Selvaratnam v Secretary of State for the Home Department

LORD JUSTICE PETER GIBSON: I will ask Buxton LJ to give the first judgment.

LORD JUSTICE BUXTON: This is an appeal from a determination of the Immigration Appeal Tribunal, who itself had allowed an appeal by the Secretary of State from the decision of an adjudicator in the asylum application of the applicant, Mr Selvaratnam, who is a citizen of the Republic of Sri Lanka.

The adjudicator, who heard the application and had the benefit of hearing Mr Selvaratnam give evidence and be cross-examined, made a series of important findings with regard to his previous experience with the authorities in Sri Lanka. First of all, the applicant was arrested and tortured in 1995 and 1996 because of his associations with what are colloquially called the Tamil Tigers ("the LTTE"). On that occasion he was released because no connection with the LTTE could be established and his parents bribed the authorities to release him. He had no further problems with the authorities until 13th November 2000, when he was arrested for a second time. It appears that information about him had been provided by some of his former schoolmates who themselves, the applicant believed, had been tortured in order to obtain that information. That information confirmed that he had indeed worked for the LTTE, albeit not being apparently a member of that organisation, in 1994 and 1995. He was held for two months and was tortured until he agreed to sign two papers. One was in Singalese -- he believed it to be a confession of some kind, although he was not able to read it -- the other was a blank sheet of paper. He was detained and forced work for the Army on the basis that he was involved with the LTTE. After about two months, that is to say in January or February 2001, he succeeded in escaping and reached this country by clandestine routes -- not by any agreement of the authorities in Sri Lanka -- in September 2001, and immediately claimed asylum.

The adjudicator, as I have said, accepted all of that evidence as being correct and reliable. It amounted, as will have been seen, to a finding that the applicant was both someone who had been identified by the authorities in Sri Lanka as involved with the LTTE; and also somebody who had been arrested on that score and tortured very recently -- that is to say within the previous 18 months -- and had also clandestinely and unlawfully escaped.

The adjudicator concluded on the objective evidence before him that if the applicant were returned to Sri Lanka he would be arrested, not least on the grounds that the CID of that country take into custody people returning who are thought to have committed a criminal act before leaving Sri Lanka. That finding was made by the adjudicator at paragraph 21 of his adjudication. The adjudicator also found that if the applicant were detained:

Faced with those findings the adjudicator allowed the appeal and discharged the certificate that had been issued by the Secretary of State.

The Secretary of State appealed to the Immigration Appeal Tribunal. The basis of that appeal and the ground upon which permission was granted by the Appeal Tribunal was effectively that there had been a change of circumstance and attitudes in Sri Lanka, such that persons such as the applicant were no longer at risk if they were to be returned to that country. That submission was based upon a fact-finding report of a visit to Sri Lanka in March 2002, supported by interviews with persons concerned in the operation of the criminal justice system in Sri Lanka, and views of the United Nations High Commission for Refugees; together with a detailed report dated 2002, as a result of that visit, produced by the Counter Information and Policy Unit of the Home Office. The burden of the case that was based upon that report was that persons returning to Sri Lanka were no longer automatically at risk in the way in which they had been in previous years.

The Immigration Appeal Tribunal accepted those submissions and found, basing themselves on some observations of Collins J in the case of Jeyachandran [2002] UK IAT, that whilst it was premature to accept that everyone who had claimed asylum in this country would be able to return safely, that expert tribunal was of the view that in the present situation it is only exceptional cases that will not be able to return in safety. The Appeal Tribunal therefore at paragraph 9 of this determination asked itself the question: "whether this respondent is such an exceptional case".

Mr Patel, who has appeared at extremely short notice on behalf of the Secretary of State in this appeal and has said everything that possibly could be said to oppose it, submits very strongly that the Appeal Tribunal did indeed ask itself the correct question. It had before it (and recited) the findings of the adjudicator and had before it (and recited) the up-to-date objective country material upon which it was bound to found its decision. Therefore, says Mr Patel, it is not open to this court to differ from the view of the Appeal Tribunal, however much the members of this court might have taken a different view had they themselves borne the burden of deciding this case. I would immediately accept that submission as a general proposition, but I cannot accept that it applies to this adjudication in this particular case. That is because, in my estimation, the Appeal Tribunal did not in fact ask itself the correct question.

