The Court of Justice of the European Union will take up the asylum application of a former member of the LTTE, who sought asylum in 2009 citing that he would face torture if he returned to Sri Lanka.

Sri Lankan Tamil torture victim | File photo

At the time the former rebel arrived in UK in January 2005 he was 28, and was allowed to enter UK as a student, after which it was further extended till September 2008. However, when he requested for another extension, his request was denied and then he sought asylum in January 2009 claiming that he was a former member of the LTTE, and if he returned back to his home country, Sri Lanka he will be tortured by security forces.

According to the asylum seeker, before he arrived in the UK he was subjected to detention and torture by the Sri Lankan military as he was a member of the LTTE.

However questions have arisen as to whether this former LTTE cadre is eligible for such protection, and if there is authenticity in what he says, in relation to that if he returns back to Sri Lanka he will be tortured. At the time he entered UK he did not claim that he was subjected to such torture and made the claim only four years after staying in UK, and after his request for a third extension was denied.

The Secretary of State for the Home Department refused his application in February 2009 for asylum on the basis that he would not be at risk of further ill-treatment despite his membership of LTTE. However, the applicant appealed. However, according to the Upper Tribunal (UT) there was evidence from a psychiatrist that he was suffering severe post-traumatic stress disorder and severe depression and showed a high degree of suicidality. The UT accepted that the appellant had a genuine fear of return to Sri Lanka. It accepted that the mental health provision in Sri Lanka was insufficient. But it did not accept that he was of any continuing interest to the authorities in Sri Lanka. Therefore the UT rejected his appeal under the Qualification Directive.

In the Court of Appeal, Maurice Kay LJ rejected his appeal on the basis that “the alleged future harm would emanate not from the intentional acts or omissions of public authorities or non-state bodies, but instead from a naturally occurring illness and the lack of sufficient resources to deal with it in the receiving country”.

Subsequently, the Appellant appealed to the Supreme Court on the grounds that this is too narrow a view of the scope of the Qualification Directive and that his mental illness should not be regarded as naturally occurring because it was caused at the hands of the Sri Lankan authorities. He argued it makes no difference to his entitlement to such protection that there is no longer a risk of repetition of the ill treatment which is the cause of his current state of health.

However, as none of the authorities from the Court of Justice or the European Union of the European Court of Human Rights are precisely on point, as such, the court referred the matter to the Court of Justice of the European Union.