{"id":94243,"date":"2013-07-05T23:04:03","date_gmt":"2013-07-05T17:34:03","guid":{"rendered":"http:\/\/www.colombotelegraph.com\/?p=94243"},"modified":"2013-07-13T10:30:41","modified_gmt":"2013-07-13T05:00:41","slug":"full-text-uk-upper-tribunals-final-determination-of-the-sri-lanka-country-guidance","status":"publish","type":"post","link":"https:\/\/www.colombotelegraph.com\/index.php\/full-text-uk-upper-tribunals-final-determination-of-the-sri-lanka-country-guidance\/","title":{"rendered":"Full Text: UK Upper Tribunal’s Final Determination Of The Sri Lanka Country Guidance"},"content":{"rendered":"

The final determination of the Sri Lanka Country Guidance Case is out today.\u00a0This will provide a new guidance in deciding asylum case in the UK.<\/p>\n

It is to be noted that the UK Upper Tribunal has agreed that Tamils detained by the Sri Lankan security services remains at real risk of ill-treatment or harm requiring international protection.<\/p>\n

\"\"<\/a>The decision also introduced a categories of the persons at risk in Sri Lanka which includes, LTTE members, relatives of the LTTE members, Journalists, Tamils Activist and Human rights workers.<\/p>\n

The Upper tribunal sets out;<\/p>\n

The government\u2019s present objective is to identify Tamil activists in the diaspora who are working for Tamil separatism and to destabilise the unitary Sri Lankan state enshrined in Amendment 6(1) to the Sri Lankan Constitution in 1983, which prohibits the \u2018violation of territorial integrity\u2019 of Sri Lanka.\u00a0 Its focus is on preventing both (a) the resurgence of the LTTE or any similar Tamil separatist organisation and (b) the revival of the civil war within Sri Lanka.<\/p>\n

(4)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 If a person is detained by the Sri Lankan security services there remains a real risk of ill-treatment or harm requiring international protection.<\/p>\n

(5)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Internal relocation is not an option within Sri Lanka for a person at real risk from the Sri Lankan authorities, since the government now controls the whole of Sri Lanka and Tamils are required to return to a named address after passing through the airport.<\/p>\n

(6)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 There are no detention facilities at the airport.\u00a0 Only those whose names appear on a \u201cstop\u201d list will be detained from the airport.\u00a0 Any risk for those in whom the Sri Lankan authorities are or become interested exists not at the airport, but after arrival in their home area, where their arrival will be verified by the CID or police within a few days.<\/p>\n

(7)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The current categories of persons at real risk of persecution or serious harm on return to Sri Lanka, whether in detention or otherwise, are:<\/p>\n

(a)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they are, or are perceived to have a significant role in relation to post-conflict Tamil separatism within the diaspora and\/or a renewal of hostilities within Sri Lanka.<\/p>\n

(b)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Journalists (whether in print or other media) or human rights activists, who, in either case, have criticised the Sri Lankan government, in particular its human rights record, or who are associated with publications critical of the Sri Lankan government.<\/p>\n

(c)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Individuals who have given evidence to the Lessons Learned and Reconciliation Commission implicating the Sri Lankan security forces, armed forces or the Sri Lankan authorities in alleged war crimes.\u00a0 Among those who may have witnessed war crimes during the conflict, particularly in the No-Fire Zones in May 2009, only those who have already identified themselves by giving such evidence would be known to the Sri Lankan authorities and therefore only they are at real risk of adverse attention or persecution on return as potential or actual war crimes witnesses.<\/p>\n

(d)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 A person whose name appears on a computerised \u201cstop\u201d list accessible at the airport, comprising a list of those against whom there is an extant court order or arrest warrant.\u00a0 Individuals whose name appears on a \u201cstop\u201d list will be stopped at the airport and handed over to the appropriate Sri Lankan authorities, in pursuance of such order or warrant.<\/p>\n