In its quotation from Collins J the Tribunal emphasises, as had Collins J, the position of returning persons who have claimed asylum in this country. It is, of course, well-known that in Sri Lanka, as in other countries, there have been problems for returning asylum seekers simply because they have sought asylum in another country and been unsuccessful. Added to that, in the particular circumstances of Sri Lanka there have been problems about persons returning bearing scars of one sort or another that might have suggested involvement in the conflict which has unfortunately burdened that country for so many years. It seems to me that it was to those issues -- that is to say the general position of failed asylum seekers and the position of people bearing scars -- to which the up-to-date country information was particularly directed, and it is that aspect of the up-to-date country information that is quoted at length in paragraph 12 of the determination of the Tribunal. That, however, does not conclude the question in the present case: because the situation of this applicant, as the special adjudicator found, is not simply that he will be a returned asylum seeker on his return to Sri Lanka, but that he is a person who very recently has been in detention in that country for a specific reason, a reason that is identified by the authorities in that country and is still identified as a ground for taking an interest in its citizens; and had unlawfully escaped from that custody. That being so, it was necessary in his case to relate the new country material to the specific circumstances of this applicant found by the adjudicator. That, I have to say, is not done by the Appeal Tribunal. They may have been deflected from that course by fastening on the particular formulation in the judgment of Collins J with regard to returned asylum seekers, rather than on the further point made by Collins J that persons who are "wanted" by the authorities in Sri Lanka may well still be at risk.

That that is so is supported by the interview reported by the Home Office investigating team with the senior superintendent of the Criminal Investigation Department in Colombo on 21st March 2002. At paragraph 6.1 the team reports:

Despite all the facts being set out, that particular aspect of the matter was not concentrated on, as it should have been. That is sufficient to compel us to allow this appeal: because Mr Patel very properly accepted, and as is set out in the Country Report, that it is unfortunately still the case in Sri Lanka that once a person is detained by the authorities he is at danger of being tortured: as indeed Mr Selvaratnam had found out for himself not two years ago. That was a proper concession, and it follows from it that this applicant will be at risk of torture, on the evidence before the Tribunal, were he to be returned to Colombo.

I would therefore allow this appeal and restore the orders of the adjudicator.

LORD JUSTICE MAY: I agree that this appeal should be allowed for the reasons given by Buxton J.

LORD JUSTICE PETER GIBSON: I also agree. As we are differing from the IAT, I add a few words of my own.

The IAT relied on the remarks of Collins J in Jeyachandran to the effect that it is only in exceptional cases that a person returned to Sri Lanka will attract the attention of the authorities there and that such persons are likely to be limited to those who are wanted persons. The question is whether the case of the applicant is an exceptional case as a person likely to be of interest to the Sri Lankan authorities and so likely to be detained, it being conceded that, once he is detained, there is a substantial risk of persecution.

What distinguishes the present case from the generality is that the applicant, who has been accepted by the adjudicator to be a witness of truth, had been arrested for a second time as recently as 13th November 2000. That was done on information that he had worked for the LTTE in 1994 and 1995. He had been tortured and made to sign some form of confession in Singhalese, as well as a blank sheet of paper. On escaping he had left Sri Lanka by use of a false passport.

The adjudicator found that the Sri Lankan authorities had treated the applicant as a person with the political opinions of the LTTE and that he had been arrested and ill-treated because of that approach by the Sri Lankan authorities. The adjudicator made the finding that the applicant would come to the attention of the authorities and be of interest to them, so that he would be likely to be detained and, in consequence, ill-treated.

The fact that in truth the activities of the applicant for the LTTE were at low level some years ago may not be the determinate fact, given that he had signed a form of confession and signed a blank piece of paper. What may have been written on that paper one cannot, of course, know; but on the facts it seems to me plain that there is a substantial risk that the applicant would be a person regarded by the Sri Lankan authorities as of interest through having confessed to have connections with the LTTE.

In my judgment the IAT did not give to these particular facts relating to the applicant the importance which they deserved. I do not see how they could properly come to a conclusion differing from that of the adjudicator given those particular facts. The general improvement which happily has occurred in Sri Lanka relating to human rights abuses does not, as it seems to me, detract from the evidence that in the case of those who are of interest to Sri Lankan authorities as being connected with a terrorist organisation there remains a substantial risk.

For these, as well as the reasons given by Buxton LJ, I too would allow this appeal.