORG ) will have no further role and will be unable to provide any information regarding returnees .

ORG ) have advised ORG that whilst they monitor the persons who return from the GPE under LAW VARP ) for DATE , they do not monitor those who are forcibly returned . I was advised that even amongst the VARP returnees there were CARDINAL cases in DATE where individuals have been arrested and detained . The first was a young NORP male from GPE who was going through a reintegration programme in GPE . DATE after his return , he was stopped at a police checkpoint and detained , as he could provide no evidence of family in the capital . He was held at GPE prison for DATE before release , but is now back in the reintegration programme . The CARDINALnd case also involved a NORP male who was in the reintegration programme in GPE . The circumstances of his arrest were somewhat different in that he had travelled to GPE on forged documentation and was apprehended by ORG on his return to GPE and detained . It could therefore be argued that there might have indeed been justification for this .

ORG have also become involved with returnees who have forcibly been removed from the GPE , providing post - arrival assistance . Ostensibly , this is to provide travel assistance to a chosen address . At time of writing ORG had been notified of CARDINAL potential removals under this arrangement , of which they received CARDINAL returnees . Whilst a majority of the ones that did not arrive undoubtedly earned TIME reprieves in the GPE by one means or another , ORG could not be PERCENT certain that some were not detained on arrival at FAC . ORG are under instructions not to approach these returnees until they have gone through all of the arrival procedures . ORG has recently installed a Migration Delivery Officer at ORG in GPE . His role will include liaison between the GPE ORG , ORG and ORG , and will assist in the monitoring of such persons following their removal from the GPE . ”

According to information provided to ORG , of above CARDINAL returns , CARDINAL were cancelled for a number of reasons such as judicial review proceedings being lodged , injunctions being granted by ORG and this ORG making indications under LAW . CARDINAL of the returnees were successfully met outside the airport by ORG . In the remaining CARDINAL cases , removals were made but the individuals concerned did not make themselves known to the ORG officer on arrival in GPE . The Government had established that CARDINAL of the CARDINAL was in the GPE and they continued to make enquiries into the whereabouts of the other individual concerned .

On DATE , the ORG High Commissioner for Refugees published the above paper , observing that there had been several major developments in the country which fundamentally affected the international protection needs of individuals from GPE who sought , or who had sought , asylum abroad . After surveying the escalation in fighting between Government forces and the ORG and its impact on the civilian population , the paper turned to the human rights situation . NORP from the north and east were at risk of targeted violations of their human rights from all parties to the armed conflict , including harassment , intimidation , arrest , detention , torture , abduction and killing at the hands of government forces , the NORP and paramilitary or armed groups . Where an individual sought to escape from the NORP , even if they reached government - controlled areas , this did not necessarily mean that he or she would be able to secure the protection of the authorities given the ORG ’s capacity to track down and target its opponents throughout the country . The position paper also considered the human rights situation for NORP in GPE and stated :

“ CARDINAL . NORP in GPE and its outskirts , where there are large NORP communities , are at heightened risk of security checks , arbitrary personal and house to house searches , harassment , restrictions on freedom of movement , and other forms of abuse since the imposition of new security regulations in DATE .

NORP Under emergency regulations , the police are empowered to register all persons within the jurisdiction of each police station . These regulations , which were enacted during the height of the conflict in DATE , remain in place and require all residents to register with their local police station . Such registration , which is taking place in GPE , enables the police to have accurate information on the ethnicity and location of all inhabitants of GPE .

NORP in GPE are especially vulnerable to abductions , disappearances and killings . Such actions are allegedly conducted by the paramilitary ‘ white vans’ suspected to be associated with the security forces , as well as by the GPE faction and the ORG . According to press reports , CARDINAL NORP were abducted in GPE and its suburbs DATE and DATE , with CARDINAL of these people confirmed released . The whereabouts and fate of the rest remain unknown . Young Tamil professionals including several women , businessmen , as well as NORP political figures and activists with a pro - Tamil stance can be specifically targeted ( footnotes omitted ) . ”

The paper also noted that NORP from the east were also particularly vulnerable to human rights abuses from the parties to the conflict and that NORP from the north and east were vulnerable to the generalised violence there . For the latter , there was protection from generalised violence in government - controlled areas but no protection from the NORP , if they were targeted by it .

