ITEMID: 001-22814
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: PETERSEN v. GERMANY
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Jürgen Petersen, is a German national who was born in 1946 and lives in Berlin. He was represented before the Court by Mr H. Meyer-Dulheuer, a lawyer practising in Berlin.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is a history graduate (Diplomhistoriker) who obtained his degree in 1971 and had been a lecturer in modern history at Humboldt University in Berlin, in the German Democratic Republic (“the GDR”), since 1988.
He obtained his teaching certificate (Lehrbefähigung) and the qualification Doctor Scientiae after writing two theses, which were not published.
The first thesis was completed in 1978 and was entitled “The creation of a State-monopolised research and development policy in the FRG (Federal Republic of Germany), particularly in the 1950s. A study of the relationship between scientific and technological research and development in the non-university civilian sphere and its military use in the FRG from a historical perspective. Selected problems and facts” (“Herausbildung einer staatsmonopolistisch orientierten Forschungs- und Entwicklungspolitik in der BRD, insbesondere in den fünfziger Jahren. Eine Studie zum Verhältnis von ziviler ausseruniversitärer wissenschaftlich-technischer Forschung und Entwicklung und militärischer Nutzung in der BRD in historischer Sicht. Ausgewählte Probleme und Fakten”).
The second was completed in 1986 and was entitled “The CDU [Christlich Demokratische Union – the Christian Democratic party in the FRG] and the conception of the social market economy from 1945 to 1949. The influence of neo-liberal ideas on the development of the programme of economic restoration in the western zones” (“Die CDU und die Konzeption der sozialen Marktwirtschaft 1945-1949. Zum Einfluss neoliberaler Vorstellungen auf die Entwicklung der restaurativen Wirtschaftsprogrammatik in den Westzonen”).
After the reunification of Germany, and in accordance with the relevant provisions of the Treaty of 31 August 1990 on German Unification (Einigungsvertrag – Articles 13 and 20 § 1 taken together with Article 1 §§ 1-3 of Annex I, Chapter XIX, Subject A, Section III – see “Relevant domestic law and practice” below), the applicant was incorporated into the civil service of the Land of Berlin and worked in the fields of philosophy and history at the Institute of History, Humboldt University, Berlin.
After reunification, in order to carry out the necessary restructuring and rationalisation of the university’s staffing arrangements, structure and appointments boards (Struktur- und Berufungskommissionen) were set up. The purpose of the Structure and Appointments Board for the history department was to draw up opinions for the university’s Central Personnel Committee (Zentrale Personalkommission) as to whether the department’s researchers should have their contracts of employment renewed.
On 15 November 1991 the Structure and Appointments Board for the history department – comprising three university lecturers from outside the GDR, three lecturers from Humboldt University, a research assistant and a student from the university – interviewed the applicant.
Six members of the Board were present at the interview, two of the lecturers from Humboldt University being absent.
On 14 February 1992 the Board, by four votes with two abstentions, recommended to the Humboldt University management that the applicant be dismissed.
On 17 February 1992 Mr Schulze, a lecturer in the history faculty of Bochum University and a member of the Board, submitted the final version of his expert assessment of the applicant’s professional qualifications, which was based entirely on the two theses written by the applicant during the time of the GDR. Mr Schulze considered that the first thesis owed more to political analysis than to historical research. The second thesis, in his opinion, did not contribute anything new to contemporary understanding of its subject matter: the early history of the CDU and its economic ideas. In particular, the thesis did not include a comparison with the relevant literature published in the FRG – an essential component of a study of that nature – and merely cited the publications in question.
The expert concluded that, in view of the fact that the theses concerned a very narrow aspect of the post-war history of the FRG, that the applicant had published scarcely anything else in the meantime and that his unpublished work did not provide any convincing evidence of his ability to produce critical work as a historian, the applicant’s continued employment in the civil service was unjustifiable (nicht vertretbar) on account of his lack of professional qualifications.
In a letter of 19 February 1992 the Chairman of the Board recommended to the Rector of Humboldt University that the applicant be dismissed on the ground of his lack of professional qualifications.
On 7 January 1993, following a further interview with the applicant and a process of written consultation, the Board, now chaired by Mr Schulze, confirmed its previous vote.
On 20 January 1993 the Central Personnel Committee of Humboldt University decided to refuse the applicant’s application for incorporation and to terminate his contract of employment with effect from 30 June 1993 on the ground of his lack of professional qualifications.
On 7 April 1993, further to the Board’s recommendation and after consulting the Staff Council, the Dean of Humboldt University dismissed the applicant with effect from 30 June 1993 under Article 20 of the Unification Treaty, taken together with Article 1 § 4 of Annex I, Chapter XIX, Subject A, Section III (see “Relevant domestic law and practice” below).
In a judgment of 2 December 1993 the Berlin Labour Court (Arbeitsgericht) allowed an appeal by the applicant on the grounds, inter alia, that the Structure and Appointments Board had not been properly constituted, that the final version of the expert assessment had not been ready at the time of the vote and that Mr Schulze had acted both as an expert and as Chairman of the Board.
In a judgment of 13 June 1994 the Berlin Regional Labour Court (Landesarbeitsgericht) set aside the judgment at first instance and held that the applicant’s dismissal had been justified under section 1(2) of the Unfair Dismissal Act (Kündigungsschutzgesetz – see “Relevant domestic law and practice” below), in that it was indisputable that he lacked the requisite professional qualifications.