(8)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The Sri Lankan authorities\u2019 approach is based on sophisticated intelligence, both as to activities within Sri Lanka and in the diaspora.\u00a0 The Sri Lankan authorities know that many Sri Lankan Tamils travelled abroad as economic migrants and also that everyone in the Northern Province had some level of involvement with the LTTE during the civil war.\u00a0 In post-conflict Sri Lanka, an individual\u2019s past history will be relevant only to the extent that it is perceived by the Sri Lankan authorities as indicating a present risk to the unitary Sri Lankan state or the Sri Lankan Government.<\/p>\n

(9)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The authorities maintain a computerised intelligence-led \u201cwatch\u201d list. A person whose name appears on a \u201cwatch\u201d list is not reasonably likely to be detained at the airport but will be monitored by the security services after his or her return. If that monitoring does not indicate that such a person is a Tamil activist working to destabilise the unitary Sri Lankan state or revive the internal armed conflict, the individual in question is not, in general, reasonably likely to be detained by the security forces.\u00a0 That will be a question of fact in each case, dependent on any diaspora activities carried out by such an individual.<\/p>\n

Read the full\u00a0determination below;\u00a0<\/strong><\/p>\n\n\n\n\n\n
Upper Tribunal <\/strong><\/td>\n\u00a0<\/strong><\/td>\n\n

Appeal Numbers:\u00a0 AA\/12647\/2011 <\/strong><\/p>\n<\/td>\n<\/tr>\n

(Immigration and Asylum Chamber)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Appeal Number: AA\/12647\/2011<\/strong><\/td>\n\u00a0<\/strong><\/td>\n\n

AA\/03791\/2011<\/strong><\/strong><\/p>\n<\/td>\n<\/tr>\n

\n

\u00a0<\/strong><\/p>\n<\/td>\n

\n

\u00a0<\/strong><\/p>\n<\/td>\n

\n

AA\/02916\/2009<\/strong><\/strong><\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

 <\/p>\n

 <\/p>\n

THE IMMIGRATION ACTS<\/span><\/strong><\/p>\n

\u00a0<\/span><\/strong><\/p>\n

\u00a0<\/span><\/strong><\/p>\n\n\n\n\n\n
Heard at Field House<\/strong><\/td>\nDetermination Promulgated<\/strong><\/td>\n<\/tr>\n
On 5 \u2013 8 and 11-12 February 2013,<\/strong>15 March 2013 and 19 April 2013. <\/strong><\/td>\n\u00a0<\/strong><\/td>\n<\/tr>\n
\u00a0<\/strong><\/td>\n\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026<\/strong><\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

 <\/p>\n

 <\/p>\n

Before<\/strong><\/p>\n

\u00a0<\/strong><\/p>\n

UPPER TRIBUNAL JUDGE GLEESON<\/strong><\/p>\n

UPPER TRIBUNAL JUDGE DAWSON<\/strong><\/p>\n

UPPER TRIBUNAL JUDGE O’CONNOR<\/strong><\/p>\n

\u00a0<\/strong><\/p>\n

\u00a0<\/strong><\/p>\n

Between<\/strong><\/p>\n

\u00a0<\/strong><\/p>\n

\u00a0<\/strong><\/p>\n

GJ<\/strong><\/p>\n

NT<\/strong><\/p>\n

MP<\/strong><\/strong><\/p>\n

Appellants<\/span><\/p>\n

and<\/strong><\/p>\n

\u00a0<\/strong><\/p>\n

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT<\/strong><\/strong><\/p>\n

\u00a0<\/strong><\/p>\n

Respondent<\/span><\/p>\n

and<\/p>\n

TAMILS AGAINST GENOCIDE<\/strong><\/p>\n

Interested Party<\/span><\/p>\n

\u00a0<\/span><\/p>\n

\u00a0<\/span><\/strong><\/p>\n


<\/span><\/strong><\/p>\n

Representation<\/span><\/strong>:<\/strong><\/p>\n\n\n\n\n\n\n\n
For the First Appellant :<\/td>\nMiss Shivani Jegarajah and Mr Iain Palmer, instructed by Patricks solicitors.<\/td>\n<\/tr>\n
For the Second Appellant:<\/td>\nMr Rudolph Spurling and Miss Sara Anzani, instructed by Dean Manson Solicitors<\/td>\n<\/tr>\n
For the Third Appellant:<\/td>\nMr Alasdair Mackenzie and Miss Alison Pickup, instructed by Birnberg Peirce & Partners, solicitors<\/td>\n<\/tr>\n
For the Interested Party:<\/td>\nMiss Shivani Jegarajah and Mr Colin Yeo instructed by Duncan Lewis, solicitors<\/td>\n<\/tr>\n
For the Respondent:<\/td>\nMr Jonathan Hall and Mr William Hays, instructed by The Treasury Solicitor<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

