Litigation and Employment Group

Litigation and Employment Group Treasury Solicitor’s Department One Kemble Street, London WC2B 4TS

Mr David Magee Administrative Court Office Royal Courts of Justice Strand London WC2A 2LL

DX 123242 Kingsway Switchboard: (020) 7210 3000 (GTN 210) Direct Line: (020) 7210 3525 Direct Fax: (020) 7210 3433 [email protected] th

Please Quote: AAM/B2/SriLanka/19 September 2012

14 September 2012

Dear David ENFORCED RETURNS TO SRI LANKA BY CHARTER FLIGHT ON WEDNESDAY 19 SEPTEMBER 2012: 15.30h. 1) I am writing to inform you that the Home Office intends to return up to 60 Sri Lankan nationals on a charter flight departing on Wednesday 19 September 2012 at 15.30 hours. Those who we intend to return are presently detained and removal directions were served on most of them on or before 12th September 2012. These people are leaving the United Kingdom on a specially chartered aircraft and not a normal, scheduled flight. 2) As this is a charter flight and not a normal scheduled departure the aircraft may have to close its doors and move away from the stand shortly before the allocated time in order to comply with the departure slot. It is very difficult to say with any certainty as to how long before the allocated time this may happen but it could be up to 30 minutes before. 3) The Court will be aware of the Home Office charter operations to Sri Lanka which took place on 31st May 2012 which removed 36 Sri Lankan nationals with 24 of them failed asylum seekers, on 28th February 2012 which returned 52 Sri Lankan nationals including 41 failed asylum seekers and on 28 September 2011, where the United Kingdom Border Agency (UKBA) returned 50 people, including 42 failed asylum seekers. A further charter flight operation took place on 15th December in which 50 people were returned. All returnees on both flights were accepted by the Sri Lankan authorities and staff from the British High Commission were on hand for the arrival of the charter to ensure that returnees were processed by the authorities, to deal with any real time enquiries and to ensure that returnees reached their final destinations. For this charter, the same safeguards will be provided. 4) Due to the possibility of a number of applications for injunctions on this charter flight which might rely on the information contained within the Freedom From Torture report (see below at paragraph 13) then I would be grateful if the Court could consider how best it wishes to deal with these applications and whether it would be helpful for the SSHD to

Lee John-Charles – Director of Public Law Division Andrea McMahon – Deputy Director; Team Leader

attend the Court and respond to any generic challenges of this nature. The SSHD would wish to make additional representations either orally or in writing should the Court be minded to grant injunctions based on generic claims of torture. Charter flights – rationale 5) The UKBA is committed to the voluntary return of those who have no legal right to remain in the UK and has a range of schemes to encourage and facilitate a sustainable returns programme. However, where it is necessary to enforce removal, charter flights are an effective method of return. This may be because of a lack of routing to a particular destination or where the availability of scheduled flights is not in line with demand. Additionally, charter flights allow UKBA to affect volume returns to countries where asylum intake is high or where there are a significant number of foreign national prisoners awaiting return. This also makes charter flights a cost effective option. Country situation 6) The UKBA closely monitor developments in Sri Lanka and will take decisions on a caseby-case basis in light of international obligations and the latest available country information. Returns will only be undertaken where we are satisfied the individual has no protection needs. Country information – Sri Lanka 7) The UKBA’s Country of Origin Information Service (COIS) material is compiled from a wide range of reliable external information sources including the United Nations High Commissioner for Refugees, human rights organisations, inter-governmental organisations, the Foreign and Commonwealth Office and non-governmental organisations such as Amnesty International and news media. 8) As well as COI Reports, COIS also issues COI bulletins when necessary to provide updates on significant changes to country conditions. In addition, COIS operates a rapid COI request service available to all UKBA staff, to research and provide up to date information on any issues not covered in existing COIS material. Detailed COI Reports are published frequently. The most recent COI Report on Sri Lanka was published on 4 July 2011. In addition, the Country of Origin Information Service have also issued a Bulletin dated 30 November 2011 which reports on the current situation with regards to the recent reports on torture. Both of these reports can be found at: www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/coi/srilanka12/

