In another development that would be shocking were we not so used to it by now, it has emerged that the Home Office has a secret policy not to return Tamils to Sri Lanka. This policy has existed since 25 April 2009 at least, which is the date of the last enforced return to Sri Lanka. The reason for the policy must be that the Home Office is concerned about the treatment of returned Tamils in the aftermath of the civil war. It would be interesting to know how far UKBA’s hands were tied by the Foreign and Commonwealth Office, which has taken a strong line on human rights abuses in Sri Lanka.

This non-return policy is ENORMOUSLY significant for two reasons:

1. The Home Office concedes that there is a risk on return in all Tamil asylum claims. This must be the case, as otherwise the policy would not exist. My guess is that HOPOs who have been vigorously arguing that it is perfectly safe for Tamils to go back to Sri Lanka have not been told that the official UKBA position is in reality that it is not safe. HOPOs have been misleading the tribunal and the courts, albeit I imagine inadvertently. There is past form for this. In the Rashid case it emerged that there was a secret policy about Iraqi asylum claims that was so secret that lots of people at the Home Office didn’t know about it. That was held to be unlawful and an abuse of power.

2. Any Tamils in detention since 25 April 2009 have probably been detained unlawfully and are entitled to compensation. Where there is no prospect of removal, it is not lawful to detain. If removals are suspended and there is no date for resumption of removals, UKBA cannot realistically claim that there is a prospect of removal.

As ever, this news emerges through a legal challenge in the courts. It underlines the importance of UKBA accountability to the proper courts, as opposed to the tribunal. The case is currently identified as R (on the application of B) v Secretary of State for the Home Department [2009] EWHC 2273 (Admin) but hasn’t at the time of writing appeared on BAILII. Detention in this case was held to be unlawful since 6 May 2009, when the claimant lodged an appeal, and the case has been transferred to the county court for the assessment of damages. Very substantial damages are likely to be awarded.

There is also reference in the judgment to a test case on Sri Lanka coming up in the tribunal in October.

Very good work indeed by the excellent Hugh Southey and Refugee and Migrant Justice.