Aruliraivan, R (on the application of) v Secretary of State for the Home Department

The Claimant, Sivaguru Aruliraivan, seeks judicial review of the refusal of the Defendant, the Secretary of State for the Home Department, to treat his further representations as a fresh asylum or human rights claim under paragraph 353 of the Immigration Rules. As matters have developed, the relevant refusals are contained in letters from the Defendant dated 22 January 2008 and 17 November 2008. The Claimant seeks a declaration that his claim represents a fresh claim and should be dealt with on that basis.

The issue is whether the Defendant’s decision to refuse to treat the Claimant’s representations as a fresh claim was unreasonable.

The Claimant is a Sri Lankan national aged 43 . He arrived in the United Kingdom on 28 April 2002 and claimed asylum. His claim was refused in a letter dated 16 June 2002 and in a supplementary letter dated 10 September 2002. He appealed to an adjudicator, who dismissed his appeal in a determination promulgated on 22 April 2003 (“the Adjudicator’s Determination”). Permission to appeal to the Immigration Appeal Tribunal was refused on 14 June 2003.

On 1 June 2004, the Claimant made further representations on asylum and human rights grounds. Between April and June 2006, he made an unsuccessful application for a residence document on the basis that he was the relative of an EEA national exercising EU Treaty rights in the UK. The Claimant was detained on 13 October 2006 with removal directions set for 23 October 2006. Further submissions were received on 16 October 2006. These, together with the representations dated 1 June 2004, were refused by a letter dated 20 October 2006.

The application for judicial review was made on 23 October 2006, initially on grounds relating to the EEA application. Mr. Justice Silber, by an order dated 19 April 2007, refused permission on the papers. On 6 August 2007, the Asylum and Immigration Tribunal (“AIT”) promulgated its determination in the Country Guidance case of LP (Sri Lanka) CG [2007] UKAIT 00076 (“ LP ”).

At the renewed oral hearing on 21 November 2007, the Claimant sought to rely on LP and Mr. Justice Sullivan (as he then was) granted permission. At that stage, the Defendant had not yet considered the Claimant’s case in the light of LP . The Defendant then did so, by way of its further decision letter of 22 January 2008 (“the January Decision”). That letter concluded (at paragraph 34) that “ having reviewed your client’s case with anxious scrutiny, and having regard to the risk factors set in LP (Sri Lanka) it is concluded that your submissions do not create a realistic prospect of success before an Immigration Judge when taken together with the evidence previously considered .” On 24 February 2008, the Claimant filed Amended Grounds for judicial review, setting out his case, as now based on LP.

In a further decision letter of 17 November 2008 (“the November Decision”), the Defendant stated that further consideration had been given to the Claimant’s case in the light of the recent European Court of Human Rights (“ECtHR”) judgment in NA v. United Kingdom of 17 July 2008 (“ NA ”). At paragraph 16 of the November Decision, the Defendant concluded that “ it is considered that there is no realistic prospect that the decision in NA will, when taken together with all the previously considered material, lead an immigration judge to decide that your client should be allowed to stay in the United Kingdom and accordingly it does not amount to a fresh claim under paragraph 353 ”. A similar conclusion was reached in respect of the claim based on human rights.

The Adjudicator’s Determination and the January Decision and the November Decision (together referred to as “the Decision letters”) are considered in more detail below. Before doing so, I set out the relevant legal principles applicable to the Claimant’s case.

Paragraph 353 of the Immigration Rules sets out the correct approach to material presented by way of further submissions after the dismissal of an asylum claim where there is no extant appeal. It is in the following terms:

The appropriate approach for the Secretary of State when dealing with an application under paragraph 353 has been clarified in the case of R (on the application of) WM DRC [2006] EWCA Civ 1495, where Buxton LJ stated as follows:

As to the approach to be adopted by the Court when itself reviewing a decision of the Secretary of State taken pursuant to paragraph 353, Buxton LJ stated:

The issue before me therefore is whether, applying the requirement of anxious scrutiny, the decision of the Defendant that, considering the Claimant’s personal circumstances in the light of LP and NA , there is no realistic prospect of the Claimant establishing, before an immigration judge, that there is a real risk of persecution or ill-treatment upon return to Sri Lanka was unreasonable and whether in reaching that conclusion the Defendant herself satisfied the requirement of anxious scrutiny.