\u00a0<\/span><\/strong><\/p>\n

DETERMINATION AND REASONS<\/span><\/strong><\/p>\n

    \n
  1. The first appellant appeals against a decision to refuse him leave to enter theUnited Kingdom. The second and third appellants appeal against decisions of the Secretary of State to remove them toSri Lanka. Each appellant appeals on Refugee Convention, humanitarian protection and human rights grounds.\u00a0 This determination is one to which all three members of the panel have contributed.<\/li>\n
  2. The changes which have taken place in Sri Lankasince the end of the civil war in May 2009 are complex. We have had access to a wide range of oral and written documents and expertise to assist us in re-assessing who is at risk today if returned to Sri Lanka. We have had the advantage of hearing from many highly qualified witnesses with knowledge of circumstances in Sri Lankanow and of events since May 2009, and of receiving over 5000 pages of documentary evidence, in written and electronic form.\u00a0 <\/strong><\/li>\n
  3. We would like to record our gratitude to counsel, to those instructing them, and to the expert and country witnesses, for the research they carried out, for full and helpful submissions, and for their help in assembling the evidence to enable the Tribunal to give new country guidance on Sri Lanka.\u00a0 The present determination is necessarily a long one, but we have sought to maintain clarity by dealing with certain parts of the evidence more fully in appendices and summarising it in the main body of the determination.<\/li>\n
  4. In view of the length and perceived significance of this decision, at our request, all of the Counsel in the appeal considered the final draft (under embargo) before it was published and made helpful suggestions in relation to typing corrections and other obvious errors. \u00a0They were also asked to indicate any anonymity concerns in the determination as drafted:\u00a0 no such concerns were raised.<\/li>\n
  5. The appeals were identified as suitable for country guidance in relation to the present situation in Sri Lanka.\u00a0 The most recent Sri Lanka country guidance is that of the Asylum and Immigration Tribunal in\u00a0 TK (Tamils, LP updated) Sri Lanka<\/em> CG<\/em> [2009] UKAIT 00049 based on materials up to and including 26 October 2009, just five months after the civil war ended in May 2009. The guidance in TK<\/em> updated and incorporated country guidance given by the AIT in LP (LTTE area \u2013 Tamils – Colombo \u2013 risk?) Sri Lanka CG<\/em> [2007] UKAIT 00076 and approved by the European Court of Human Rights (ECtHR) in NA v UK<\/em>, No 25904\/07 [2011] ECHR 1272, and more recently in E.G.<\/em> v. The United Kingdom – <\/em>41178\/08 [2011] ECHR 846.<\/li>\n
  6. The civil war inSri Lankaended on 19 May 2009 after more than 25 years of conflict, involving tens of thousands of deaths and casualties and serious damage to the infrastructure in the Northern andEasternProvinces, where the conflict was most fierce.\u00a0 At the end of the civil war, about 160,000 Tamils were unaccounted for, but as in any conflict zone, there are real difficulties in establishing how reliable any such statistics may be.\u00a0 The LTTE withinSri Lankais a spent force and the government has full control over the whole ofSri Lanka.<\/li>\n
  7. The evidence before us indicates that the Sri Lankan government is determined to ensure that Tamil separatism and the conflict it brought never recur.\u00a0 The government\u2019s intention is being carried into effect by an intensive militarisation and Sinhalisation of former Tamil areas, \u201crehabilitation\u201d of 11,000 former LTTE cadres, and intelligence-led monitoring and supervision of Tamil activities, both withinSri Lankaand in the diaspora.<\/li>\n<\/ol>\n