The Regional Labour Court held that Humboldt University had concluded in a persuasive manner, on the basis of Mr Schulze’s expert assessment and additional observations, that the applicant lacked the necessary professional qualifications. The fact that by 1994 the applicant had not published any other academic work to compensate for the shortcomings of his theses served as further justification for his dismissal. In that connection, the applicant’s argument that he had been prevented from publishing academic work was not convincing, as he had not given any precise reasons for that assertion.
The Regional Labour Court also held that the proceedings before the Structure and Appointments Board had not infringed Berlin’s Administrative Procedure Act (Verwaltungsverfahrensgesetz); moreover, the proceedings before the Board had been of a purely administrative and internal nature and had had no external consequences, as the Board was merely empowered to issue opinions. Accordingly, even if there had been procedural flaws, they would have been inconsequential.
On 27 October 1994 the Federal Labour Court (Bundesarbeitsgericht) refused to entertain an appeal on points of law by the applicant, on the ground that the ordinary courts’ decisions had been consistent with its own case-law and with that of the Federal Constitutional Court (Bundesverfassungsgericht).
The applicant subsequently lodged a constitutional appeal with the Federal Constitutional Court. He argued, firstly, that the Law of 20 August 1992 on extension of the period of applicability for dismissal of civil servants under the Unification Treaty (Gesetz zur Verlängerung der Kündigungsmöglichkeiten in der öffentlichen Verwaltung nach dem Einigungsvertrag – see “Relevant domestic law and practice” below) was unconstitutional, because the civil servants concerned were entitled to expect those provisions to be subject to a time-limit. Secondly, he asserted that Article 1 § 4 of Annex I to the Unification Treaty should be construed as meaning that lecturers could be dismissed only if they had committed specific breaches of their duties (konkrete Pflichtverletzungen). The criteria established in the FRG could not be applied indiscriminately to work carried out on such a delicate topic in the GDR, and if Mr Schulze’s criteria were applied, no historians from the GDR who had worked on the history of the FRG would satisfy them. The actual circumstances in which the applicant had carried out his academic work should have been taken into account. The Regional Labour Court, he argued, should not have been allowed to base its decision solely on the expert assessment produced by the opposing party, as the applicant had thereby been denied any opportunity to state his case. The same was true of the proceedings before the Structure and Appointments Board.
In a judgment of 8 July 1997, and after holding a hearing on 11 and 12 March 1997, the Federal Constitutional Court dismissed the applicant’s appeal and held that the decisions appealed against had not infringed his freedom to engage in an occupation (Berufsfreiheit) or his academic freedom (Wissenschaftsfreiheit).
The Federal Constitutional Court held that there had been interference with the applicant’s freedom to engage in an occupation, but that the interference had been in accordance with the Constitution. Firstly, it had been prescribed by law, as it had been based on the relevant provision of the Unification Treaty and on the Law on the extension of the period of applicability for dismissal of civil servants, enactments which were guided by the public interest and observed the principle of proportionality. In the instant case an extension of the period of applicability had been necessary on account of the numerous practical difficulties encountered in the administration of staff. Secondly, the ordinary courts’ interpretation of the provision in question had not infringed the applicant’s fundamental rights. The provision was also applicable to university lecturers, as scrutiny of their academic ability pursued a public-interest aim. The conditions in which academics had worked in the GDR had been so different from those in the FRG that the qualifications awarded in the GDR were not sufficiently meaningful (nicht hinreichend aussagekräftig).
The Federal Constitutional Court added that in the instant case the Regional Labour Court had taken sufficient account of the applicant’s freedom to engage in an occupation and of his academic freedom. It considered it normal that a lecturer’s qualifications should be assessed on the basis of his or her academic publications. Furthermore, it held that the Regional Labour Court was not open to criticism for having based its decision on the expert assessment and on the lack of any subsequent academic publications by the applicant, either during the time of the GDR or between 1990 and 1994 in the FRG, to compensate for the shortcomings of his theses.
Lastly, the Federal Constitutional Court held that the applicant had had a fair hearing, seeing that the Regional Labour Court had undertaken a thorough examination of his professional qualifications. The fact that that court had not addressed all his arguments did not mean that it had not taken them into account. In any event, the applicant had not specified which of his arguments the Regional Labour Court had failed to take into account.
Section 1(2) of the Unfair Dismissal Act provides:
“A dismissal shall be socially unjustified unless it is based on grounds relating to the employee himself or to his conduct...”
“Sozial ungerechtfertigt ist die Kündigung, wenn sie nicht durch Gründe, die in der Person oder in dem Verhalten des Arbeitnehmers liegen ... bedingt ist.”
Article 13 of the Treaty of 31 August 1990 on German Unification provides that the administrative bodies and other institutions of the civil service in the former territory of the GDR come under the authority of the government of the Land in which they are situated.
Article 20 § 1 of the Unification Treaty provides that persons who were members of the GDR civil service at the time of reunification are subject to the transitional provisions in Annex I.
Article 1 §§ 1-3 of Annex I to the Unification Treaty, Chapter XIX, Subject A, Section III, provides for the incorporation of civil servants from the GDR into the FRG civil service by means of the substitution of the federal authorities and the Länder of the FRG for the GDR authorities in the existing employment relationship.
As members of the GDR civil service belonged to an institution that did not satisfy the criteria of a State based on the rule of law, special provisions on dismissal were included in Article 1 §§ 4-6 of Annex I to the Unification Treaty, Chapter XIX, Subject A, Section III.