The Claimant also seeks to rely upon the principle now enshrined in the Immigration Rules at paragraph 339K:

There is substantial recent case law in relation to the state of the civil war in Sri Lanka and the risk of persecution in Sri Lanka of Tamils. The starting point is the AIT’s country guidance determination in LP . Following LP , there have been four important cases where further guidance has been given on the correct approach to the assessment of claims from Sri Lankan asylum-seekers. In chronological order, these cases are R (on the application of Thangeswarajah) v. Secretary of State for the Home Department [2007] EWHC 3288 (Admin), a decision of Collins J on a renewed application for permission to claim judicial review (Footnote: ¹) ; R (on the application of Sivanesan) v. Secretary of State for the Home Department [2008] EWHC 1146 (Admin), a decision of Sir George Newman; AN and SS (Tamils-Colombo-risk?) Sri Lanka CG [2008] UKAIT 00063, a decision of the AIT; and the ECtHR’s decision in NA v. United Kingdom .

Most recently, since the conclusion of oral argument in the present case, there have been two further judgments of this Court applying the foregoing up-to-date guidance case law and in particular AN and SS and NA : the judgment of Wyn Williams J in R (on the application of Lenin) v. Secretary of State for the Home Department [2008] EWHC 2968 (Admin), and the judgment of Blake J in R (on the application of Veerasingam) v. Secretary of State for the Home Department [2008] EWHC 3044 (Admin). At my invitation, the parties made further written submissions – the Defendant on both cases and the Claimant on the Lenin case.

In LP, at §238, the AIT set out a list of twelve risk factors which might make a person’s return to Sri Lanka a matter which would cause the UK to be in breach of its obligations under the United Nations Convention on the Status of Refugees (the “Refugee Convention”) and the European Convention on Human Rights (“ECHR”). These are as follows:

Tamil ethnicity

From LP and the four cases referred to in paragraph 14 above, I draw the following points of principle of particular relevance to the present case (which apply to the assessment of risk under the Refugee Convention as well as to that of Article 2 or 3 ECHR ill-treatment). First, the test to be applied is whether a claimant “ can establish that there are serious reasons to believe that he or she would be of sufficient interest to the authorities in their efforts to combat the LTTE as to warrant his or her detention and interrogation ”: NA , §133 (and see also Sivanesan §41 set out in paragraph 19 below). Secondly, there is a greater risk of interrogation and detention at the airport than in Colombo city and thus the Court’s assessment may turn on whether that person would be likely to be detained at the airport: NA , §134. Thirdly, it is legitimate to carry out the assessment of risk in the individual case based on the twelve LP factors, whilst recalling that they are neither a checklist nor exhaustive; these factors have to be assessed both individually and cumulatively: NA , §§129, 130 and Thangeswarajah and Sivanesan . Fourthly, there is a distinction in the LP risk factors between “risk factors per se ”, one or more of which may be enough to cause a returnee to be detained and ill-treated, and “background factors” which do not create such a risk without the presence of a “risk factor per se ”: Thangeswarajah as summarised in Sivanesan , §§ 22-24 and AN and SS , §§109, 122(e). As regards the nature of the computerised records available at Colombo airport, this is considered in further detail below. In the following paragraphs I set out further relevant passages from the cases.

The following passages from the AIT’s reasoning are of particular relevance to the present case:

In Thangeswarajah, Collins J set out guidance on the approach in general to the determination of Sri Lankan claims which was subsequently summarised and approved by Sir George Newman in Sivanesan , at §§ 22 to 24. It was also cited by the ECtHR in NA and endorsed by the AIT in AN and SS . The main points are referred to above. In Sivanesan , Sir George Newman further stated, at §41, that:

The determination in AN and SS is the latest AIT country guidance decision relating to Sri Lanka. The determination was dated 10 June 2008 and thus before NA . Like NA , it concerned a claimant who claimed to face ill-treatment from both the LTTE and the Sri Lankan authorities. In relation to the computer records available at Colombo airport, the AIT summarised its conclusion at §122 (f) as follows

Further detail on the existence and contents of the security forces’ database was provided in §§106 and 107. At §106, the AIT accepted the evidence demonstrating the existence of a centralised national computer database to which the security services had access. The question, accordingly, was who would be on that database. At §107, the AIT did not accept further expert evidence on this question and stated:

On 10 July 2008, the ECtHR gave judgment in NA , a case concerned with an applicant who claimed that he would face ill-treatment contrary to Articles 2 and 3 ECHR by both the LTTE and the Sri Lankan authorities. In general, the Court approved the approach of the AIT in LP . At §124, the Court noted that the deterioration in country conditions was common ground. The following passages of the Court’s judgment are of particular relevance:

In Lenin , the issue, as in the present case, centred upon the likelihood of the availability at Colombo airport of a record of the claimant’s arrest, detention and release (in that case in 1998). Wyn Williams J considered the above-cited cases and concluded (§40) that the Defendant had been entitled to conclude that the claimant had no realistic prospect of success before an immigration judge. Applying LP , AN and SS and NA , he stated (at §39):

Most recently, in Veerasingam, Blake J reached a different conclusion and quashed decisions by the Secretary of State that fresh representations did not amount to a fresh claim. In that case, the claimant was a Sri Lankan Tamil who had been involved in the LTTE, but not as a fighting member. However his brother had been a fighting member. The claimant had been arrested and briefly detained on three occasions during army round ups. Then, and following a tip off from an informer that he was involved with the LTTE, the claimant was arrested again and, on that occasion, detained for a period of three months, during which time he was fingerprinted, interrogated and tortured. He was released on payment of a bribe.

In reaching his conclusion that, in that case, the Secretary of State could not reasonably have concluded that there was no reasonable prospect of success before the immigration judge, Blake J relied specifically upon the final, three month, period of detention - how it came about (the fact that it was not random, but rather based on specific information provided to the military about the claimant himself), its prolonged duration, and its circumstances: see §§14. 15, 20, 26, 29.

Blake J considered both NA and AN and SS in relation to the risk of detention at Colombo airport in the context of a claimant's own particular profile and record. First, in reaching his conclusion, Blake J (at §§23 and 24) placed significant reliance upon §§143 and 145 of NA (set out in paragraph 22 above) and in particular, the final two sentences of §145 addressing the risk of detention at the airport, given the claimant's record of detention. Secondly, as regards AN and SS , he referred (at §26) to the passage from §107 of AN (set out in paragraph 21 above) which points out that it is unlikely that everyone detained in the last 10-15 years would be on the computer database checked at the airport. He continued:

Finally, at §29, and in contrasting the case with that in Lenin , Blake J stated

In his determination, the Adjudicator made the following relevant findings:

The Claimant relies upon the following further passage in the Determination, taken from the section recording the Claimant’s submissions:

In the January Decision, the Defendant referred, at paragraph 3, to paragraphs 48 and 49 of the Adjudicator’s Determination and stated that she had reconsidered the Claimant’s position in the light of LP. She then continued:

The January Decision then listed factors i), ii), v), vii), viii) ix), x) and xi) from the list in LP . It went on, in paragraphs 15 to 28, to deal, not simply with the eight factors relied upon, but, in fact, with all twelve LP factors. I deal with the Defendant’s reasoning on particular factors, in the course of addressing the Claimant’s case below.

In the November Decision, the Defendant stated that further consideration had been given to the Claimant’s case in the light of NA . At paragraph 8, the Defendant stated that “ Consideration has been given to whether he would be at risk upon return to Sri Lanka based on the findings of NA. For all the reasons set out below, it has been concluded that the earlier decision taken in your client’s case is not altered by the judgment of the ECtHR in NA. ” The Defendant referred to the fact that NA had endorsed the list of factors in LP and to §130 of the ECtHR’s judgment and concluded that in the Claimant’s case, the case of NA did not lead to a different conclusion than that that had been reached in the January Decision. No distinct consideration is given, in the November Decision, to those passages of NA (including in particular §145 of the judgment) dealing with the issue of the records available at Colombo airport.

The Claimant's amended grounds for judicial review put forward five errors of law said to have been made by the Defendant in the Decision letters.

The Decision letters give too much weight to the Adjudicator's assessment of whether the Claimant would be at risk on return in 2003 during the period of ceasefire.

The Decision letters give insufficient weight to what has been described in the authorities as a state of virtual civil war.

The LP risk factors identified are more than sufficient to create a realistic prospect of

success before an immigration judge.

The analysis that the Claimant is of extremely low profile is not borne out by the objective evidence. The Claimant was an integral part of the LTTE supply chain assisting and supporting the LTTE in the continued conflict against the Sri Lankan authorities.

The Decision letters failed to take the Adjudicator's finding of persecution of the Claimant as the starting point.