ORG recommended that all asylum claims of NORP from the north or east should be favourably considered . Where individual acts of harassment did not in and of themselves constitute persecution , taken together they could cumulatively amount to a serious violation of human rights and therefore be persecutory . Where an individual did not fulfil the refugee criteria under LAW to LAW , a complementary form of protection was to be granted . NORP from GPE were to be recognised as refugees if subjected to targeted violations of human rights by the ORG , the authorities or paramilitary groups . Again , where individual acts of harassment did not in and of themselves constitute persecution , taken together they could cumulatively amount to a serious violation of human rights and therefore be persecutory . A similar recommendation was made for NORP . For NORP , those who were targets of persecution from the NORP or other non - state agents should be accorded recognition as refugees .

DATE . For those asylum seekers from GPE whose claims had previously been examined and had been found not to be in need of international protection , the Position Paper recommended a review of their claims in light of the new circumstances it had described .

After her visit to GPE in DATE , the ORG High Commissioner for Human Rights , PERSON , issued a press statement on DATE in which she noted :

“ GPE has many of the elements needed for a strong national protection system . It has ratified most of the international human rights treaties . It has justiciable human rights guarantees in LAW . It has longstanding democratic and legal traditions . It has had a national human rights commission for DATE . GPE has an active media and benefits from a committed civil society .

However , in the context of the armed conflict and of the emergency measures taken against terrorism , the weakness of the rule of law and prevalence of impunity is alarming . There is a large number of reported killings , abductions and disappearances which remain unresolved . This is particularly worrying in a country that has had a long , traumatic experience of unresolved disappearances and no shortage of recommendations from past ORG on how to safeguard against such violations . While the Government pointed to several initiatives it has taken to address these issues , there has yet to be an adequate and credible public accounting for the vast majority of these incidents . In the absence of more vigorous investigations , prosecutions and convictions , it is hard to see how this will come to an end .

Throughout my discussions , government representatives have insisted that national mechanisms are adequate for the protection of human rights , but require capacity building and further support from the international community . In contrast , people from across a broad political spectrum and from various communities have expressed to me a lack of confidence and trust in the ability of existing relevant institutions to adequately safeguard against the most serious human rights abuses .

In my view the current human rights protection gap in GPE is not solely a question of capacity . While training and international expertise are needed in specific areas , and I understand would be welcomed by the Government , I am convinced that CARDINAL of the major human rights shortcomings in GPE is rooted in the absence of reliable and authoritative information on the credible allegations of human rights abuses . ”

After his visit to GPE on CARDINAL–CARDINAL DATE , ORG on Torture issued a press release ( dated DATE ) in which he concluded :

“ Though the ORG has disagreed , in my opinion the high number of indictments for torture filed by the Attorney ORG , the number of successful fundamental rights cases decided by ORG , as well as the high number of complaints that ORG continues to receive on an almost DATE basis indicates that torture is widely practiced in GPE . Moreover , I observe that this practice is prone to become routine in the context of counter - terrorism operations , in particular by the TID [ ORG ] .

Over the course of my visits to police stations and prisons , I received numerous consistent and credible allegations from detainees who reported that they were ill - treated by the police during inquiries in order to extract confessions , or to obtain information in relation to other criminal offences . Similar allegations were received with respect to the army . Methods reported included beating with various weapons , beating on the soles of the feet ( falaqa ) , blows to the ears ( ‘ ORG ) , positional abuse when handcuffed or bound , suspension in various positions , including strappado , ‘ butchery’ , ‘ reversed butchery’ , and ‘ parrot ’s perch’ ( or dharma chakara ) , burning with metal objects and cigarettes , asphyxiation with plastic bags with chilli pepper or gasoline , and various forms of genital torture . This array of torture finds its fullest manifestation at the ORG detention facility in GPE .