AIT Country Guidance Case – LP Sri Lanka CG [2007] 9) In the above country guidance the AIT considered the situation in Sri Lanka relating to Tamils and the treatment they can expect to receive from the Government authorities while also considering the evidence relating to the treatment of failed asylum seekers at the airport upon their return. Upon determining the case the AIT provided the following guidance:

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“(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.” This criteria has been endorsed and relied upon further in the determinations promulgated in both NA Sri Lanka [2008] ECHR and TK Sri Lanka AIT [2009] The determination in TK gave further detail stating: ‘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 and 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.

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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.’ Judgment in ECHR : E.G. V United Kingdom Sri Lanka [2011] 10) The determination in this case (made at the end of May 2011) refers directly to the judgement reached in TK and makes further observations namely that the general situation and the applicant’s own circumstances are to be taken into account and the assessment is made of the circumstances at the time of the proceedings : ‘It is the present conditions which are decisive’ (para 66) The judgement further endorsed the findings reached in TK and the Court also noted that: ‘the level of adverse interest in failed Tamil asylum seekers who return to the country has,if anything, decreased. The general country situation is not therefore conducive to any increased interest in the applicant’ (para 76) 11) The UK Border Agency believe the findings reached in EG to be significant and this latest judgment again concludes that Tamils who were not high level activists within the LTTE or who were only perceived to have a previous association with the LTTE would not be likely to be of adverse interest to the Sri Lankan authorities upon their return. Recent Reports on the Prevalence of Torture within Sri Lanka 12) The Court may be aware that the UN Committee Against Torture met in Geneva at the beginning of November to review Sri Lanka's implementation of its responsibilities under the convention. 12 Non Governmental Organisations (NGOs) made submissions claiming that torture is still widely practiced in Sri Lanka. The Sri Lankan delegation also presented its own report and gave oral evidence. The UK based Freedom from Torture (FFT), formerly the Medical Foundation for the Care of Victims of Torture, made submissions to the UN Committee and also separately published a report based on assessments and testimonies made by 35 asylum referrals to FFT in the UK, between May 2009 and September 2011. The report covered a wide range of issues including the allegation that Sri Lankans previously returned to the country by a number of European states may have been subject to mistreatment including torture. 13) The UK Border Agency already ensures that all asylum and human rights claims are given anxious scrutiny and the contents of the FFT report have been made available to all UKBA case-owners. The Country of Information Service has issued a comprehensive bulletin (dated 30 November) and this has been published on the UK Border Agency website. All of the Sri Lankan nationals served with removal directions for this flight will be given at least 72 hours notice of their removal and the majority of cases will be given 5 day’s notice. All further representations submitted during this notice period will be considered against the content of the FFT Report and the findings reached in the

