A long awaited and much needed new Country Guidance cases has finally been issued by the Upper Tribunal: GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC). One of the three appellants succeeded on refugee grounds – congratulations to the legal team behind that result, my colleagues at Renaissance Chambers Shivani Jegarajah and Iain Palmer and to Patricks Solicitors.

Renaissance Chambers are hosting a seminar about the case this coming Friday 12 July 2013 at 5.45pm for a 6pm start at the Bingham Room at Gray’s Inn. Speakers are Shivani Jegarajah, Iain Palmer, Dr Chris Smith and Jan Jananayagam. There will be a drinks reception afterwards. All comers very welcome.

The determination is certainly long. The hearing took nine days and the tribunal heard oral evidence from 12 expert witnesses as well as receiving reports from several others. 5,000 pages of relevant country information was also considered. Reading and assimilating that quantity of evidence was a huge and difficult undertaking. How did the tribunal do?

Findings on risk

The new case replaces all previous Country Guidance on Sri Lanka.

For human rights campaigners interested in Sri Lanka, the case is a huge step forward. The tribunal concludes that the Sri Lankan government is intent on ‘intensive militarisation and Sinhalisation of former Tamil areas’, that anyone perceived to be a threat to the unitary state of Sri Lanka is at risk, as are human rights activists or journalists perceived to be critical of the Government of Sri Lanka and witnesses to potential war crimes at the bloodbath at the close of the conflict in 2009.

The tribunal finds that the LTTE has entirely ceased to exist and the main threat to the Government of Sri Lanka and the unitary Sri Lankan state is from the diaspora outside Sri Lanka. The Sri Lankan government is found to use sophisticated monitoring and intelligence gathering both inside and outside Sri Lanka to identify threats and is considered to be particularly interested in monitoring activity in the Tamil diaspora using informers, filming and face recognition software.

Detention in Sri Lanka is found by the tribunal always to give rise to a reasonable degree of likelihood of torture. Prolonged detention under the controversial ‘rehabilitation’ process was accepted of itself to be persecutory in nature even without any evidence of physical or sexual abuse. Internal relocation is not possible for government targets now that the government controls the whole territory of Sri Lanka.

Old myths

The determination also very usefully lays to rest some old myths.

There are in fact no detention facilities at the airport, which combined with the presence of international officials and many members of the public, means there is very little risk of a target being picked up by the authorities at the airport. Instead, where there is an interest in an individual he or she will be picked up in their home area, having been identified during the return process and having to have provided a return address as well.

Importantly, the tribunal accepts (this was in fact conceded by the Home Office) that corruption is so endemic that being able to pass through the airport on the way out of Sri Lanka cannot be taken as a sign of lack of interest in that individual by the authorities.

Expert evidence

Despite the positive outcome, criticism can be made of the approach adopted by the tribunal to some of the expert evidence and the individual experts.

The tribunal effectively closed its eyes to anonymous evidence of human rights abuses. This cannot be right. Almost all human rights reports are anonymous where they do not rely on public media reports, which tend to be most thin on the ground in the most repressive countries. One can see why the Home Office might ask for individual details in order to ‘verify’ examples given, but unfortunately so likewise do the governments of Iran, Burma and indeed Sri Lanka. Further, in these specific proceedings the Home Office implicitly threatened to re-open cases used as examples by suggesting that the individual immigration judges might have been unaware of all the relevant evidence. Human rights reporting organisations simply cannot hand over such information as a matter of principle. The tribunal risks ignoring the best quality of evidence available to it, which is unnecessary in a flexible jurisdiction like that of the immigration tribunal.

The treatment of some of the individual experts is also open to criticism. Omitting to produce a minute of Skype calls hardly seems reason to attach less weight to the evidence of a reputable academic whose other evidence is accepted. The tribunal refuses to engage with detailed and laborious quantitive analysis but without really explaining why.

The most troubling part of the determination accuses an extremely well known international NGO and others of manipulation and bad faith in the timing of human rights reports. Given that the very task of a human rights monitoring and campaigning body is to respond to human rights abuses (which is what Sri Lankan charter flights were feared to be – abuses carried out by the UK government), this criticism seems rather odd and, frankly, rather threatening in tone. Should Amnesty International (not the NGO concerned) stop issuing Urgent Actions and instead issue Awfully Well Balanced Advance Warnings Of Possible Problems Ahead? It wouldn’t be a terribly good way of campaigning on or highlighting human rights abuses.

The same NGO is essentially accused by the tribunal of lying to it, a highly regrettable comment which is procedurally problematic and simply unnecessary. The NGO was not a party, was nobody’s witness and had no representation in the case, deceit was not suggested by any party, was never put to the NGO and was irrelevant to the contents of the evidence in any event. Such process and comments could do regrettable damage to reputation.

Where does this leave us?

The determination marks the death of the ‘risk factors’ approach adopted in the old LP case. In theory the risk factors were helpful and if properly applied they would be a very useful guide to any decision maker or judge. They were explicitly said in LP not to be a ‘checklist’, but that is unfortunately how they were treated in practise. Intelligent and careful analysis of each case on its own facts gave way to an attempt to shoehorn a claimant into a slipper that did not fit. Solicitors and counsel could be just as guilty as the Home Office and tribunal. This simplistic Cinderella-style approach to fact finding makes for a good fairytale but it is not a good way to identify risk in a complex real world environment. More nuanced fact gathering and presentation will be necessary in future.

The approach adopted in this case to human rights reporting is genuinely damaging to international human rights monitoring. Repressive and unpleasant regimes might be expected to reject human rights reports on the basis that personal details of complainants were not revealed for ‘verification’, but it is surely not the right approach for a specialist immigration and asylum tribunal.

Ultimately, though, this should not be allowed to detract from what amounts to a well informed and devastating record of post-conflict Government of Sri Lanka treatment of Tamils in the north and east of that country and an exposé of that Government’s obsession with the international Tamil diaspora.

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.

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