I deal with Ground (5) first. I then address Ground (3), dealing with the application of the LP factors (as developed) to the Claimant. The argument here was refined in the course of argument and is at the heart of the Claimant's case. Thereafter I address briefly Grounds (1) and (2). Ground (4), in substance, forms part of the argument made on Ground (3) and is not separately addressed.

The Claimant contends that, in the Decision letters, the Defendant should have taken as her starting point the clear finding that the Claimant had been the subject of past persecution in Sri Lanka and that the risk of persecution upon return had to be assessed with that fact uppermost in her mind.

In my judgment, this criticism of the Decision letters is unfounded. As the Claimant accepts, the Defendant did take, as her starting point in the January Decision, the Adjudicator's Determination. The January Decision, at paragraph 3, expressly refers to the fact that the Adjudicator found (at paragraphs 48 and 49) that the Claimant did not have a well founded fear of persecution largely because of the changes which had taken place in Sri Lanka and explained why the Claimant would not be of interest to the authorities upon return. Whilst it is correct that, in the January Decision, the Defendant does not also quote the first part of the first sentence of paragraph 48 which refers, in terms, to the past persecution of the Claimant, there is no basis for the Claimant's suggestion that the Defendant did not appreciate or recognise this fact. As appears from the remainder of the January Decision (paragraphs 12, 13, 18, 22), the Defendant was aware of, and took into account, the Adjudicator's findings that the Claimant had been arrested and detained and that he had received some scars as a result of his ill treatment at the hands of the Sri Lankan Army.

In any event, the fact of past persecution is not of itself sufficient to establish a future risk on return (even in the current changed circumstances), without looking at the particular factors identified in LP . Paragraph 339K of the Immigration Rules, upon which the Claimant relies in this connection, expressly states that past persecution is not sufficient if there are good reasons to consider that such persecution will not be repeated. Whether such good reasons exist falls to be considered under Ground (3).

Put broadly, the Claimant's case is that, in the Decision letters, the Defendant failed to give sufficient weight to the fact and extent of, and the circumstances surrounding, his detention by the Sri Lankan Army in 2001. These circumstances need to be considered in the light of §§ 214 and 236 of LP itself and all point to the Claimant being of greater interest to the authorities, and to his having a higher profile, than that which forms the basis of the Defendant’s decisions. Thus the Defendant's conclusion on the LP factors of "Previous record as an LTTE member" and the "Bail jumping and/or escape from custody" was wrong. Further, the Defendant gave insufficient weight to the Claimant's scarring. These failures, when relevant background factors applicable to the Claimant are also taken into account, lead to the conclusion that there was, and is, a real risk on return, and the Defendant's view that there was no realistic prospect of an immigration judge reaching such a conclusion was unreasonable.

The Claimant relies upon four "per se" risk factors, upon scarring and a number of "background" factors. The "per se" risk factors relied upon are: previous LTTE record (factor ii)), bail jumping/escape (factor iv)), confession and relatives in the LTTE. In argument, the focus was on the first two of these. It seemed to me that, in some ways, the Claimant appeared also to relying upon factor iii) "criminal record and/or outstanding warrant", and, in any case, there may be much overlap between factors ii), iii) and iv). Ultimately, as stated in paragraph 17 above, and as became clear in the course of argument in this case, a central issue is the risk of being detained on arrival at Colombo airport, and it seems to me that these three factors, where present, all feed in to this risk. Here I consider the main argument under factor ii) below - although I give separate consideration, under factor iv), to certain discrete arguments.

By way of preliminary observation, in my judgment, it is important to distinguish between, on the one hand, a claimant's record, in the sense of history, of involvement with the LTTE and, on the other, his record, in the sense of the recording by the Sri Lankan authorities of that history (and in particular detention). Thus, the reference to "previous record" in LP factor ii) covers both these senses of "record"; whilst "previous criminal record" in factor iii) is directed towards the second sense only and is a reference to a formal record of previous conviction. (In this regard, I am not sure that this is a distinction which was made by the ECtHR in NA , particularly at §143.) Thus the fact of detention, without charge or outstanding warrant, falls within factor ii) and not factor iii). On this basis, strictly, factor iii) does not apply in the present case.

The Claimant seeks to rely upon a number of "background" factors; and it is indeed the case that a number of these factors identified in LP do apply to the present case, namely Tamil ethnicity, return from London, illegal departure from Sri Lanka, lack of an ID card and having made an asylum claim abroad. However, for the reasons given by Collins J in Thangeswarajah, if the Defendant's conclusion relating to relevant "per se" risk factors was reasonable, the existence of any one or more of these "background" factors cannot materially improve the Claimant's case for judicial review,. On the other hand, if the Defendant's conclusion on any one or more "per se" risk factors is open to question, then the existence of these background factors can only increase the prospect of establishing a real risk before an immigration judge.