    The appellants <\/strong><\/p>\n

      \n
    1. The three appellants are Tamils, all with LTTE links. \u00a0Their names are anonymised in this determination.\n
        \n
      1. The basis of the first appellant\u2019s account is that he came from a family of LTTE loyalists; his sister was a member of the Movement\u2019s inner circle, acting as medical adviser to its late leader, Thiruvenkadam Velupillai Prabhakaran, whose death on 18 May 2009 ended the civil war.\u00a0 The appellant was recruited in May 2007 and served until the end of the civil war.\u00a0 He was detained twice, once as a civilian, and the second time, because of his family connections.\u00a0 He has torture scars.<\/li>\n
      2. The basis of the second appellant\u2019s account is that he came originally fromJaffnabut was relocated to Puthukudyiruppu where he worked for the LTTE on the Pallai checkpoint for two years.\u00a0 He returned home after the ceasefire and was re-recruited in 2008, bunker digging and transporting the wounded.\u00a0 He surrendered at the end of the civil war in May 2009 and was detained for three months, during which he was tortured.\u00a0 He reached theUnited Kingdomin 2010.<\/li>\n
      3. The basis on which the third appellant puts his claim is that he was involved with the LTTE between 1995-1997.\u00a0 He was detained and tortured in 2001-2 but released from detention in 2002 after the ceasefire, and came to theUnited Kingdomin 2005.\u00a0 His brother is also in theUnited Kingdomand has been granted asylum on appeal.<\/li>\n<\/ol>\n<\/li>\n
      4. The paragraph numbers where certain elements of this determination may be found are as follows:<\/strong><\/li>\n<\/ol>\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n
        Description<\/span><\/strong>\u00a0<\/span><\/em><\/strong><\/td>\n\n

        Paragraphs<\/span><\/strong><\/strong><\/p>\n<\/td>\n<\/tr>\n

        Glossary<\/em><\/strong><\/td>\n\n

        8<\/strong><\/p>\n<\/td>\n<\/tr>\n

        Tamil celebrations<\/em><\/strong><\/em><\/strong><\/td>\n\n

        9<\/strong><\/p>\n<\/td>\n<\/tr>\n

        Evidence before the Upper Tribunal<\/em><\/strong><\/td>\n\n

        10-15<\/strong><\/p>\n<\/td>\n<\/tr>\n

        Procedural issues <\/em><\/strong><\/td>\n\n

        16<\/strong><\/p>\n<\/td>\n<\/tr>\n

        Unrelated<\/em><\/strong> Tribunal determinations <\/strong><\/em><\/td>\n\n

        17-27<\/strong><\/p>\n<\/td>\n<\/tr>\n

        The respondent\u2019s duty of disclosure <\/em><\/strong><\/td>\n\n

        28-32<\/strong><\/p>\n<\/td>\n<\/tr>\n

        HRW\/FFT\/TAG reports \u2013 confidentiality <\/em><\/strong><\/td>\n\n

        33-37<\/strong><\/p>\n<\/td>\n<\/tr>\n

        Ms Hogg and her HRW research<\/em><\/strong><\/td>\n\n

        38-40<\/strong><\/p>\n<\/td>\n<\/tr>\n

        Existing guidance on Sri Lanka <\/em><\/strong><\/td>\n\n

        41-42<\/strong><\/p>\n<\/td>\n<\/tr>\n

        Updating the country guidance <\/em><\/strong><\/td>\n\n

        41-48<\/strong><\/p>\n<\/td>\n<\/tr>\n

        Agreed issues <\/em><\/strong><\/td>\n\n

        49-51<\/strong><\/p>\n<\/td>\n<\/tr>\n

        Summary of Evidence<\/em><\/strong><\/td>\n\n

        52-165<\/strong><\/p>\n<\/td>\n<\/tr>\n

        Submissions<\/em><\/strong>:<\/strong>\u00a0<\/strong>(1)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 \u00a0<\/strong><\/td>\nA.\u00a0\u00a0\u00a0\u00a0\u00a0 Respondent\u2019s submissionsB.\u00a0\u00a0\u00a0\u00a0\u00a0 Appellants\u2019 submissions(1)\u00a0\u00a0\u00a0 Mr Mackenzie\u2019s submissions(2)\u00a0\u00a0\u00a0 Mr Spurling’s submissions(3)\u00a0\u00a0\u00a0 Mr Palmer\u2019s submissionsC.\u00a0\u00a0\u00a0\u00a0\u00a0 Miss Jegarajah\u2019s submissionsSubmissions in reply <\/strong><\/td>\n\n