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Country Guidance cases referred to above in order to ascertain whether the subject is genuinely in need of international protection before the proposed removal is effected. With regard to the monitoring of those individuals subject to enforced return, the Home Office already has arrangements in place with staff from the British High Commission in Sri Lanka who will observe the initial processing of the returnees and work to ensure they are appropriately transferred to their final destination. 14) The Court will also be aware that there was a wholesale challenge to the charter flight to Sri Lanka on the 15th December in reliance on the FTT report. The challenge was brought by the Tamils Against Genocide in an attempt to prevent the charter flight from returning the passengers without any individual claim pleaded on behalf of the passengers themselves. I respectfully draw the court’s attention to the outcome of that challenge and in particular Mitting J’s comments about challenges to prevent removal needed to be made on an individual basis. In particular he stated: ‘This attempt to prevent wholesale the return of Sri Lankans and in particular Tamils to Sri Lanka, in my judgment, must be rejected. In NA (25904/7), a judgment of the fourth section of the Strasbourg court on 17th July 2008, the court, in an extended passage, observed at paragraph 128: "The assessment of the risk to Tamils of 'certain practices' ... can only be done on an individual basis." It went on to analyze in great detail the risk factors which might obtain in a case of an individual Tamil. That approach was upheld and reinforced in the more recent Strasbourg decision EG v United Kingdom, in which, amongst other things, the court observed that the general situation in Sri Lanka was now less conducive to continued interest in failed asylum seekers. There may be room for debate about that. But the debate must be conducted, as it has always been, save for periods of suspension during particular periods of concern, by conducting an investigation on an individual basis. If any of the individuals on this flight seek to challenge their removal to Sri Lanka, they must do so by the traditional means of challenging it by reference to individual risk factors and not by reference to general factors applicable to all Tamils who may be returned to Sri Lanka. I therefore reject this application. It is therefore respectfully requested that any challenge to this proposed charter flight of a similar nature, that is challenges which are not brought on an individual basis, be refused. It has subsequently been confirmed that Tamil Law Centre (not to be confused with Tamils Against Genocide) filed an application to the ECtHR in respect of the Sri Lanka charter flight on the 15th December 2011 but this was withdrawn on the 6th February. There are therefore no outstanding proceedings in relation to the 15th December charter flight. 15)

I would also like to draw to the Court’s attention the fact that a number of injunctions which were applied for on the December charter flight in reliance on the FFT report were refused. I set out some of the observations made below:

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‘The claim for interim relief on generic grounds is hopeless. All of the FTT and UNCAT material has been included in the COIS update on the UKBA website since 30th November 2011. Nothing in the Swiss Administrative Court decision assists this claim.’ CO/12218/2011 Mr. Justice Wilkie ‘The claim based on the FFT and UNCAT reports is completely generic.’ CO/12216/2011. Mr. Justice Wilkie ‘…..The UKBA is well aware of the contents of the FFT report and the UNCAT report both of which are extensively referred to in the EG v UK 2011 are taken into account. There is nothing particular to this application replied on. There is nothing in the most recent material which requires the UKBA to stay its decision to remove. The Swiss Court decision does not require the decision to be stayed either.’ CO/12161 Mr Justice Wilkie. Returns to Sri Lanka effected by the IOM The UK Border Agency has also sought the views of the British High Commission in Colombo who have reported in a letter dated 6 September 2012 that the International Organisation for Migration (IOM) is successfully returning Sri Lankan nationals who find themselves estranged abroad stating: “To date a total of 505 Sri Lankans have been voluntary returned from seven West African countries: Benin, Ghana, Guinea, Mali, Mauritania, Sierra Leone and Togo. The project is continuing and expanding to further countries as there are an estimated further 800 Sri Lankans currently stranded in West Africa” IOM officials accompany the returnees on flights and they are also received by further IOM officials at Colombo Airport. Those officials remain with them throughout the arrival procedures which involve interviews with the Department of Immigration & Emigration, the State Intelligence Service and the Criminal Investigation Department of the Police. There had been health scares regarding some of the earlier returnees with claims of many having yellow fever on their return. See: http://www.dailymirror.lk/news/16642-deportees-from-togo-to-be-checked-for-yellowfever.html. Since then IOM have worked with the Sri Lankan Ministry of Health and returnees are screened both prior to departure from the West African country and again on arrival in Colombo. We are told that 99% of all of the returnees return using their own valid national passport. Once the returnees have passed through all of the arrival procedures, IOM provide transport to their home districts” The IOM continues to provide Sri Lankans abroad with an avenue to return to their country of origin. Disclosure Concerns 16)

The UKBA has asked me to clarify their position in respect of two Sri Lankan cases where the European Court of Human Rights (ECtHR) recently granted Rule 39 applications which were made on the basis of disclosure concerns. The UKBA is concerned that, on the basis of the assertions made in those two cases, other Sri Lankan nationals may make applications to the High Court for injunctions in order to prevent their removal. Accordingly, UKBA have asked me to set out the latest position

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in order to assist Judges with any applications that may be made to the Court on similar grounds. 17)

The ECtHR has been made aware that in one of the cases referred to in paragraph 14, a document (an internal pro forma, see paragraph 17 for details) was inadvertently passed to the Sri Lankan authorities which would have made them aware that the subject had previously made an unsuccessful asylum claim in the United Kingdom. This disclosure occurred on 12 May 2011 when a number of Sri Lankan nationals whom the UKBA was seeking to remove, were interviewed by the Sri Lankan authorities for the purpose of obtaining Emergency Travel Documents.