Moreover, it is also the case that, as the Adjudicator found (at paragraph 37), the Claimant received some scars as a result of ill-treatment at the hands of the SLA. Of itself, this would not be sufficient to put him at risk (and the Claimant's specific criticisms of paragraph 22 of the January Decision are of themselves unfounded). Nevertheless, in the presence of one or more other, “per se” risk factors, the existence of scarring here may well also add to the risk of detention and ill-treatment.

This factor was addressed at paragraphs 16 and 17 of the January Decision. At paragraph 17, the Defendant concluded that the Claimant's profile was so low that he was of little interest to the authorities, and that, applying the LP guidance at §210 which emphasises the importance of the applicant's profile, the Claimant would have no prospect of success before an immigration judge. The Defendant relied upon facts, found by the Adjudicator at paragraph 49 of the Determination, that the Claimant was not a fighting member of the LTTE, that he had been neither convicted nor charged of any offence; that he was not wanted, that any record of his arrest would not refer to the payment of a bribe and that it was likely that he had been released because he was of no further interest to the authorities.

The Claimant contends that, first, his profile was in fact higher (and thus that the record of his involvement would be more detailed) and, secondly, that this is all the more significant given the change in circumstances in Sri Lanka since the Adjudicator's Determination. The Defendant, in response, emphasises, as being crucial, the further finding in paragraph 49 of the Adjudicator's Determination, that there was no evidence that the Claimant was on any wanted list.

There are two distinct aspects which fall for consideration here: first, the degree or level of the Claimant's actual involvement with the LTTE; secondly, what, if anything of this involvement is likely to be contained in the records of the Sri Lankan authorities and, in particular, on the records available at Colombo airport, thereby giving rise to the risk of the Claimant being detained at that airport on his return.

The Claimant contends that his involvement with the LTTE was substantial and thus his profile is higher than recognised by the Defendant. On a scale of involvement from "a full-time fighting member to the informal periodic supply of food" suggested at §235 of LP , the Claimant says that his activities were closer to the former. His activities formed an integral part of a key supply route. However, in my judgment, this description overstates the Adjudicator's findings, upon which the Defendant relied in the Decision letters. The Adjudicator found, in paragraphs 28 and 49, that the Claimant was involved with the LTTE, briefly in 1985-86 and then more substantially between 1999 and 2001 and that his involvement was in the transportation of goods and supplies between India and Sri Lanka. There is no reference in the evidence or the findings to the significance or importance of the particular supplies in question nor to the Claimant's particular role in those supplies (save for a single reference to involvement in "smuggling" (but not of arms)). In summary, and on these findings, the Adjudicator found (at paragraph 49) only that the Claimant "undertook some tasks for the LTTE" and then pointed out, by contrast, that he "was never a fighting member of the organisation". In my judgment, the Defendant made no error in assessing the Claimant's level of past involvement with the LTTE.

The Claimant contends that it is very likely that the Sri Lankan authorities will hold a record of his past involvement with the LTTE and that there is a real risk that that record will cause him to be detained at the airport in Colombo if he is returned to Sri Lanka.

As to whether the Claimant's involvement is likely to be on the records, in general, of the Sri Lankan authorities, the Claimant refers to a number of factors: the fact that he was arrested as part of a targeted operation and having been personally identified to the SLA by the EPRLF and the length of his detention (namely 4 months). This was “a longer detention as a result of a targeted operation” and thus “much more significant” (per §236 of LP (paragraph 18 above)). In this connection he also relies upon §214 of LP (a point addressed further in paragraph 64 below). He also points to the fact (referred to, even if not formally found, in paragraph 15 of the Adjudicator's Determination) that before he was released, the Claimant was "recorded, photographed and fingerprinted". All these factors indicate that his arrest and detention was “formal”.

The Defendant, in argument, accepted that there is no express reference in the Decision letters to the formality or length of the detention, nor to §236 of LP at all. Nevertheless the Defendant suggests that these are all points which are evident in the Adjudicator's Determination and there is nothing to suggest that the Defendant did not have details of detention in mind. Further and in any event, the Defendant relies on the findings of the Adjudicator that, even if there is a record of his detention, it is likely that it will show that he was released because he was of no further interest to the authorities and that "there is no evidence that he is wanted or on any wanted list". This leads on to the specific question of the likely content of the records held at Colombo airport.