        166-179<\/strong><\/p>\n

        180<\/strong><\/p>\n

        181-195<\/strong><\/p>\n

        196-202<\/strong><\/p>\n

        203-205<\/strong><\/p>\n

        206-221<\/strong><\/p>\n

        222-225<\/strong><\/p>\n<\/td>\n<\/tr>\n

        Legal framework<\/em><\/strong>\u00a0<\/strong><\/td>\n\u00a0<\/strong><\/td>\n\n

        226-234<\/strong><\/p>\n<\/td>\n<\/tr>\n

        Discussion:<\/em><\/strong>\u00a0<\/strong><\/td>\nOur assessment of the witnessesConfidentiality and the public reportsTiming of flights and reportsUNHCR GuidelinesGeneral situation inSri Lankanow<\/td>\n\n

        235-276<\/strong><\/p>\n

        277-279<\/strong><\/p>\n

        280-286<\/strong><\/p>\n

        287-294<\/strong><\/p>\n

        295-312<\/strong><\/p>\n<\/td>\n<\/tr>\n

        \u00a0<\/em><\/strong><\/td>\n(2)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Particular issues:<\/em><\/strong>(3)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 No-Fire Zones<\/td>\n\n

        \u00a0<\/strong><\/p>\n

        315<\/strong><\/p>\n<\/td>\n<\/tr>\n

        \u00a0<\/strong><\/td>\n(4)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 \u201cRehabilitation\u201d<\/td>\n\n

        316-319<\/strong><\/p>\n<\/td>\n<\/tr>\n

        \u00a0<\/strong><\/td>\n(5)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Rajapaksa government<\/td>\n\n

        320-321<\/strong><\/p>\n<\/td>\n<\/tr>\n

        \u00a0<\/strong><\/td>\n(6)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Sri Lankan Government\u2019s attitude(7)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 to returning asylum seekers<\/td>\n\n

        322-326<\/strong><\/p>\n<\/td>\n<\/tr>\n

        \u00a0<\/strong><\/td>\n(8)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Sinhalisation of Tamil areas<\/td>\n\n

        327-329<\/strong><\/p>\n<\/td>\n<\/tr>\n

        (9)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 \u00a0<\/strong><\/td>\n(10)\u00a0\u00a0\u00a0\u00a0 LLRC<\/td>\n\n

        330-334<\/strong><\/p>\n<\/td>\n<\/tr>\n

        \u00a0<\/strong><\/td>\n(11)\u00a0\u00a0\u00a0\u00a0 Diaspora activities<\/td>\n\n

        335-352<\/strong><\/p>\n<\/td>\n<\/tr>\n

        \u00a0<\/strong><\/td>\n(12)\u00a0\u00a0\u00a0\u00a0 The LP \/ TK <\/em>factors<\/td>\n\n

        353-354<\/strong><\/p>\n<\/td>\n<\/tr>\n

        Country guidance<\/span><\/em><\/strong><\/em><\/strong><\/td>\n\u00a0<\/strong><\/td>\n\n

        355-356<\/strong><\/p>\n<\/td>\n<\/tr>\n

        The individual appellants<\/em><\/strong>: <\/strong><\/td>\nThe first appellant<\/td>\n\n