Intimidation of victims by police officers to refrain from making complaints against them was commonly reported , as were allegations of threats of further violence , or threatening to fabricate criminal cases of possession of narcotics or dangerous weapons . Detainees regularly reported that habeas corpus hearings before a magistrate either involved no real opportunity to complain about police torture given that they were often escorted to courts by the very same perpetrators , or that the magistrate did not inquire into whether the suspect was mistreated in custody . Medical examinations were frequently alleged to take place in the presence of the perpetrators , or directed to junior doctors with little experience in documentation of injuries . ”

In its DATE ORG on Human Rights Practices – GPE , dated DATE , ORG observed :

“ The government ’s respect for human rights continued to decline due in part to the escalation of the armed conflict . While ethnic NORP composed PERCENT of the overall population , the overwhelming majority of victims of human rights violations , such as killings and disappearances , were young male NORP . Credible reports cited unlawful killings by government agents , assassinations by unknown perpetrators , politically motivated killings and child soldier recruitment by paramilitary forces associated with the government , disappearances , arbitrary arrests and detention , poor prison conditions , denial of fair public trial , government corruption and lack of transparency , infringement of religious freedom , infringement of freedom of movement , and discrimination against minorities . There were numerous reports that the army , police , and pro - government paramilitary groups participated in armed attacks against civilians and practiced torture , kidnapping , hostage - taking , and extortion with impunity . The situation deteriorated particularly in the government - controlled GPE peninsula . By DATE end extrajudicial killings occurred in GPE nearly on a DATE basis and allegedly perpetrated by military intelligence units or associated paramilitaries . There were few arrests and no prosecutions as a result of these abuses , although a number of older cases continued to make slow progress through the judicial system . Government security forces used the broad DATE emergency regulations to detain civilians arbitrarily , including journalists and members of civil society .

The ORG , which maintained control of large sections of the north , continued to attack civilians and engage in torture and arbitrary arrest and detention ; denied fair , public trials ; arbitrarily interfered with privacy ; denied freedoms of speech , press , and assembly and association ; and forced recruitment , including of children . The NORP was also active in areas it did not control and during DATE carried out CARDINAL politically motivated killing in GPE , a politically motivated suicide attack in GPE , a suicide attack against a government army base near GPE , a bombing of civilian shoppers in a suburb of GPE , and bombings of civilian buses in the south . ”

In the section of the report entitled “ Arrest and Detention ” , ORG noted , inter alia :

“ DATE , in response to CARDINAL NORP bomb attacks in and around GPE , the police conducted random cordon and search operations and arrested CARDINAL NORP in the capital and CARDINAL countrywide . The detained , mostly male NORP civilians were reportedly arrested based solely on their GPE surnames . The vast majority of the detainees were soon released . ORG ordered the government to release the detainees on bail if they were no longer required for questioning . By DATE CARDINAL of the CARDINAL arrestees held in the GPE detention camp were still in custody . ”

The report also documented the arrest of CARDINAL NORP in a lodge in a GPE suburb on DATE after ORG had intervened to prevent the police carrying out such forcible removals in DATE ( see paragraph CARDINAL below ) .

On DATE , ORG published the following “ response to information request ” on the treatment of failed asylum seekers returning to GPE , which provides :

“ In DATE correspondence to ORG , an official at ORG in GPE provided corroborating information [ in reference to the letter from ORG in GPE dated DATE : see paragraphs CARDINAL–CARDINAL above ] on the return of failed asylum seekers to GPE , stating that

[ r]eturnees , if identified to the airlines as such by immigration authorities who are removing them to GPE , have an established process awaiting them upon arrival . First , the Chief Immigration Officer ( arrivals ) documents the arrival of the person , takes a statement , and determines whether the returnee should be granted entry as a GPE national . Next an officer of ORG ( ORG ) documents the arrival and takes a statement . Finally , an officer of ORG ( ORG ) of ORG documents the arrival , checks for outstanding warrants and takes a statement . If there is an outstanding warrant for arrest , the returnee may be arrested . Otherwise , the returnee is free to go .