As stated above, it is now recognised that, in a case such as the present, the risk of detention at the airport is a key issue, and that in turn raises the issue of the nature of the records held by the Sri Lankan authorities, particularly the nature of the computerised records held at Colombo airport. The Defendant places substantial reliance upon AN and SS at §§106 and 107 and upon the finding of the Adjudicator in relation to a “wanted list”. The Defendant contends that the approach of the AIT at §107 of AN and SS (paragraph 21 above) represents a more detailed analysis of the position as regards computer records than that in NA and, to the extent that there is a difference between the two cases, AN and SS is to be preferred. Thus, since the Adjudicator found that there was no evidence that the Claimant was on any wanted list, then, applying AN and SS , there was no sufficient risk of him being detained at Colombo airport due to his record of detention showing up on the computer checks.

On the other hand, the Claimant relies heavily upon NA at §145 of the ECtHR’s judgment in NA (paragraph 22 above) to support the proposition that the class of persons who are at risk of detention at Colombo airport is in fact wider than that indicated by §107 of AN and SS ; and submits that I should accept the approach in NA in preference to that in AN and SS. §145 supports the contention that the nature and record of his detention puts the Claimant at substantial risk of being detained upon return at Colombo airport. The Claimant further suggests that the Claimant may have been put on the wanted list as a result of end of ceasefire.

There is no doubt that there are computerised records and that these are, to a greater or lesser extent, available to enable the authorities at Colombo airport to carry out such checks as considered appropriate. Nevertheless there does seem to me to be, at the least, a difference in approach between that of the AIT in AN and SS and that of the ECtHR in NA. I have concluded as follows.

First, and before turning to the specific issue of §145 NA and §107 AN and SS , in my judgment, in the Decision letters the Defendant failed to give any or any sufficient consideration (and certainly did not give "anxious scrutiny") to the nature and circumstances of the Claimant's four month detention in 2001 and the likely record of that detention. This is illustrated by the fact that neither Decision letter makes any reference at all to §236 of LP and the issue of the length of, and reasons for, the detention. On the issue of the record of that detention, the Claimant rightly points to paragraph 15 of the Adjudicator's Determination which recites the claim that, upon detention, the Claimant here was “recorded photographed and fingerprinted".

Secondly, AN and SS is neither necessarily comprehensive nor finally authoritative as to what may or may not happen at Colombo airport, either as to the specific issue of computer records or, more importantly, as to the wider overall risk of detention. Although a country guidance case, the AIT did not have before it the benefit of the assessment of the ECtHR in NA. For this reason, in Veerasingam , Blake J (§28) rejected a submission that he, or a future tribunal, should apply AN as a general assessment as opposed to the assessment of the ECtHR in NA.

Thirdly, NA is not just another case decided "on its own facts"; it is a substantial and important judgment from ECtHR and one to which the Defendant was under a duty to give careful consideration. In this regard, as well as failing to refer to §§214 and 236 of LP in either Decision letter, in the November Decision (directed, in terms, towards the effect of NA ) the Defendant made no reference at all to §145 of NA. NA is important both in its general assessment and in its outcome.

Fourthly, §145 of NA is of central importance to the approach to be adopted where a claimant has been previously detained and a record has been made of that detention and to the risk that such a claimant faces upon return to Colombo airport. In my judgment, the approach to that risk at §145 is wider and more "holistic" than the very specific approach in §107 of AN and SS (decided without the benefit of NA ). At §145, the ECtHR starts by stating that in general "the greatest possible caution" should be taken, where there has been a previous and recorded detention. It then identifies the specific risk arising from the availability of computer records at the airport, but then goes on to make the further point that, on any given date, the security situation in Sri Lanka might require additional security at the airport (a point also made at §136).

Fifthly, I accept the Claimant's submission that his case is not distinguishable on the facts from those upon which the ECtHR's approach in §145 of NA is based. Whilst I take account of Sir George Newman’s observations in Sivanesan at §43 about factual comparisons, the facts of NA form an essential part of the ECtHR’s general reasoning in §145. The reference, in §145 of NA , to the fact that "a record was made of his detention" is not confined to the specific document signed by NA's father (referred to in the second half of §143) but refers equally to the more general statement at §8 (and in the first half of §143), which encompasses the facts that NA was photographed and fingerprinted. (In Veerasingam (at §27) Blake J declined to accept that the case of NA turned upon the specific fact of the document signed by NA’s father.) In the present case (as in NA ) the details of the Claimant were recorded during his detention and this distinguishes the present case from Lenin (where, at §39, Wyn Williams J distinguished NA on that basis).