Thus, Article 1 § 4 of Annex I to the Unification Treaty, Chapter XIX, Subject A, Section III, provides:
“Ordinary dismissal [with notice] from the civil service is permissible if
(a) the employee does not satisfy the requirements on account of lack of professional qualifications or of personal aptitude, or if
(b) the employee is surplus to the employer’s requirements...”
“Die ordentliche Kündigung eines Arbeitsverhältnisses in der öffentlichen Verwaltung ist zulässig, wenn
der Arbeitnehmer wegen mangelnder fachlicher Qualifikation oder persönlicher Eignung den Anforderungen nicht entspricht oder wenn
der Arbeitnehmer wegen mangelnden Bedarfs nicht mehr verwendbar ist...”
Those regulations were initially intended to apply for a period of two years, but the Law of 20 August 1992 on extension of the period of applicability for dismissal of civil servants under the Unification Treaty (Gesetz zur Verlängerung der Kündigungsmöglichkeiten in der öffentlichen Verwaltung nach dem Einigungsvertrag) extended their validity until 31 December 1993.


ITEMID: 001-104956
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF E.G. v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: No violation of Art. 3
JUDGES: Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 4. The facts of the case, as submitted by the parties, may be summarised as follows.
5. The applicant is a Tamil who was born in 1976 in northern Sri Lanka. He arrived in the United Kingdom on 7 November 2000 and on that date claimed asylum on the ground that he feared persecution by the Sri Lankan army on account of his involvement with the Liberation Tigers of Tamil Eelam (“the LTTE”). He submitted that he had been arrested in 1996, after he had left the LTTE, in a round-up and identified as an LTTE member by a masked man. He was severely tortured during the five days of his detention. He was released after the village headman and his mother intervened, but as a condition of his release he was required to sign on regularly at an army camp.
6. On 7 March 2001 the Secretary of State for the Home Department refused the applicant’s asylum claim. He did not accept that the applicant had been arrested and tortured in 1996 or that he genuinely feared that he would be arrested by the army.
7. The applicant subsequently obtained a medical report which confirmed that he had a number of scars on his scalp, his elbows and his legs caused by shell fragments.
8. On 17 April 2002 the applicant’s appeal against the Secretary of State’s decision was dismissed by an Adjudicator. With no Home Office representative present at the hearing to cross-examine the applicant, his evidence was unchallenged. The Adjudicator therefore accepted that the applicant had been a member of the LTTE and that he had been detained and ill-treated by the army in 1996. The Adjudicator also accepted that the scars were caused by shell fragments as the applicant claimed. She noted, however, that the applicant’s scars were not readily visible and would not cause the applicant to stand out; this was evidenced by the fact that the applicant was able to leave Sri Lanka without difficulty, despite having to travel across the country and through checkpoints, which indicated that he was of no interest to the authorities. With regard to the applicant’s Article 8 rights, the Adjudicator noted that although the applicant had a brother and sister in the United Kingdom, he had been separated from them for eight and twelve years respectively; neither had been present at the hearing; and they could visit the applicant in Sri Lanka should they so wish.
9. On 28 May 2002 the applicant was refused permission to appeal to the then Immigration Appeal Tribunal.
10. The applicant subsequently made further representations to the Home Office, which, in a decision dated 11 May 2006, the Secretary of State refused to treat as a fresh asylum claim. On 9 October 2006 permission to apply for judicial review was refused. Permission was again refused on 19 February 2007 following an oral hearing. On 5 February 2007 the applicant once again submitted further representations. On 16 February 2007 the Secretary of State decided not to treat those representations as a fresh asylum claim. On 21 February 2007 a further application for permission to apply for judicial review was refused.
11. On 10 January 2008 the applicant submitted fresh representations requesting that his case be reconsidered in light of the country guidance determination of LP (LTTE area – Tamils – Colombo – risk?) Sri Lanka CG [2007] UKAIT 00076 (see paragraph 13 below). The Secretary of State responded in a letter dated 27 August 2008 stating that:
“It is accepted that your client is of Tamil ethnicity as claimed. It is not believed that your client was tortured and as such it is doubtful he was a member of the LTTE as claimed”.
12. This reasoning led to the conclusion that the applicant’s only risk factors were his Tamil ethnicity and scarring, which the Secretary of State pointed out only had significance if combined with other factors likely to bring the applicant to the attention of the authorities.
13. In LP (LTTE area – Tamils – Colombo – risk?) Sri Lanka CG [2007] UKAIT 00076 (“LP”), the Asylum and Immigration Tribunal considered the case of a Tamil, LP, from Jaffna in the north of Sri Lanka. He had experienced problems with the LTTE and the Sri Lankan authorities and had fled Sri Lanka on 29 December 1999 but had been refused asylum in the United Kingdom by the Secretary of State. In dismissing LP’s appeal on asylum grounds but allowing it on the basis of Article 3 of the Convention, the Tribunal gave the following guidance in the headnote to its determination:
“(1) Tamils are not per se at risk of serious harm from the Sri Lankan authorities in Colombo. A number of factors may increase the risk, including but not limited to: a previous record as a suspected or actual LTTE member; a previous criminal record and/or outstanding arrest warrant; bail jumping and/or escaping from custody; having signed a confession or similar document; having been asked by the security forces to become an informer; the presence of scarring; return from London or other centre of LTTE fundraising; illegal departure from Sri Lanka; lack of an ID card or other documentation; having made an asylum claim abroad; having relatives in the LTTE. In every case, those factors and the weight to be ascribed to them, individually and cumulatively, must be considered in the light of the facts of each case but they are not intended to be a check list.