Persons with previous problems with the authorities

An DATE report published by ORG Asylum Seeker Project ( ORG ) , an NORP non - governmental organization ( NGO ) that ‘ works with asylum seekers in the community’ ( PERSON . ) , similarly notes that persons returning to GPE who have had previous problems with the government of GPE may be detained by the police upon their arrival ( DATE ) . According to the report , persons who have been detained or questioned in the past are more likely to be arrested and , because of the state of emergency and ongoing conflict in the country , ‘ may face further human rights violations , such as torture’ ( Hotham Mission DATE , DATE ) . The report also notes that GPE ORG keeps records on people dating back DATE and , since DATE , has been using a national computerized database ( ibid . ) .

Persons travelling without valid identity documents

Persons who leave GPE using false documents or who enter the country under irregular or suspicious circumstances are reportedly more likely to be singled out and questioned under the country ’s current state of emergency ( ibid . ; see also DATE News DATE ) . The state of emergency reportedly permits the Sri NORP authorities to make arrests without warrant and to detain persons for DATE without trial ( GPE DATE ) . Under LAW of the country ’s Immigrants and Emigrants Act , amended in DATE , persons found guilty of travelling with forged documents may be subject to a fine of CARDINAL Sri Lankan Rupees ( LKR ) [ approximately LAW ( XE.com DATE ) to ORG CARDINAL ( ibid . DATE ) ] and a jail term ranging from DATE ( GPE DATE ) .

Tamil asylum seekers with scars

Cited in an DATE GPE ORG report , a DATE position paper by ORG ) indicates that NORP asylum seekers with scars may be more likely to be questioned and experience ‘ ill - treatment’ by the NORP security forces upon their return to GPE ( DATE , CARDINAL ) . The paper states that

[ the ] ORG maintains its position ... that ‘ NORP asylum seekers with scars , should they be returned to GPE , may be more prone to adverse identification by the security forces and taken for rigorous questioning and potential ill - treatment’ ... Please note that the ORG ’s comments are strictly limited to the risk of adverse identification , rigorous questioning , and potential ill - treatment of returned persons with scars upon their arrival at the airport , not the potential risk of arrest subsequent to the initial interrogation at the airport . ( GPE DATE , CARDINAL )

A DATE letter from ORG in GPE , cited in the DATE GPE report suggests , however , that physical examinations of returnees conducted by the authorities are less common or have ceased altogether . The letter states that

[ t]here is strong anecdotal evidence that scarring has been used in the past to identify suspects . In ... conversations with the police and in the media , the authorities have openly referred to physical examinations being used to identify whether suspects have undergone military style training . ... [ R]ecent claims from contacts in government ministries [ indicate ] that this practice has either ceased or is used less frequently . At the very least , it appears to only take place when there is another reason to suspect the individual rather than [ as part of ] a routine measure for immigration returnees . ( GPE DATE , CARDINAL )

Further information from DATE and DATE on whether NORP asylum seekers with scars would be targeted by GPE security forces upon their return could not be found among the sources consulted by ORG .

Persons with an affiliation to the ORG or other political groups

The DATE Hotham Mission report cites information obtained during consultations with ORG ) , a body of international observers that monitors the ceasefire agreement between the GPE government and ORG ( NORP ) ( SLMM n.d . ) , concerning the return of failed asylum seekers ( CARDINAL ) . The ORG indicates that if a person returning to GPE has any previous affiliation with the NORP , they may be targeted by the police ( ibid . ) . The organization also notes that if a person has previous affiliations to certain individuals or political groups , they may be targeted by the NORP ( ibid . ) . The ORG provides the example of persons who have been members of ORG ( ORG ) , an inactive NORP militant organization ( ORG n.d . ) , who were still being targeted by the NORP in GPE at the time the GPE report was published ( PERSON Mission DATE , DATE ) .