Sixthly, §107 of AN and SS does not exclude the possibility that the Claimant's record will be available at Colombo airport or that he will be otherwise questioned at the airport. §107 refers only to two classes of past detainees, at different ends of the spectrum. In the present case the Claimant is not merely one of those " who has ever been questioned about possible knowledge of, or involvement in, the LTTE " or who was " once held for questioning years ago and then released ". Rather he is someone who was involved in the LTTE, whose specific arrest was targeted for that reason, and who was then subsequently detained for four months and ill-treated. Thus, and as indicated by §236 LP , he falls into a narrower class whose risk on return must be greater than this general class identified in §107. In this regard I refer to Blake J’s judgment at §26 (see paragraph 26 above). Further, the Adjudicator’s finding that there was “no evidence” that the Claimant was on “any wanted list” was made during the period of the ceasefire and does not necessarily rule out the possibility that the Claimant would appear on one of the Lists variously now identified in LP and AN and SS (where there is also some confusion in the identification of the various lists i.e. “Stop”, “Watch”, “Watched” and “Wanted”). It is clear, from paragraph 50 of the Adjudicator’s Determination, that his view on who was, at that time, “wanted” was based on the fact that under the then current cease-fire agreement, past involvement in the LTTE would not of itself have been a reason to be stopped. In any event, for the reasons given at §145 NA (paragraph 56 above), not being on any of the “Lists” does not rule out the risk of detention at the airport.

Finally, the Defendant submits that the present case is to be distinguished from Veerasingam, because in that case there were further factors which are not present in this case: the claimant's brother was also involved as a fighting member of the LTTE; when the claimant left the country, he was in breach of reporting requirements imposed upon him following release; and whilst in detention, he had acted as an informer. However, in my judgment, as explained in paragraphs 25 to 27 above, it is clear that the overriding factor which Blake J considered the Secretary of State not adequately to have taken into account was the fact, duration and circumstances of the three month detention.

For these reasons, I find that the Claimant has made out its case for judicial review based on LP factor ii) and that the Decision letters failed adequately to take account of the nature, duration and record of the Claimant’s detention by the SLA in 2001 and thus underestimated the risk that that record would cause him to be detained at the airport in Colombo, if he were to be returned to Sri Lanka.

Paragraph 19 of the January Decision recorded the facts that the Claimant does not claim to have ever jumped bail or to have escaped from custody, but rather that the Claimant was released following payment of a bribe. After then citing parts of paragraph 49 of the Adjudicator's Determination, paragraph 19 continued that there is nothing in LP to suggest that the Claimant would now be at risk in Sri Lanka. This issue is considered at §§212 to 214 of LP (set out at paragraphs 18 above). Whilst paragraph 19 makes no express reference to these paragraphs, I consider that there is no basis for the Defendant deciding that the Claimant falls into the specific “per se” risk category of bail jumpers or escapees identified in §213 of LP . (Somewhat inexplicably, §§213 and 214 of LP are set out expressly in paragraph 18 of the January Decision under the heading of Criminal Record (factor iv)), even though those paragraphs of LP do not address that distinct factor). However the Claimant raises two further arguments under this head.

First, the Claimant contends that, according to §212 of LP , even where there is release without charge, this does not preclude subsequent detention and that there is a practice of routinely re-arresting and re-detaining people. Thus, it is argued, §214 of LP (which states that, with release on payment of a bribe, the risk is low) has to be read in the light of §212. I do not agree. §212 of LP itself does no more than record the evidence of Professor Goode concerning the comparative risks of (a) release on bail and (b) release without charge and on payment of a bribe. Rather, it is §213 (together with §214) of LP which contains the AIT's own conclusions. The AIT compares those who go to court and have been released on bail (§213, higher risk) with those who do not go to court and may have been released on payment of a bribe (§214, lower risk). Accordingly, §212 does not qualify the analysis in §214.