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The UKBA is aware of the same disclosure having taken place in relation to 13 other individuals who were also interviewed by an official from the Sri Lankan High Commission on 12 May 2011. In those cases the same internal pro forma, as in the case mentioned above, was inadvertently provided to the High Commission.

19) The only information released on the pro forma document for those 14 cases was: 1)

The date the asylum claim was made ; and,

2)

The date at which the respective applicants exhausted all appeal rights (following an unsuccessful asylum application)

20) The UKBA is satisfied that any such assertions in relation to risk on return which might arise following disclosure of the pro forma document is limited to the subjects of those 14 cases only, none of whom we are currently seeking to remove on the charter flight on 19 September 2012. 21) I am informed that on the 29th August 2011 the ECtHR lifted the Rule 39 interim measure in respect of one of the two cases. In that case UKBA had confirmed (as with all passengers on the planned charter operation) there had been no disclosure. UKBA Charter Policy 22) Because of the complexities, practicalities and costs involved in arranging charters flights it is essential that these removals are not disrupted or delayed by large numbers of last minute claims for permission to seek judicial review. To ensure the viability of this operation to Sri Lanka, and in line with enforcement operational instructions, the Home Office may decide not to defer removal simply on receipt of a last minute threat or application to seek judicial review in cases where removal directions have been set and served at least 5 working days before departure (i.e. Wednesday 12 September). Where last minute representations are received stating an intention to make an application, or that an application has been made, to seek permission for judicial review, and the UKBA decides that removal should proceed, the Claimant or his representatives will be informed in writing that removal will not be deferred. 23) All such Claimants will be advised that they must seek an injunction if they wish to prevent removal. If an injunction is obtained, the Court is asked to note that this should be notified to the UKBA’s Operational Support and Certification Unit (OSCU) or the

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Command and Control Unit (CCU) as per the instructions to Immediates and Duty Judges, by telephone and if possible confirmed by e mail. It would also assist us if the Court could notify UKBA of injunctions which have been refused in the same way. 24) The case details of those Sri Lankan nationals it is proposed to remove are attached. At the same time as the removal directions were set, each detainee was also served with a letter advising that, as it is intended to remove them on a charter flight, the UKBA may decide not to defer removal if a threat or application is made to seek permission for judicial review. I also attach a copy of that template letter. The Court will see that this also includes reference to the need to serve any injunction obtained on UKBA to ensure that it is acted upon. Given the early service of removal directions, the UKBA does not believe there can be any good reason for late applications for judicial review, or out of hours applications for injunctions. 25) It is respectfully requested that Immediates and Duty Judges take the above information into account when considering any applications made for injunctions to prevent the removal of those due to be returned on the flight on 19th September. The contact email and telephone numbers are provided in the covering email to this letter and are provided to the Court on a confidential basis and should not be communicated to third parties. Should Immediates and Duty Judges or their clerks require further information or copies of documentation on individual cases they may contact OSCU’s Duty Officer between the hours of 07.00 – 21.00 Monday to Friday and 07.00 – 19.00 at weekends. 26) It would be helpful if any urgent email communication is followed by a telephone call to the OSCU Duty Officer on the number provided above to confirm receipt. 27) I would be grateful if you could make both Immediates and Duty Judges aware of the situation and the reasons for following this course of action. Yours sincerely

Andrea McMahon for the Treasury Solicitor

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