(2) If a person is actively wanted by the police and/or named on a Watched or Wanted list held at Colombo airport, they may be at risk of detention at the airport.
(3) Otherwise, the majority of returning failed asylum seekers are processed relatively quickly and with no difficulty beyond some possible harassment.
(4) Tamils in Colombo are at increased risk of being stopped at checkpoints, in a cordon and search operation, or of being the subject of a raid on a Lodge where they are staying. In general, the risk again is no more than harassment and should not cause any lasting difficulty, but Tamils who have recently returned to Sri Lanka and have not yet renewed their Sri Lankan identity documents will be subject to more investigation and the factors listed above may then come into play.
(5) Returning Tamils should be able to establish the fact of their recent return during the short period necessary for new identity documents to be procured.
(6) A person who cannot establish that he is at real risk of persecution in his home area is not a refugee; but his appeal may succeed under article 3 of the ECHR, or he may be entitled to humanitarian protection if he can establish he would be at risk in the part of the country to which he will be returned.
(7) The weight to be given to expert evidence (individual or country) and country background evidence is dependent upon the quality of the raw data from which it is drawn and the quality of the filtering process to which that data has been subjected. Sources should be given whenever possible.
(8) The determinations about Sri Lanka listed in para 229 [of the determination – see below] are replaced as country guidance by this determination. They continue to be reported cases.”
14. Following the Court’s judgment in NA. v. the United Kingdom, application no. 25904/07, 17 July 2008 (see paragraph 67 below), the Asylum and Immigration Tribunal issued two further Country Guideline determinations. The first, AN & SS (Tamils – Colombo – risk?) Sri Lanka CG [2008] UKAIT 00063 (“AN & SS”), was published shortly after NA. and the Tribunal did not have the benefit of the Court’s decision in reaching its conclusions. The Tribunal gave the following guidance in the head note to the determination:
“Since the breakdown of the ceasefire, heightened security in the capital has restricted the operations there of the LTTE, who are focusing on ‘high-profile’ targets. The background evidence does not show that Tamils in Colombo who have stopped supporting the Tigers, or who support parties opposed to them, are at real risk of reprisals, absent some feature bringing them to prominence. The conclusion to that effect in PS (LTTE – internal flight – sufficiency of protection) Sri Lanka CG [2004] UKIAT 297, which this determination updates and supersedes, is thus affirmed.
There is no good evidence that the LTTE maintain a computerized database of their opponents, such that new arrivals in Colombo can be checked against it. Checks are, on the other hand, run on a computerized database by immigration officers when passengers arrive at Bandaranaike International Airport, or by members of the security forces when people are detained, but there is no good evidence to show that everyone who has in the past been detained and questioned about possible involvement with the LTTE is on that database. On the contrary, it is likely to contain the names only of those who are of serious interest to the authorities.
The twelve ‘risk factors’ listed in LP (LTTE area – Tamils – Colombo – risk?) Sri Lanka CG [2007] UKAIT 76 can usefully be divided into risk factors per se, one or more of which are likely to make a person of adverse interest to the authorities, and ‘background factors’, which neither singly nor in combination are likely to create a real risk, but which in conjunction with risk factors per se will intensify the risk.
A failed asylum seeker who hails from the north or east of Sri Lanka and who has no relatives or friends to turn to in Colombo will generally be able to relocate there in safety and without undue harshness. Those arriving without their National Identity Card should be able to get a replacement without too much difficulty, while the great majority of those detained at checkpoints and in cordon-and-search operations are released within a short time. A generous support package is available for five years from the International Organisation for Migration to those who return voluntarily. Those who refuse to do so cannot pray in aid the prospect of being destitute in Colombo.
PR (medical facilities) Sri Lanka CG [2002] UKIAT 4269 is, owing to its antiquity, no longer to be treated as country guidance on the availability of medical treatment for returnees. The guidance in PS and LP, however, has been considered and approved by the European Court of Human Rights in NA v United Kingdom, handed down on 17th July 2008.”
15. In the case of Veerasingham v Secretary of State for the Home Department [2008] EWHC 3044 (Admin), however, the High Court Judge noted that:
“Without seeking to throw any doubt on the decision in AN on its own facts, I reject the defendant’s submission that it forms a general assessment of the factual background dispositive of the outcome in this case, or that a future tribunal would be bound to apply that case as opposed to the assessment of the European Court of Human Rights. The tribunal in AN did not have the benefit of the Strasbourg court’s assessment of risk in such circumstances and the continuity of risk properly assessed in the light of the criteria used in adjudicating Article 3 claims. I am unaware of any tribunal decision that has done so since the AN decision.”
16. In the second, TK (Tamils – LP updated) Sri Lanka CG [2009] UKAIT 00049 (“TK”), the Tribunal found that the risk factors identified in LP and AN and SS (both cited above) were still relevant but that a subsequent country guidance case was necessary to take account of the recent major changes to the country situation in Sri Lanka. In TK, the Tribunal held that:
“The risk categories identified in LP (LTTE area – Tamils - Colombo – risk?) Sri Lanka CG [2007] UKAIT 00076 and approved by the European Court of Human Rights (ECtHR) in NA v UK, App.no. 25904/07, remain valid.
Events since the military defeat of the LTTE in May 2009 have not aggravated the likely approach of the Sri Lankan authorities to returned failed asylum seekers who are Tamils; if anything the level of interest in them has decreased. The principal focus of the authorities continues to be, not Tamils from the north (or east) as such, but persons considered to be either LTTE members, fighters or operatives or persons who have played an active role in the international procurement network responsible for financing the LTTE and ensuring it was supplied with arms.