Secondly, the Claimant further contends that in the present case, the fact that the Claimant was released on payment of a bribe does not mean that he falls into the lower risk category in §214, because here the detention was "formal" and not "informal". There is substance in this point. In my judgment, the effect of §214 as a whole is that, even if the bribe securing the release has not been recorded, nevertheless if the detention itself was formal (rather than informal), then it does not follow that the claimant will fall into the lower risk level identified in §214. Whilst, I note that, at one point in §214, informality of detention and unlikelihood of a record of bribe appear to be stated as alternatives, the correct analysis must be that if there is evidence that the detention was formal, then as a matter of logic, the claimant will be at a higher risk than if it had only been informal. Whether the formality of the detention truly falls within this factor or rather is an additional element under factor ii) does not, in my judgment, make any substantial difference. In either event, it is likely to increase the overall risk on return.

In argument, the Claimant relied upon the claimed fact (recorded but not found in paragraph 15 of the Adjudicator's Determination) that, whilst detained, the Claimant had admitted that he had worked for the LTTE. In my judgment, there is no evidence that the Claimant had actually signed a confession and there is nothing inherently wrong in the Defendant’s reasoning at paragraph 20 of the January Decision rejecting this as a factor, based, as it was, on the assumption that the authorities would have no continuing interest. However since I have concluded that, based on factor ii) the Claimant’s profile is higher than the Defendant found it to be, it follows that the fact that he did make an admission whilst in detention could be said to add to the significance of the risk upon return.

Mr. Fletcher, counsel for the Claimant, also referred to a passage in the Claimant's earlier statement of evidence form in which he stated "I have relatives who were in the LTTE" and sought to contend that this was an additional "per se" risk factor that the Defendant had not taken into account. §222 of LP states that this factor " on its own, without established and credible evidence of the details of the other family members and their known role or involvement with the LTTE, will be of limited weight ". In the present case the Claimant has not provided, either before the Adjudicator, the Defendant or this court, any further detail concerning the nature of the involvement in the LTTE of those relatives. Indeed paragraph 27 of the January Decision expressly leaves this factor out of account, because the Claimant had not claimed "to have any family members in the LTTE". Accordingly, the Decision letters cannot be impugned for failure adequately to address this factor.

In my judgment, and in the light of the conclusions in paragraphs 53 to 60, 63 and 64 (and 41 and 42) above, in the present case, the manner, nature and length of the Claimant's detention and the strong likelihood of there being a record of that detention, when taken together with the existence of scarring, the making of an admission and the background factors, give rise, at the very least, to a realistic prospect of the Claimant establishing before an immigration judge that there is a real risk of him being detained and persecuted or ill-treated upon return to Colombo and the Defendant's conclusion that there was no such realistic prospect was one which no reasonable Secretary of State, anxiously scrutinising both the relevant facts and the relevant case law, could properly have reached.

The Claimant contends that the Defendant's overall position was over-reliant upon findings of the Adjudicator made at a time when the situation in Sri Lanka was different (namely when there was a ceasefire) and that this approach wrongly influenced all the Defendant's findings in the Decision letters. He further contends that the Defendant failed to give sufficient weight to the current state of virtual civil war. In my judgment, these contentions do not materially assist the Claimant's case. The stated purpose of the January Decision was to reconsider the Claimant's position in the light of the then recent country guidance given in LP . Moreover, at paragraph 31 of the January Decision, the Defendant expressly took account of the fact that the "situation in Sri Lanka may have deteriorated in recent months" and that "there continue to be incidents of violence between the LTTE and the authorities", and then assessed the effect of that deterioration on the Claimant's case, in the light of the Adjudicator's Determination. The Defendant's approach contained no error on the basis suggested in these two grounds. Rather the error lay in the assessment of the LP factors, in the light of NA.

For these reasons, I conclude that it was not open to a reasonable Secretary of State, properly applying LP and NA , and addressing matters with the requisite anxious scrutiny, to have concluded there was no realistic prospect of the Claimant establishing before an immigration judge that there is a real risk of persecution and/or ill-treatment upon his return to Sri Lanka. The Secretary of State's decisions that the Claimant’s further representations did not amount to a fresh claim under paragraph 353 of the Immigration Rules were therefore unreasonable. Accordingly I quash the Defendant's decisions of 22 January and 17 November 2008.

I will hear further submissions on the need for any further relief, if there is no agreement as to how matters are now to proceed. I propose dealing with this and other consequential matters, including costs, immediately following the handing down of this judgment. In the meantime, I am grateful to both Mr. Fletcher and Mr. Blundell for the assistance they have provided to the Court.