        358-398<\/strong><\/p>\n<\/td>\n<\/tr>\n

        \u00a0<\/strong><\/td>\nThe second appellant<\/td>\n\n

        399-435<\/strong><\/p>\n<\/td>\n<\/tr>\n

        \u00a0<\/strong><\/td>\nThe third appellant<\/td>\n\n

        436-455<\/strong><\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

        Glossary<\/strong><\/p>\n

          \n
        1. The following standard abbreviations are used in this determination:<\/li>\n<\/ol>\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n
          Abbreviation<\/span><\/strong><\/td>\nFull name <\/span><\/strong><\/td>\n<\/tr>\n
          BHC<\/strong><\/td>\nBritish High Commission<\/td>\n<\/tr>\n
          CHOGM<\/strong><\/td>\nCommonwealth Heads of Government Meeting<\/td>\n<\/tr>\n
          CID<\/strong><\/td>\nCriminal Investigation Department<\/td>\n<\/tr>\n
          CSLT<\/strong><\/td>\nCountry Specific Litigation Team<\/td>\n<\/tr>\n
          DIE<\/strong><\/td>\nDepartment of Immigration and Emigration (Colombo)<\/td>\n<\/tr>\n
          Diaspora hotspot<\/strong><\/td>\nLondon, Paris, Torontoand Oslo, the main centres of activity for the Tamil diaspora worldwide.[1]<\/a><\/td>\n<\/tr>\n
          Diaspora activities<\/strong><\/td>\nDemonstrations, fundraising, and other activities carried out in the diaspora hotspots, in support of Tamil separatism and the resurgence of the LTTE or similar militia.<\/td>\n<\/tr>\n
          ECHR <\/strong><\/td>\nEuropean Convention on Human Rights and Fundamental Freedoms<\/td>\n<\/tr>\n
          EPDP<\/strong><\/td>\nEelam People\u2019s Democratic Party<\/td>\n<\/tr>\n
          ETD<\/strong><\/td>\nEmergency Travel Document<\/td>\n<\/tr>\n
          FFT<\/strong><\/td>\nFreedom from Torture (formerly the Medical Foundation)<\/td>\n<\/tr>\n
          GOSL <\/strong><\/td>\nGovernment ofSri Lanka<\/td>\n<\/tr>\n
          HRW<\/strong><\/td>\nHuman Rights Watch<\/td>\n<\/tr>\n
          HSZ<\/strong><\/td>\nHigh Security Zone<\/td>\n<\/tr>\n
          IAGCI<\/strong><\/td>\nIndependent Advisory Group on Country Information<\/td>\n<\/tr>\n
          IOM <\/strong><\/td>\nInternational Organization for Migration<\/td>\n<\/tr>\n
          LLRC<\/strong><\/td>\nLessons Learned and Reconciliation Commission<\/td>\n<\/tr>\n
          LTTE\u00a0 <\/strong><\/td>\nLiberation Tigers of Tamil Eelam<\/td>\n<\/tr>\n
          MDO<\/strong><\/td>\nMigration Delivery Officer (BHC Colombo)<\/td>\n<\/tr>\n
          MEA<\/strong><\/td>\nMinistry of External Affairs (Colombo)<\/td>\n<\/tr>\n
          MLR <\/strong><\/td>\nMedico legal report<\/td>\n<\/tr>\n
          MSO<\/strong><\/td>\nMigration Support Officer (BHC Colombo)<\/td>\n<\/tr>\n
          NGO<\/strong><\/td>\nNon-governmental organisation<\/td>\n<\/tr>\n
          NFZ<\/strong><\/td>\nNo-fire zone<\/td>\n<\/tr>\n
          PLOTE<\/strong><\/td>\nPeople’s Liberation Organization of Tamil Eelam<\/td>\n<\/tr>\n
          PTA <\/strong><\/td>\nPrevention of Terrorism Act (as amended)<\/td>\n<\/tr>\n
          SLHC<\/strong><\/td>\nSri Lankan High Commission<\/td>\n<\/tr>\n
          SIS<\/strong><\/td>\nState Intelligence Service<\/td>\n<\/tr>\n
          \u201cstop\u201d list<\/strong><\/td>\nComputerised list of those against whom there is an extant Court order, arrest warrant or order to impound their Sri Lankan passport.\u00a0 Accessible at the airport.<\/td>\n<\/tr>\n
          TAG<\/strong><\/td>\nTamils against Genocide<\/td>\n<\/tr>\n
          TamilNet<\/strong><\/td>\nwww.tamilnet.com<\/a><\/em>:\u00a0 A Tamil news and feature service that aims to provide reliable and accurate information on issues concerning the Tamil people inSri Lanka.<\/td>\n<\/tr>\n
          TGTE<\/strong><\/td>\nTransnational Government of Tamil Eelam<\/td>\n<\/tr>\n
          TNA<\/strong><\/td>\nTamil NationalAlliance\u2013 a breakaway from TNPF launched on 28 February 2010.<\/td>\n<\/tr>\n
          TNPF<\/strong><\/td>\nTamil National People\u2019s Front \u2013 a Tamil political alliance<\/td>\n<\/tr>\n
          TTD<\/strong><\/td>\nTemporary Travel Document.ETDs inSri Lankahave been replaced by TTDs, presumably under the Readmission Agreement.\u00a0 Reference in this determination to a TTD includes ETDs before the change of nomenclature.<\/td>\n<\/tr>\n
          TULF<\/strong><\/td>\nTamil United Liberation Front<\/td>\n<\/tr>\n
          UKBA<\/strong><\/td>\nUnited Kingdom Border Agency<\/td>\n<\/tr>\n
          UNCAT<\/strong><\/td>\nUN Committee Against Torture<\/td>\n<\/tr>\n
          UNHCR<\/strong><\/td>\nUnited Nations High Commissioner for Refugees<\/td>\n<\/tr>\n
          \u201cwatch\u201d list<\/strong><\/td>\nA computerised list of those whom the Sri Lankan security services consider of interest, whether for separatist or criminal activities.\u00a0 Accessible at the airport.<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