The records the Sri Lanka authorities keep on persons with some history of arrest and detention have become increasingly sophisticated; their greater accuracy is likely to reduce substantially the risk that a person of no real interest to the authorities would be arrested or detained.
The practice of immigration judges and others of referring to “objective country evidence”, when all they mean is background country evidence, should cease, since it obscures the need for the decision-maker to subject such evidence to scrutiny to see if it conforms to legal standards for assessing the quality of Country of Origin Information (COI) as identified by the ECtHR in NA and as set out in the Refugee Qualification Directive (2004/83/EC), Article 4(1), 4(3)(a), 4(5),4(5)(a) and 4(5)(c) and the Procedures Directive (2005)85/EC), Article 8(2)(a)and (b) and 8(3).”
17. Extensive information about Sri Lanka can be found in NA., cited above, §§ 53-83. The information set out below concerns events occurring after the delivery of the said judgment on 17 July 2008 and, in particular, after the cessation of hostilities in May 2009.
18. Fighting between the Sri Lankan army and the LTTE intensified in early 2009, with the army taking a number of rebel strongholds in the north and east of the country. On 19 May 2009, in an address to the country’s parliament, the President of Sri Lanka announced the end of hostilities and the death of the leader of the LTTE, Velupillai Prabhakaran. It was also reported that most, if not all, of the LTTE’s leadership had been killed.
19. The previous day, the United Nations Office for the Coordination of Humanitarian Affairs had estimated that around 220,000 people had already reached internally displaced persons’ camps, including 20,000 in the last two or three days. In addition, it was believed that another 40,000-60,000 people were on their way to the camps through the crossing point at Omanthai, in the northern district of Vavuniya.
20. In July 2009, the South Asia Terrorism Portal reported that the number of killings in Sri Lanka in the previous three years (including deaths of civilians, security forces and members of the LTTE) was: 4,126 in 2006; 4,377 in 2007; 11,144 in 2008 and 15,549 between 1 January 2009 and 15 June 2009. An estimated 75-80,000 people were reported to have been killed in total over the course of the 26 year conflict.
“Notwithstanding the cessation of the hostilities, the current protection and humanitarian environment in Sri Lanka remains extremely challenging. In the North, nearly the entire population from the territory formerly held by the LTTE in the North (285,000 Tamils) has been confined to heavily militarized camps in the Northern region. Although the government has gradually reduced the military presence in the camps and has pledged to start the progressive return to their villages of origin of the majority of those in the camps, it is clear that this may take a considerable amount of time. The lack of freedom of movement remains the overriding concern for this population restricting its ability to reunite with family members outside the camps, access employment, attend regular schools, and ultimately choose their place of residence.”
22. A Human Rights Watch (“HRW”) press release, dated 28 July 2009, reported that:
“The government has effectively sealed off the detention camps from outside scrutiny. Human rights organizations, journalists, and other independent observers are not allowed inside, and humanitarian organizations with access have been forced to sign a statement that they will not disclose information about the conditions in the camps without government permission. On several occasions, the government expelled foreign journalists and aid workers who had collected and publicized information about camp conditions, or did not renew their visas.”
23. A further HRW press release dated 26 August 2009 set out concerns that more than 260,000 Tamil civilians remained in detention camps without the freedom to leave.
24. In August 2009, the first post-war local elections were held in northern Sri Lanka. The BBC reported that voter turn-out was low due to the number of people who were still displaced. The governing party, the United People’s Freedom Alliance, took the majority of seats in the biggest city in the region, Jaffna. However, the Tamil National Alliance, a party sympathetic to the defeated LTTE, took the majority of seats in Vavuniya, the other town where polling took place.
25. On 7 September 2009, James Elder, the official spokesman for the United Nations Children’s Fund in Sri Lanka was ordered to leave Sri Lanka because of adverse remarks that he had made to the media about the plight of Tamils in the government-run camps.
26. On 10 September 2009 the Sri Lankan Official Government News Portal announced that the motion to extend the State of Emergency (under which the authorities have extensive anti-terrorism powers and heightened levels of security including checkpoints and road blocks) by a further month had been passed by Parliament with a majority of 87 votes.
27. In a report dated 22 October 2009, the United States of America State Department published a report entitled “Report to Congress on Incidents During the Recent Conflict in Sri Lanka”, which compiled incidents from January 2009, when the fighting intensified, until the end of May 2009. Without reaching any conclusions as to whether they had occurred or would constitute violations of international law, it set out extensive reports of enforced child soldiers, the killing of captives or combatants trying to surrender, enforced disappearances and severe humanitarian conditions during the hostilities.
28. On 21 November 2009, the Sri Lankan Government announced their decision that all internally displaced persons would be given freedom of movement and allowed to leave the detention camps from 1 December 2009.
29. In its Global Appeal 2010-2011, the UNHCR reported that:
“The Government-led military operations in northern Sri Lanka which ended in May 2009 displaced some 280,000 people, most of whom fled their homes in the last few months of the fighting. The majority of these internally displaced persons (IDPs) now live in closed camps in Vavuniya district, as well as in camps in Mannar, Jaffna and Trincomalee. An additional 300,000 IDPs, some of whom have been displaced since 1990, are also in need of durable solutions.
