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More on breach of asylum confidentiality
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Further to Shivani’s last post on this, the numbers facing removal on the charter flight to Sri Lanka are lower than originally thought, although it still constitutes a mass removal. Evidence of other breaches of confidentiality in Sri Lankan asylum cases is emerging. These could be isolated mistakes or there could be another explanation. It certainly seems to be the case that the Sri Lankan High Commission is very interested in Tamil returnees from the United Kingdom.
Channel 4 is showing a film on war crimes in the Sri Lankan conflict, Sri Lanka’s Killing Fields, tonight at 11.05pm. I’m told there will be an interview with one of the UK detainees (see below) before the film is shown. The films sounds like harrowing but essential viewing.
Further evidence is being collated. If you have anything relevant, contact Karim Assaad at Ravi Solicitors.
The law prevents the transmission of any information that discloses that a person has claimed asylum. Section 13 of the Immigration and Asylum Act 1999 provides as follows:
13 Proof of identity of persons to be removed or deported.
(1) This section applies if a person—
(a) is to be removed from the United Kingdom to a country of which he is a national or citizen; but
(b) does not have a valid passport or other document establishing his identity and nationality or citizenship and permitting him to travel.
(2) If the country to which the person is to be removed indicates that he will not be admitted to it unless identification data relating to him are provided by the Secretary of State, he may provide them with such data.
(3) In providing identification data, the Secretary of State must not disclose whether the person concerned has made a claim for asylum.
(4) For the purposes of paragraph 4(1) of Schedule 4 to the Data Protection Act 1998, the provision under this section of identification data is a transfer of personal data which is necessary for reasons of substantial public interest.
(5) “Identification data” means—
(a) fingerprints taken under section 141; or
(b) data collected in accordance with regulations made under section 144.
(6) “Removed” means removed as a result of directions given under section 10 or under Schedule 2 or 3 to the 1971 Act.
UNHCR’s guidelines clearly state that unrestricted access to immigration files should not be permitted and that an asylum seekers’ personal data should be treated with the utmost confidentiality and should not released to third parties who may use such information for purposes incompatible with international human rights law.
The Home Office in its Asylum Policy Instructions explains to asylum seekers that
“the information you give us will be treated in confidence and the details of your claim will not be disclosed to the authorities of your own country.”
This statement is reinforced by section 27.2 of the Operational Enforcement Manual which indicates that immigration staff should
“not disclose the fact that an asylum application has been made to the passport issuing authorities of the applicant’s country of origin (care should be taken that any correspondence makes no mention of the word asylum, either in the text or as part of the letterhead/address)”
The examples of breaches of confidentiality collated so far are as follows:
PP: Case One
Prior to hearing of his appeal by the SSHD in December 2009, PP was required to attend the Sri Lankan High Commission for an Emergency Travel Document interview. He was required to carry with him an envelope containing documentation provided by Immigration which was to be handed to the High Commission. When he arrived, he was interviewed. The High Commission, having looked at the documentation, started questioning PP about his brother’s membership of the LTTE. PP was very concerned at the questioning conducted and why and that this information appeared to be taken from a document contained in the envelope. Once his interview was completed, he attended the Home Office and requested an interview with the caseworker. At that interview, a copy of which has never been provided, he complained about what had happened at the High Commission.
This was followed up with correspondence to the caseworker who initially ignored the request for information and explanation. This matter was pursued further and correspondence was also directed to her manager. There was a request that the caseworker attend the hearing to explain herself. However, she stated that she would not be doing so. PP’s solicitors notified the caseworker and manager that they would be putting all their correspondence before the Immigration Judge and that they were extremely concerned at the breach of confidentiality that had taken place.
Eventually, at 5.30pm the night before the hearing, the SSHD faxed a letter to the solicitors and to the court notifying them that they had decided to withdraw the decision refusing asylum. On the morning of the hearing, PP’s barrister spoke to the manager directly who stated that she could not indicate how long it would take for a further decision and the breach of confidentiality was not considerable given that it was the PP’S claim that his brother who was a member of the LTTE and not PP himself. It was pointed out that the dangers were considerable to those family members who remained in Sri Lanka, particularly those in IDP camps.
PP was recognized as a refugee by the SSHD in 2010
KS: Case Two
This is a case which concerned an Appellant, who is a Sri-Lankan national born on 20 October 1976. Having arrived in the UK on 13 June 2009, the Appellant claimed asylum two days later on 15 June 2009. The claim for asylum was refused by the UKBA on 13 July 2009 and the appellant was made the subject of administrative removal. The appellant was detained at Oakington Barracks but subsequently released.
The appellant’s appeal against the decision to refuse his claim for asylum was refused but subsequently allowed on appeal by an Immigration Judge on 10 May 2010, on the basis of accepted evidence set out below:
(i) The Appellant was detained by the Home Office on the 19th of February 2006, when they conducted a raid on his premises. He was woken by officers in the early hours of the morning. He was questioned by the officers and subsequently detained. The officers searched his room and took a file belonging to him which the Appellant had kept in a cupboard. That file contained, inter alia, the Appellant’s birth certificate, identity card and a photograph of his sister in LTTE clothing, together with a letter confirming that his sister had been involved with the LTTE. The Appellant witnessed the officers place the documents into a bag.
