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Breach of confidentiality in Sri Lankan asylum return


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An investigation is required as a matter of extreme urgency into an accepted breach of confidentiality in respect of the case of a Sri Lankan Tamil woman detained by the UKBA and pending removal to Sri Lanka on 16 June 2011. It is important to stress that UKBA do not dispute that the breach has occurred as described below.

The woman in question [XT] had an appeal determined on the 29th December 2010. The Immigration Judge had found her claim to be lacking in credibility. Consequently enforcement action has been initiated along with action against other failed asylum seekers. Sources say as many as 80-100 are due to be placed on a charter flight on the 16 June 2011 (see here, here, here and here, for example). The fact that there is a removal en masse arguably itself gives rise to significant concern as to the treatment of the returnees on return, given that the nature of removal will attract attention to them and identify the returnees as failed asylum seekers. See this previous post (slightly out of date now) on general concerns regarding return of Tamils to Sri Lanka.

On 12 May 2011 XT was interviewed in detention in the UK by an official from the Sri Lankan High Commission. She was unrepresented when this interview occurred and her representatives had no notification of the interview.

Ostensibly the interview was for the purposes of verification of identity and nationality.

XT noted with alarm that the official from the Sri Lankan High Commission had a document that had previously been retained by the Home Office in its file which was produced in support of XT’s appeal hearing.

The document related to XT’s claim that her cousin who had been forced to join the LTTE, was shot in April 2008 and had XT’s account details on his person. The letter from the police requested that XT collect the body. This is the document that the SLHC had in its possession.

During the interview with the SLHC, XT was asked why she had come to the UK. Whilst XT was responding the SLHC official produced the letter from her file. It is further claimed by XT that the interview was recorded on CCTV.

Consequently XT complained to her solicitor that her document had been passed by the UKBA to the SLHC without her permission or notification. XT expressed her fears at the prospect of return.

XT’s solicitors submitted a fresh asylum claim on the basis that the possession of an incriminating document and the nature of the interview with the SLHC gave rise to persecutory risk on return.

On the 1st June 2011 the UKBA said this in response to the fresh claim made on the 16 May 2011:

‘Whilst it is accepted that the Police Memo was included in an Emergency Travel Document Pack sent to the SLHC to assist in your re documentation, it is not accepted that the presence of this document places you at risk on return as it is not accepted that you were ever wanted by the police for assisting the LTTE’.

This incident raises the following concerns:

  1. Why has there been no investigation of such a serious breach of confidentiality of an asylum claim and the document submitted in support of the claim?
  2. How did an incriminating document from the Home Office file find its way into the ETD pack?
  3. What other documents have been placed in the pack? XT’s solicitors asked for confirmation of a full list of all the documents submitted in the pack and have received no response.
  4. What is happening to other returnees who ought to now request proof of the contents of their ETD packs in their cases?
  5. Why is the SLHC permitted to interview returnees in UKBA custody as to their asylum claims?
  6. Does the UKBA not have a duty to ensure that returnees in its custody are not placed at risk on return , by ensuring that returnees are not interviewed unrepresented in custody about their asylum claims?

Until these matters are fully resolved and scrutinised by an Independent Tribunal there are obvious concerns as to whether it is safe to return any returnee on the 16 June 2011 or any other date unless each returnee can be satisfied that there the UKBA has a secure system in place that respects the privacy of each returnee and ensures that UKBA actions do not directly or indirectly aggravate risk on return.

At the time of writing there are growing claims made by returnees of detailed questions being asked during the documentation process by the SLHC as to the content of their asylum claims and LTTE connections. There is a strong inference that the UKBA either know this is happening or are reckless as to the consequences.

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16 Responses

  1. There is an inherent duty on all States not to create refugee sur place. The response is truly astounding; it’s not what UKBA and an IJ believe now but what the Sri Lankan authorities might reasonable believe. The mere fact that the document was put to her suggest that the Sri Lankans considered it as prima facie evidence. At what risk on return is the individual place before (for the sake of argument) the document os found to be not credible? Even if the document is found to be not credible will the Sri Lankans judge that she hass brought the State into disrepute and treat her accordingly? In re the return of failed asylum seekers you cannot throw rocks in ponds and be unconcerned where the ripples end.

  2. ‘she lacks credibility’ i said to the Judge ‘do you mean she’s lying’ came back the IJ.

    What you should be asking is; would an economic migrant with a failed/false asylum claim be put at risk on return by being interviewed by their government officials?

    If she is concerned about return on a charter flight then the obvious solution is a voluntary departure….

    1. 1. Why would UKBA hand over to the Sri Lankan authorities in the UK papers that were handed in confidence to UKBA? What possible reason could there be for this? Remind me, what is it that UKBA officials read out at the beginning of screening and asylum interviews?
      2. How can UKBA be sure that even though UKBA have rejected the documents the Sri Lankans will do so likewise? The outcome of an asylum or any other court case is never certain, no matter which way it goes – lawyers have this bizarre, utterly artificial notion that a court case determines ‘the truth’.

  3. In reply to Dave O: you are not volunteering if the choice is “go on a commercial flight or we’ll send you by charter.” That is coercion.

  4. Firstly, all of the sources for the “mass deportation flight” Ms Jegarajah cites are in fact single sourced (follow the links and you will see), and amount to a un-sourced quote from a fellow ‘immigration lawyer’, none other than the affable Mr Paramjorthy.

    There is one known case where a document appears to have been included in an ETD pack in error, error as it was clearly not appropriate as it could led to allegations of sur-place risk, and in error given that the document was probably fake in the first place (either way it does nothing to establish nationality). The suggestion that the entire charter should now be cancelled as a result is ludicrous hyperbole.