The IDPs originate mainly from the Mannar, Vavuniya, Kilinochchi, Mullaitivu and Jaffna districts in northern Sri Lanka, as well as from some areas in the east of the country. Though the end of hostilities has paved the way for the voluntary return of displaced people, some key obstacles to return remain. For instance, many of the areas of return are riddled with mines and unexploded ordnance. Not all are considered to be of high risk, particularly those away from former frontlines, but mine-risk surveys and the demarcation of no-go areas are urgently needed.
Other key obstacles to return include the need to re-establish administrative structures in areas formerly held by the Liberation Tigers of Tamil Eelam; the destruction or damaged condition of public infrastructure and private homes; and the breakdown of the economy - including agriculture and fisheries.
The Government of Sri Lanka is planning the return framework, and it has called on UNHCR for support with return transport, non-food items, return shelter, livelihoods support and assistance in building the capacity of local authorities.
With some progress having been recently achieved, it is hoped that a substantial number of IDPs will be able to return to their places of origin in the latter half of 2009, but a large portion of new IDPs are also likely to remain in the camps and with host families until well into 2010.”
30. In a Human Rights Report 2009, dated 11 March 2010, the United States of America State Department stated that the Sri-Lankan Government accepted assistance from NGOs and international actors for the IDP camps but management of the camps and control of assistance were under the military rather than civilian authorities. Food, water, and medical care were all insufficient in the first few weeks after the end of the war, but by July the situation had stabilised and observers reported that basic needs were being met. In June the military withdrew from inside the camps but continued to provide security around the barbed wire-enclosed perimeter. The IDPs in the largest camp, Manik Farm, were not given freedom of movement until December, when a system of temporary exit passes was implemented for those who had not yet been returned to their districts of origin. Some observers said that this exit system still did not qualify as freedom of movement.
31. The United Kingdom Border Agency Country of Origin Information Report on Sri Lanka of 11 November 2010 (“the November 2010 COI Report”) stated as follows:
“4.23 The International Crisis Group (ICG) report Sri Lanka: A Bitter Peace, 11 January 2010, also referred to ‘extra-legal detention centres’ maintained by the military and observed: ‘These detained have had no access to lawyers, their families, ICRC or any other protection agency, and it is unclear what is happening inside the centres. In addition, the grounds on which the ex-combatants have been identified and the legal basis on which they are detained are totally unclear and arbitrary’. Given the well-established practice of torture, enforced disappearance and extra-judicial killing of LTTE suspects under the current and previous Sri Lankan governments, there are grounds for grave concerns about the fate of the detained. The government has announced that of those alleged ex-combatants currently detained, only 200 will be put on the trial; most will be detained for a further period of ‘rehabilitation’ and then released.”
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4.25 Referring to the ‘at least 11,000 people’ detained ‘in so-called ‘rehabilitation centers’ because of their alleged association with the LTTE, the HRW document Legal Limbo, The Uncertain Fate of Detained LTTE Suspects in Sri Lanka, released on 29 January 2010, observed: “The government has routinely violated the detainees’ fundamental human rights, including the right to be informed of specific reasons for arrest, the right to challenge the lawfulness of the detention before an independent judicial authority, and the right of access to legal counsel and family members. The authorities’ consistent failure to inform families of the basis for the detainees’ arrest and their whereabouts raises serious concerns that some detainees may have been victims of torture and ill-treatment, which are more likely to take place where due process of law is lacking and which have long been serious problems in Sri Lanka. Given the lack of information about some detainees, there is also a risk that some may have been ‘disappeared’.”
4.31 The UNHCR ‘Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka’, 5 July 2010 reported that ‘In the wake of the conflict, almost 11,000 persons suspected of LTTE links were arrested and detained in high-security camps’ adding that ‘According to a Government survey, as of 1 March 2010, 10,781 LTTE cadres were being held at 17 centres. Among the detainees were 8,791 males and 1,990 females,’ and noted that ‘Some of the adult detainees have...been released after completing rehabilitation programmes or because they were no longer deemed to present a risk, including some persons with physical disabilities.’”
32. The November 2010 COI Report also set out:
“4.09 The EIU (The Economist Intelligence Unit), Country Report, Sri Lanka, July 2010 reported: ‘The EU has warned that Sri Lanka faces losing trade advantages under the Generalised System of Preferences-Plus (GSP-Plus) scheme from August 15th, unless the Government commits itself in writing to improving its human rights record. The EU has put forward 15 conditions that it says the Government needs to promise to meet within the next six months. These include: ensuring that the 17th amendment to the constitution, which requires that appointments to public positions be impartial and reflect the country’s ethnic and religious mix, is enforced; repealing parts of the Prevention of Terrorism Act that are incompatible with Sri Lanka’s covenants on political and human rights; reforming the criminal code to allow suspects immediate access to a lawyer on arrest; and allowing journalists to carry out their professional duties without harassment. However, the Government has rebuffed the EU, stressing that the issues that it has raised are internal political matters that should not be linked to trade. The EU is not the only international body currently putting pressure on the government. Sri Lanka has also rejected the UN’s appointment of a three-member panel to examine possible human rights violations during the island’s civil war. The Sri Lankan authorities have warned that they will not provide visas for panel members to enter the country.’”
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4.11 The EIU, Country Report, Sri Lanka, August 2010 noted that: ‘The decision by the UN secretary-general, Ban Ki-moon [on 22 June 2010], to appoint a panel to examine accountability issues stemming from the final stages of the island’s civil war, which ended in May 2009, has prompted a strong reaction in Sri Lanka ...’