(ii) When the Appellant was finally removed from the UK on the 20th of June 2006, he was handed an envelope as he boarded the plane. He was not informed of the contents of the envelope and simply assumed it contained his travel document.
(iii) Upon his arrival at Colombo airport, the Appellant was stopped at immigration control and searched. When immigration control found in the Appellant’s possession, the sealed envelope, they located the LTTE letter and photograph of his sister. The Appellant was questioned about these documents to which he responded he was given them by the UK Government.
(iv) The Appellant was allowed through immigration control but was followed and outside the airport, bundled into an army van and assaulted by army officers. He was subsequently removed to an army camp where he was further subjected to interrogation over the photograph and the LTTE letter found in his possession. He denied any knowledge and said he had been handed the envelope whilst boarding the plane.
(v) The Appellant then confessed that it was his sister who featured in the photograph and that he himself had worked for the LTTE in an administrative role up to 1999. He informed the officers that his sister was deceased but they did not believe him. He was subjected to regular incidents of torture, involving, inter alia, cigarettes burns on his body and cuts made to his testicles. This systematic torture continued for a period of 6 months, before the Appellant was transferred to Boosa Prison where he remained for the next two and half years.
(vi) Subsequently, the Appellant managed to escape and was able to travel to the UK using a false identity for his protection and subsequently claimed asylum once again.
(vii) The Appellant then claimed asylum once again on his arrival to the UK and his appeal was heard before an Immigration Judge sitting in the Immigration Tribunal Upper Tier on 10 May 2010 who made findings that the appellant was credible and had satisfied the burden of proving his flagrant risk on return to Sri-Lanka.
(viii) The Immigration Judge allowed the Appellant’s appeal stating
“The appellant’s evidence given in interview over many hours was of the most compelling nature. The level of intimate knowledge of the matter he was asked about was highly detailed and suggested someone to who indeed undergone the experiences claimed. I highlight for example, his detailed description of torture using pins on his testicles and chilli powder.”
SV: Case Three
SV is held at Colnbrook IRC. He saw the copies of his asylum interview with the Sri Lankan High Commission official at the documentation interview. Removal directions are set for 16 June 2011. The interview record was handwritten in large script and therefore possible to identify.
SS: Case Four
SS is held at Yarlswood Detention Centre. She had her documentation interview at Colnbrook IRC on 5/5/11 and noticed that the Sri Lankan High Commission official had with her the copies of her asylum interview. The interview record was handwritten in large script and therefore possible to identify. Her removal was set for the 16 June 2010 but has been deferred as a result of a legal challenge.
XT: Case Five
This case has already been highlighted on the blog.
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.
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.
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’.
TS: Case Six
TS was interviewed on 14 June 2011. He is currently detained at Brookhouse Detention Centre, Gatwick. He is due to be removed to Sri Lanka on 16 June 2011 at 17:00hrs on flight PVT3030. The circumstances of his case are:
He is a failed Asylum Seeker and was interviewed by Sri Lankan High Commission on 10th of April 2011. He was asked for his name and address and for the terms of his asylum claim. He responded that he had already informed the Home Office in relation to his case. They demanded to know the intricate details of his asylum claim.
JT: Case Seven
JT is currently being detained at Yarlswood. She was interviewed at the end of May 2011 for the purposes of obtaining emergency travel documentation. During the interview she was asked direct questions relating to her brother’s suspected involvement with the LTTE, which she answered. Inter alia, she was asked for her brother’s current whereabouts and whether or not she is in contact with her brother. She is due to be removed to Sri-Lanka on 16th June 2011 at 17:00hrs on flight PVT3030. JT has expressed her fear of being killed on return to Sri-Lanka.
According to new Sri Lankan Immigration Regulations Sri Lankan citizens who have applied and gained refugee status or asylum in the UK are not entitled to a Sri Lankan passport nor to renew validity of their existing passports with immediate effect.
However, temporary travel documents will be issued to the following categories of Sri Lankans for the sole purpose of returning to Sri Lanka.
1. Those who have applied for refugee or asylum status and awaiting decision of the UK government.
2. Those who have applied for refugee or asylum status but have subsequently withdrawn their applications.
3. Those who have given up their refugee or asylum status and have decided to return to Sri Lanka.
4. Those whose applications for asylum or refugee statues have been rejected by the UK government in which such status has been sought.
The SLHC website shows that clearance is required from the Ministry of Defence in order to visit the North and police clearance is required in order to reside in Colombo. The application for police clearance requires a person to list all the places of previous residence which will be problematic if returnees came from or resided in former LTTE territories or worked with the LTTE.
It would appear that in order to effect removal of FAS on emergency travel documents, the SLHC undertakes security clearance examinations as a matter of course. There is a specific application form that has to be filled in order to travel to the North with MOD clearance and there is a specific form seeking police clearance to reside in Sri Lanka. This maybe why the UKBA is under pressure to handover asylum related documents to the SLHC. However, the practice is unlawful and aggravates risk on return.
Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.
Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.