    Taking a step back, lets remember that the only reason that these offenders have to be detained is that they have refused accept the decisions of the Courts in relation to their asylum and human rights claims (FM’s hypocrisy re accepting negative credibility findings whilst relying on positive ones in his work is jaw dropping).

    Further, the only reason these offenders have to go through the ETD process in detention is that 1) They have destroyed or failed to produce their own passport and 2) they have refused or failed to obtain an ETD on a voluntary basis.

    This post as a whole also fails to refer to the fact that that civil war in LKA is pretty much over, in addition to the current CG case being more in favour or removal than its predecessor.


    1. The idea that a court case establishes ‘the truth’ is a fallacy subscribed to only by some lawyers. Everyone else, and hopefully most lawyers, realise that courts do get things wrong. I myself rarely or even never ‘know’ with genuine certainty whether my client is telling the truth or not. I have won cases where I suspect not and have lost cases where I suspect they are telling the truth, having spent a lot longer than any UKBA official or judge with the client. Of course, where a judge makes positive findings then as that person’s lawyer I will rely on them. Where a judge makes negative findings, as that person’s lawyer I will seek to find a way to challenge those findings.

      Where exactly is the hypocrisy there? And why is it so ‘jaw dropping’? It is a bit irritating to be accused of hypocrisy with no basis, and this is arguably a better example of dictionary-definition hyperbole.

      If your comment seeks to assert that there is nothing to worry about because of this gross and potentially very dangerous breach of confidentiality, we will just have to agree to disagree. I have no idea whether this is a one off mistake, whether the particular official who did this misunderstands their responsibilities and has done this in other cases or whether in fact the Home Office always disclose asylum papers to the authorities of the home state when an asylum seeker has been found to by lying. Any of those are pretty worrying. And I certainly do not trust the Home Office. There are too many examples of unlawful behaviour, sometimes even deliberate deception, that have eventually been exposed by the courts.

      Lastly, why on earth would Shivani have mentioned the end of the civil war or the latest CG case? Why is it relevant to the post? This is a blog, not a COIS report. The blog is not and does not purport to be a balanced source of country information, it just contains opinion and links. I struggle to see why the HOPOs who do sometimes leave comments here take such issue with the contents of the blog. The case against asylum seekers is really quite well articulated in the mainstream media, I have noticed. If you are seeking to suggest that a positive case should not be made or that concerns about the operation of the immigration and asylum system should not be articulated in what is basically an insignificant, specialist little legal blog then, again, we will have to agree to disagree.

    2. FM, a post which I agree with. I think the reason why some POs take issue with this blog is that the criticsms are overly harsh and sometimes downright false or inaccurate. Also, posts like that put up by Julian only serve to compound matters.

      There is another blog which POs post on more often and it gives the other side though I would say it is equally as unbalanced as this blog (though I accept you don’t aim to make this blong objective and balanced). I suppose it would be nice to have a blog which is somewhere in the middle. Perhaps someone could take that up….

    3. I’d be interested to read this other blog and try to find a balance for myself. Can you give me a link? I’m not sure that a ‘third way’ necessarily exists. Blogging is perhaps an extension of the adversarial process?

    4. If you approach credibility findings from the premise that an overzealously high standard of proof is applied, then it is perfectly sensible to view positive findings as reliable (they must be REALLY credible to meet such a high standard) whilst seeing negative ones as tenuous (as the standard is too high).

      Then again, I don’t expect basic logic from a PO. ;)

  5. I understand that the details of the charter are now confirmed. This is an en masse removal as the blog originally stated, not a mass deportation as has been described elsewhere. The civil war may be over but has ‘an evaluation of the durability of changes taking into account the way the changes had occurred or are occurring, the nature of the changes, the overall political climate of the country, the effects of the change on the government and on its ability to fortifying the changes and restore stability? Paraphrased from http://www.unhcr.org/refworld/pdfid/3c06138c4.pdf and, yes I know that the cessation clause applies to refugees not failed asylum seekers but it is contended that the breach of confidentiality and the en masse removal has created refugee sur place of some or all of those being removed.

  6. I am shocked at this, there is no excuse for it PO whether you work for the HO or not. Appalling.

  7. As for an enquiry, Siobhain McDonagh MP attempted to debate the issue in the House of Commons yesterday. Mr Deputy Speaker (Mr Lindsay Hoyle) ruled that, “I have listened carefully to what the hon. Lady has said. I have to give my decision without stating any reasons. I am afraid that I do not consider that the matter she has raised is appropriate for discussion under Standing Order No. 24. I cannot therefore submit the application to the House. ” The MP did succeed in making a lengthy statement http://bit.ly/mOC1WZ She said (inter alia), “The British Government are supposed to be one of the leading forces in the Commonwealth, yet they are not only turning a blind eye but sending plane-load after plane-load of Tamils back. They are taking no measures to monitor them, and Sri Lanka does not allow any journalists or independent observers. The people on these planes, such as [her constituent], have identified themselves as Tamils and as being against the Sri Lankan Government. Britain is flying them on specially chartered flights; it is not as though they are arriving incognito. Even worse, UKBA has shared documents about these passengers with the Sri Lankan authorities. We might as well paint targets on their backs. To me, it is obvious that Tamils have a reason to fear for their safety in Sri Lanka; given the emergence of yet more evidence of atrocities, how could they be safe?” You note that I have not named the MP’s constituent. Naming was in my view foolhardy whether or not consent was obtained to do so.