4.12 On 17 September 2010 the UN News Service reported that ‘Secretary-General Ban Kimoon has held his first meeting with the panel of experts set up to advise him on accountability issues relating to alleged violations of international humanitarian and human rights law during the final stages last year of the conflict in Sri Lanka.’ The source also noted that the role of the experts was to examine “the modalities, applicable international standards and comparative experience with regard to accountability processes, taking into account the nature and scope of any alleged violations in Sri Lanka.”
33. The United Kingdom Border Agency Country of Origin Information Report on Sri Lanka of 18 February 2009 (“the February 2009 COI Report”) sets out a series of letters from the British High Commission, Colombo, (“BHC”) on arrival procedures at Colombo airport. In its letter of 28 August 2008, the BHC observed:
“(T)he correct procedure for (Department of Immigration and Emigration (DIE)) officers is to record the arrival of these persons manually in a logbook held in the adjacent Chief Immigration Officer’s office. The name, date and time of arrival and arriving flight details are written into the log. It records why the person has come to their attention and how the case was disposed of. I have had the opportunity to look at the log, and it appears that the only two ways of disposal are to be passed to the Criminal Investigations Department (CID), or allowed to proceed.
The office of the State Intelligence Service (SIS) is in the immigration arrivals hall and an officer from SIS usually patrols the arrivals area during each incoming flight. Invariably, if they notice a person being apprehended they approach IED (Immigration and Emigration Department) and take details in order to ascertain in (sic) the person may be of interest to them. Their office contains three computer terminals, one belonging to the airport containing flight information and two stand-alone terminals. If an apprehended person is considered suitable to be passed to CID, they are physically walked across the terminal building to the CID offices. A CID officer should then manually record the arrival of the person in a logbook held in their office...often persons shown in the DIE logbook to have been handed to CID are never actually recorded as being received in the CID logbook. It is believed that CID has allowed these persons to proceed and no action has been taken against them.”
34. The same letter also noted that CID offices at the airport contained two computers, which were not linked to any national database. Any checks on persons detained or apprehended were conducted over the phone with colleagues in central Colombo. There were no fingerprint records at the airport. One computer contained records of suspects who had been arrested and charged with offences, and court reference numbers. It continued as follows:
“Were a Sri Lankan national to arrive at Colombo Airport having been removed or deported from the United Kingdom, they would be in possession of either a valid national Sri Lankan passport, or an emergency travel document/temporary passport, issued by the Sri Lankan High Commission in London. The holder of a valid passport would have the document endorsed by the immigration officer on arrival and handed back to him/her. A national passport contains the national ID card number on the laminated details page. I have made enquiries with the DIE at Colombo Airport, and with the International Organisation for Migration who meet certain returnees at the airport, and both have confirmed that a person travelling on an emergency travel document is dealt with similarly. They too have the document endorsed by the immigration officer on arrival and returned to them. Before issuing an emergency travel document, the Sri Lankan High Commission in London will have details of an applicant confirmed against records held in Colombo and will thus satisfactorily confirm the holder’s nationality and identity. If a returnee subsequently wishes to obtain a national identity card, they have to follow the normal procedures.”
35. In a letter dated 22 January 2009, the BHC reported that an official had spent several hours observing the return of failed asylum seekers from the United Kingdom, including those who were in possession of emergency travel documents, issued by the Sri Lankan High Commission in London. In the official’s opinion, the fact that certain returnees had been issued with emergency travel documents by the Sri Lankan High Commission in London did not seem to make any difference to their treatment upon arrival.
36. The Report of Information Gathering Visit to Colombo on 23 to 29 August 2009, conducted jointly by the Foreign and Commonwealth Office Migration Directorate and United Kingdom Border Agency Country of Origin Information Service (“the Report of Information Gathering Visit, August 2009”), concluded that all enforced returns (of whatever ethnicity) were referred to the CID at the airport for nationality and criminal record checks, which could take more than 24 hours. All enforced returns were wet-fingerprinted. Depending on the case, the individual could also be referred to the SIS and/or the Terrorist Investigation Department for questioning. Anyone who was wanted for an offence would be arrested.
37. The report set out that those with a criminal record or LTTE connections would face additional questioning and might be detained. In general, non-government and international sources agreed that Tamils from the north and east of the country were likely to receive greater scrutiny than others, and that the presence of the factors below would increase the risk that an individual could encounter difficulties with the authorities, including possible detention:
- Outstanding arrest warrant
- Criminal record
- Connection with the LTTE
- Bail jumping/escape from custody
- Illegal departure from Sri Lanka
- Scarring
- Involvement with media or NGOs
- Lack of an ID card or other documentation
38. The November 2010 COI report set out the following:
“33.20 The BHC letter of 30 August 2010 went on to observe that: ‘At the beginning of 2010, partly due to the large numbers of Sri Lankans being returned from around the world and causing logistical problems, CID procedures were relaxed in that they no longer had to detain returnees until written confirmation was received from the local police. All returnees are still interviewed, photographed and wet fingerprinted. The main objective of these interviews is to establish if the returnee has a criminal record, or if they are wanted or suspected of committing any criminal offences by the police. The photographs are stored on a standalone computer in the CID office at the airport. The fingerprints remain amongst paper records also in the CID office at the airport. Checks are initiated with local police, but returnees are released to a friend or relative, whom CID refers to as a surety. This surety must provide evidence of who they are, and must sign for the returnee. They are not required to lodge any money with CID. The main CID offices at Colombo Airport, which are housed on the ground floor adjacent to the DIE embarkation control, are currently undergoing a complete refurbishment funded by the Australian government. The one completed office suite has three purpose built interview rooms, and facilities where returnees can relax and eat meals.’
