The European Court of Human Rights gives its judgement in the case of NA v. United Kingdom: the expulsion of the applicant to Colombo would constitute a violation of Article 3, the prohibition of inhuman or degrading treatment, of the European Convention on Human Rights. In the Court’s view, both the assessment of the risk to Tamils of certain profiles and the assessment of whether individual acts of harassment cumulatively amounted to a serious violation of human rights could only be done on an individual basis.
NA. V. The United Kingdom, Press release, European Court of Human Rights, 17 July 2008.
The applicant was born in 1975 in Sri Lanka. He currently lives in London. He is an ethnic Tamil. He entered the United Kingdom clandestinely on 17 August 1999 and claimed asylum the next day on the grounds that he feared ill-treatment in Sri Lanka by the Sri Lankan army and the Liberation Tigers of Tamil Eelam (LTTE). … He explained that he had been arrested and detained by the army on six occasions between 1990 and 1997 on suspicion of involvement with the Tigers. … He feared the Tigers because his father had done some work for the army. They had also tried to recruit him on two occasions in 1997 and 1998. …
The risk to Tamils returning to Sri Lanka
It was accepted by the parties to the case that there had been a deterioration in the security situation in Sri Lanka. However, the United Kingdom authorities, while recognising this deterioration and the corresponding increase in human rights violations, had not concluded that this created a general risk to all Tamils returning to Sri Lanka. Nor had the applicant in the present case sought to challenge that conclusion in his submissions. The Court saw no reason to reach a different conclusion.
Moreover the Court also found that the United Kingdom authorities had given serious and anxious consideration to the risk to Tamils returning to Sri Lanka. They had examined all the relevant objective evidence and, just as importantly, considered the appropriate weight to be given to it.
In the Court’s view, both the assessment of the risk to Tamils of certain profiles and the assessment of whether individual acts of harassment cumulatively amounted to a serious violation of human rights could only be done on an individual basis.
It was moreover in principle legitimate, when assessing the individual risk to returnees, to carry out that assessment on the basis of the list of “risk factors”, which the United Kingdom authorities, with the benefit of direct access to objective information and expert evidence, had drawn up.
The assessment of whether there was a real risk had to be made on the basis of all relevant factors which might increase the risk of ill-treatment. It was also possible that a number of individual factors which when they were considered separately did not constitute a real risk might, when taken cumulatively and when considered in a situation of general violence and heightened security, give rise to such a real risk.
The Court found that the information before it pointed to the systematic torture and ill-treatment by the Sri Lankan authorities of Tamils who would be of interest to them in their efforts to combat the Tamil Tigers.
In respect of returns to Sri Lanka through Colombo, the Court also found that there was a greater risk of detention and interrogation at the airport than in Colombo city. Hence the Court’s assessment of whether a returnee was at real risk of ill-treatment might turn on whether that person would be likely to be detained and interrogated at Colombo airport as someone of interest to the authorities. As regards the procedures followed at Columbo airport, the Court considered that at the very least the Sri Lankan authorities had the technological means and procedures in place to identify at the airport failed asylum seekers and those who were wanted by the authorities.
The risk to the applicant
As regards the alleged risk to the applicant from the Tamil Tigers, the Court accepted the domestic authorities’ assessment that while there might be a risk to Tamils in Colombo from Tamil Tigers, this would be only to Tamils with a high profile as opposition activists, or those seen as renegades or traitors. The applicant would therefore not be at real risk of ill-treatment contrary to Article 3 by the Tigers if returned to Colombo.
In assessing the applicant’s position in relation to the Sri Lankan authorities, the Court examined the strength of the applicant’s claim to be at real risk as a result of an accumulation of the risk factors identified by the domestic authorities. However, compared with the last factual assessment made by the national authorities, it did so in the light of more recent developments and in particular having due regard to the deterioration of the security situation in Sri Lanka and the corresponding increase in general violence and heightened security. In addition it took a cumulative approach to all possible risk factors identified by the applicant as applicable to his case. …
In conclusion, the Court took note of the current climate of general violence in Sri Lanka and considered cumulatively the factors present in the applicant’s case. In the light of its finding that those considered by the authorities to be of interest in their efforts to combat the Tigers were systematically exposed to torture and ill-treatment, it took the view that there was a real risk that the authorities at Colombo airport would be able to access the records relating to the applicant’s detention. If they did so, when taken cumulatively with the other risk factors identified by the applicant, it was likely that he would be detained and strip-searched. This in turn would lead to the discovery of his scars. On this basis, the Court found that there were substantial grounds for finding that the applicant would be of interest to the Sri Lankan authorities in their efforts to combat the Tigers. In those circumstances, the Court found that at the present time there would be a violation of Article 3 if the applicant were to be returned.