          Tamil Celebrations<\/strong><\/p>\n

            \n
          1. The evidence indicates that the following celebrations, held every year, are specific to the Tamil community and that many Tamils may wish to participate in celebrating them, both within Sri Lanka and in the diaspora:<\/li>\n<\/ol>\n\n\n\n\n\n\n
            Tamil name[2]<\/span><\/strong><\/a><\/span><\/strong><\/td>\nTranslation<\/span><\/strong><\/td>\nWhen celebrated<\/span><\/strong><\/td>\n<\/tr>\n
            Maaveerar Naal<\/strong><\/td>\nHeroes Day<\/em><\/td>\n27 November annually (<\/em>the day following the birthday of the late LTTE founder and leader Thiruvenkadam Velupillai Prabhakaran (\u2018Prabhakaran\u2019)<\/em><\/td>\n<\/tr>\n
            Pongu Thamil:<\/strong><\/td>\nTamil Uprising\/<\/em>Tamil Upsurge <\/em><\/td>\nDates vary. Commemorates a series of spontaneous demonstrations in the 1990s and during the peace process years.<\/td>\n<\/tr>\n
            Mahaveera[3]<\/strong><\/a> <\/strong><\/td>\nMartyrs Day<\/em><\/td>\n18 May 2010 and thereafter, marking the anniversary of the end of the civil war inSri Lankaon 18 May 2009<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

            Evidence before the Upper Tribunal<\/strong><\/p>\n

              \n
            1. The hearing of these appeals took place over nine days between 5 February and 19 April 2013 (excluding Case Management Review hearings which guided the preparation of the case between September 2012 and the full hearings).\u00a0 TAG sought and was granted leave to intervene on behalf of issues concerning the Tamil diaspora in general.\u00a0 We are indebted to TAG for making available additional experts, evidence and argument which would not otherwise have been before us.<\/strong><\/li>\n
            2. All parties, including TAG, made extensive written submissions before, during and after the main hearing, as well as oral submissions at the end of the case.<\/li>\n
            3. We received approximately 5000 pages of documentary evidence.\u00a0 We had the benefit of oral evidence from seventeen expert and country witnesses, including three witnesses for the respondent with detailed knowledge regarding the preparation of Operational Guidance Notes and Country of Origin Reports, and of entry procedures at Bandaranaike Airport, Colombo.\u00a0 Four more experts gave evidence by witness statement or report but were not available for cross-examination.<\/li>\n
            4. We also heard from two of the appellants to clarify matters which had arisen after their original evidence was given to the First-tier Tribunal.\u00a0 The evidence is dealt with when we consider each of the appellant\u2019s particular circumstances at the end of this determination.\u00a0 The third appellant was not called:\u00a0 medical evidence indicated that he might not be fit to testify and his representatives elected not to risk any further harm to his mental state.<\/li>\n
            5. The witness evidence and other relevant information are set out in a series of appendices to this determination.\u00a0 For ease of reference, those appendices and the material they contain are as follows:<\/li>\n<\/ol>\n