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33.22 A British High Commission letter of 14 September 2010 reported: ‘There is strong anecdotal evidence that scarring has been used in the past to identify suspects. Previous conversations with the police and in the media, the authorities have openly referred to physical examinations being used to identify whether suspects have undergone military style training. More recent claims from contacts in government ministries suggest that this practice has either ceased or is used less frequently. At the very least it appears that the security forces only conduct these when there is another reason to suspect an individual, and are not looking for particular scars as such, but anything that may indicate the suspect has been involved in fighting and/or military training. There is no recent evidence to suggest that these examinations are routinely carried out on immigration returnees.’”
39. On 19 October 2009, Tamilnet reported that twenty-nine Tamil youths were taken into custody by the State Intelligence Unit of the Sri Lanka Police at the International Airport in two separate incidents whilst trying to leave Sri Lanka. It was also reported that since July 2009, special teams of the State Intelligence Unit and police had been deployed in the airport to monitor the movement of Tamils who try to go abroad.
40. The Report of Information Gathering Visit, August 2009, stated that the frequency of cordon and search operations had not reduced significantly in recent months, though there were fewer large-scale operations than in previous years. In general, young male Tamils originating from the north and east of the country were most at risk of being detained following cordon and search operations, with the presence of the risk factors set out above increasing that risk. Those without employment or legitimate purpose for being in Colombo were also likely to be seen as suspect. The same report also noted that most sources agreed that there had been few, if any, abductions or disappearances since June 2009. There was not a great deal of available information about the profile of Tamils targeted for abduction, although it appeared that people linked to the media might be more vulnerable. Police did not generally carry out effective investigations. It went on to note that most sources agreed that there had not been any significant reduction in the number of checkpoints in Colombo, whose stated purpose remained to detect and prevent terrorist activity. In general those most likely to be questioned were young Tamils from the north and east; those without ID; those not resident or employed in Colombo; and those recently returned from the West. However, most sources said that arrests at checkpoints were rare and none had been reported since June 2009. It was reportedly fairly likely that someone would be stopped at a checkpoint en route from the airport to Colombo city. Finally, it clarified that people who wished to live in Colombo but did not originate from there were required to register with the local police station with a national ID card or full passport, and give details of planned length and purpose of stay. In theory, whilst anyone was entitled to register to stay in Colombo, some sources suggested that young Tamil men originally from the north or east of the country could encounter difficulties and face closer scrutiny. The presence of any of the risk factors set out above would also attract greater attention from the police.
“The significant majority of reported cases of human rights violations in Sri Lanka involve persons of Tamil ethnicity who originate from the North and East...In Government-controlled areas, Tamils who originate from the North and the East, which are, or have been under LTTE control, are frequently suspected as being associated with the LTTE. For this reason, Tamils from the North and the East are at heightened risk of human rights violations related to the implementation of anti-terrorism and anti-insurgency measures. While this risk exists in all parts of Sri Lanka, it is greatest in areas in which the LTTE remains active, and where security measures are heaviest, in particular the North and parts of the East, and in and around Colombo.”
“The country of origin information that UNHCR has considered indicates that Tamils from the North of Sri Lanka continue to face a significant risk of suffering serious human rights violations in the region (and elsewhere in the country) because of their race (ethnicity) or (imputed) political opinion. Tamils in the North are still heavily targeted in the security and anti-terrorism measures described in the Guidelines. Wide scale detention and confinement of Tamils from the North remains a serious concern. Pro-Government paramilitary elements also continue to operate with impunity against Tamils in the North.”
44. The UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka of 5 July 2010 (“the July 2010 Guidelines”), which superseded the April 2009 Guidelines, contained information on the particular profiles for which international protection needs may arise in the current context. It was stated that:
“Given the cessation of hostilities, Sri Lankans originating from the north of the country are no longer in need of international protection under broader refugee criteria or complementary forms of protection solely on the basis of risk of indiscriminate harm. In light of the improved human rights and security situation in Sri Lanka, there is no longer a need for group-based protection mechanisms or for a presumption of eligibility for Sri Lankans of Tamil ethnicity originating from the north of the country. It is important to bear in mind that the situation is still evolving, which has made the drafting of these Guidelines particularly complex.”
45. In summary, the following were UNHCR’s recommendations: all claims by asylum seekers from Sri Lanka
(i) persons suspected of having links with the Liberation Tigers of Tamil Eelam (LTTE); (ii) journalists and other media professionals; (iii) civil society and human rights activists; (iv) women and children with certain profiles; and (v) lesbian, gay, bisexual and transgender (LGBT) individuals.
46. A report commissioned by the applicant’s representatives from Dr Chris Smith (“Dr Smith’s report”) and dated 5 February 2007, includes the following relevant paragraphs:
“Given the treatment of Tamils, the authorities would question as to why any Tamil would want to come back and a significant exodus from the North is anticipated. The authorities may well conclude that, given their second class status, the only reason to return would be to lend support to the LTTE or whatever comes in its place. As such, returnees are likely to face a difficult time, especially at the airport.
The applicant was held for 5 days and the severity of his ill-treatment indicates that he was of adverse interest to the authorities who detained him. As such, his record will most likely have been included on the central database, particularly since he was released on reporting conditions which he subsequently violated. He has visible scars which could trigger adverse interest at the airport and, furthermore, the fact that he left Sri Lanka using false documentation will further contribute to risk and vulnerability at the airport. As such, it is very likely that the applicant will be detained on arrival and this will place him at considerable risk of ill-treatment, torture and, even, sexual abuse.”
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