Persons returning from abroad

Persons returning from abroad may also be subject to extortion ( GPE DATE ; PERSON , DATE ) . According to the GPE report , in some instances , returnees have been pressured into paying immigration officials to be able to pass through the airport without incident ( ibid . ) . The report also indicates that , across GPE , wealthy businessmen are being kidnapped for ransom and that ‘ people returning from overseas may be a target , as it will be assumed that they have ORG ( ibid . ) .

A DATE article by ORG , a division of GPE ORG , LAW , provides a listing of ‘ extortion rates of the PERSON According to the article , the ORG charges CARDINAL LKR [ approximately CAD CARDINAL ] per journey to persons returning from abroad ( GPE DATE ) .

Returnees from GPE

In DATE correspondence , an official at ORG in GPE indicated that

‘ [ DATE ... no returnees from GPE have been arrested or experienced negative repercussions at the airport or after exiting the airport grounds in GPE . GPE authorities who have dealt with the returnees have carried out their duties in a professional manner in compliance with international norms.’ ”

In DATE , the President of GPE appointed a ORG to investigate and inquire into CARDINAL incidents of alleged serious violations of human rights , including abductions , disappearances and extra - judicial killings . The President subsequently invited CARDINAL eminent persons to form ORG ( “ the ORG ” ) to observe the Commission ’s work and to comment on the transparency of its investigations and inquiries and their conformity with international norms and standards . By a public statement released on DATE , the ORG announced its decision to terminate its operation in GPE , concluding that the proceedings had fallen far short of the transparency and compliance with basic international norms and standards pertaining to investigations and inquiries .

DATE . In its DATE Annual Report ( “ The State of the World ’s Human Rights ” ) , ORG noted that in DATE the human rights situation in GPE had deteriorated dramatically . Unlawful killings , recruitment of child soldiers , abductions , enforced disappearances and other human rights violations and war crimes had increased . Civilians had been attacked by both sides as fighting escalated between ORG and the ORG . CARDINAL of civilians had been killed and injured and CARDINAL people displaced by DATE . Homes , schools and places of worship had been destroyed . Although both sides maintained they were adhering to the ceasefire agreement , by DATE it had in effect been abandoned . A pattern of enforced disappearances in the north and east re - emerged . There were reports of torture in police custody ; perpetrators continued to benefit from impunity .

In its DATE Annual Report of the same title , ORG further noted that “ DATE was characterized by impunity for violations of international human rights and humanitarian law ” . It stated that “ soaring human rights abuses ” included CARDINAL of enforced disappearances , unlawful killings of humanitarian workers , arbitrary arrests and torture . The report also stated that the Sri NORP police had conducted mass arrests of CARDINAL NORP , allegedly in response to the suicide bombings carried out in GPE on DATE . The arrests said to have been made on arbitrary and discriminatory grounds using sweeping powers granted by ORG . The report also quoted unnamed reports as stating that “ NORP were bundled in bus loads and taken for interrogation ” . The report further alleged that CARDINAL of those arrested , including QUANTITY women , were taken to FAC near GPE and held in poor conditions of detention .

In the above report of DATE , ORG characterised GPE as being in the midst of a human rights crisis and found responsibility lay with both the Government and the LTTE . The report catalogued instances of human rights abuses during the armed conflict , including abductions , disappearances and arbitrary arrests and detentions . It also found there to have been a crackdown on dissent , a culture of impunity for human rights violations and an abuse of LAW introduced by ORG ( see paragraph CARDINAL above ) . It found that ethic NORP had suffered the brunt of abuses but members of the NORP and NORP ethnic groups had also been the victims of Government human rights violations . The report also noted that the Government had detained an undetermined number of people ( reaching into the CARDINAL ) under LAW , with young NORP males being the primary targets . The report also noted that on the Government ’s own figures , NORP constituted the overwhelming majority of those detained . Large - scale arrests were said to be particularly common after attacks attributed to the ORG .

The report also recorded attempts in DATE by the Sri NORP police to evict NORP staying at lodges in and around GPE and to transport them to NORP controlled areas . On DATE , ORG issued an order preventing the police and others from continuing the expulsions or restricting the free movement of NORP in and out of GPE .

In a further report published in DATE , ORG documented CARDINAL instances of disappearances , which it alleged were , for the most part , attributable to Government security forces . The report stated that the vast majority of the victims were ethnic NORP , although NORP and NORP had also been targeted , with individual being targeted primarily because of their alleged membership in or affiliation to the NORP . Young NORP men were among the most frequent targets , though civil society activists were also among those who had disappeared . The report characterised the Government ’s investigation and response to the disappearances as “ grossly inadequate ” .

In a report of DATE , entitled “ GPE Return to War : Limiting the Damage , LOC Report No . CARDINAL ” , ORG commented on the rising ethnic tensions in GPE since the collapse of the ceasefire and in particular observed :

“ With the collapse of the ceasefire , the ORG ’s return to terror attacks and the government ’s counter - terrorism measures , fear and inter - ethnic tension have grown significantly . NORP increasingly see themselves , not the ORG , as the government ’s target . The decision in DATE to evict CARDINAL NORP from hotels and boarding houses in GPE and bus them ‘ home’ to the north and east and to the central hill country was a major blow to confidence . This was followed by mass round - ups of CARDINAL in GPE in DATE after a series of bomb attacks blamed on the ORG . [ the accompanying footnote refers to a Government press release of CARDINAL DATE ] The arrests were disorganised and indiscriminate , affecting many long - established residents of the capital with proper identification . CARDINAL were sent to detention centres in the south . Most were released within DATE , but the experience was a shock . Many felt such ‘ security measures’ were meant to send a message that all NORP pose a security threat and are unwelcome in GPE or NORP areas . NORP from the north and east are particularly vulnerable ( footnotes omitted ) . ”

The report also observed that violations of civil and political rights were widespread , with the majority and worst in the north and east of the country . There were DATE occurrences of political killings and disappearances . Both sides were responsible but additionally on the government side there appeared to be no prosecutions for human rights violations and an unwillingness on the part of the police to investigate killings , disappearances and abductions . Other government institutions were “ equally ineffective ” .

ORG for ORG is a GPE registered charity which provides medical and other rehabilitative support for victims of torture . In a DATE report , submitted by the Government as part of their observations in the present case , and entitled “ Torture once again rampant in the GPE conflict ” , the ORG summarised the work it had done with NORP clients . The report stated that the overwhelming majority of NORP seen by the ORG were ORG and the majority of them were young males . The report stated that its findings “ challenged ORG readiness to return unsuccessful asylum applications to GPE where they might face further abuse ” .

On DATE , ORG NORP website quoted ORG as stating that CARDINAL NORP men had been held incommunicado in GPE after having been returned there from GPE . A GPE police spokesman was also quoted as stating that the men had been detained on immigration charges but refuted the allegation that they were being held incommunicado . ORG also stated that the applications for political asylum in GPE by the CARDINAL men were refused by ORG . The story was recorded in DATE ORG at paragraph CARDINAL and at paragraph CARDINAL of the previous , DATE version of the same report .

From a press release available on the official website of ORG , ORG , PERSON , gave the following information at a press briefing on DATE . The Government had released CARDINAL persons out of a total of CARDINAL persons taken into custody during search operations conducted DATE . CARDINAL had been released on DATE of arrest and another CARDINAL were released following identification . The remaining CARDINAL persons had been remanded or kept under detention orders .