               <\/p>\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n
              Appendix<\/span><\/strong><\/td>\nEvidence <\/span><\/strong><\/td>\n<\/tr>\n
              \n

              A<\/strong><\/p>\n<\/td>\n

              		Documents before Upper Tribunal<\/td>\n<\/tr>\n
              \n

              B<\/strong><\/p>\n<\/td>\n

              		Agreed issues<\/td>\n<\/tr>\n
              \n

              C<\/strong><\/p>\n<\/td>\n

              		UKBA:<\/em>Mr Malcolm LewisMr Mike GallagherMr Jonathan WrightMrs Anita Athi-Parkin (witness statement)<\/td>\n<\/tr>\n
              \n

              D<\/strong><\/p>\n<\/td>\n

              		IAGCI <\/em>Dr David Rampton<\/td>\n<\/tr>\n
              \n

              E<\/strong><\/p>\n<\/td>\n

              		Freedom from Torture:<\/em>Professor Sir Nigel RodleyMs Jo Pettitt<\/td>\n<\/tr>\n
              \n

              F<\/strong><\/p>\n<\/td>\n

              		Human Rights Watch:<\/em>Mr Brad AdamsMs Charu Lata Hogg<\/td>\n<\/tr>\n
              \n

              G<\/strong><\/p>\n<\/td>\n

              		Tamils Against Genocide:<\/em>Ms Jan JananayagamMr Alan Keenan<\/td>\n<\/tr>\n
              \n

              H<\/strong><\/p>\n<\/td>\n

              		Outsider TV<\/em>Callum Macrae<\/td>\n<\/tr>\n
              \n

              I<\/strong><\/p>\n<\/td>\n

              		Professor Anthony Good<\/td>\n<\/tr>\n
              \n

              J<\/strong><\/p>\n<\/td>\n

              		Dr Chris Smith<\/td>\n<\/tr>\n
              \n

              K<\/strong><\/p>\n<\/td>\n

              		Other country witnesses:
              \n<\/em>Dr Rohan GunaratnaMr Paikaisothy SaravanamuttuMr P Anton PunethanayagamDr Suthaharan Nadarajah<\/em><\/td>\n<\/tr>\n
              \n

              L<\/strong><\/p>\n<\/td>\n

              		Press reports<\/td>\n<\/tr>\n
              \n

              M<\/strong><\/p>\n<\/td>\n

              		Tabular analysis of material from unreported Tribunal determinations submitted by TAG and third appellant<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n
                \n
              1. We have had regard to all of the material before us, written and oral.\u00a0 We mean no disrespect to the parties, all of whom put in a great deal of work to assist the Upper Tribunal in understanding the present situation in Sri Lanka, when we say that we do not intend to set it out in extenso<\/em> in this determination.<\/li>\n<\/ol>\n

                Procedural issues <\/strong><\/p>\n

                  \n
                1. There were a number of procedural issues during the hearing, most of which concerned the admissibility or disclosure of certain evidence.\u00a0 A good deal of evidence was served late, including during the hearing.\u00a0 In most cases, the late service did not cause any lasting difficulty and requires no comment now.\u00a0 There are three procedural issues which do require analysis in this determination.<\/li>\n<\/ol>\n

                  Unrelated<\/strong> Tribunal determinations <\/strong><\/p>\n

                    \n
                  1. The parties, and in particular TAG, had obtained copies of 52 positive asylum \u00a0determinations (mostly First-tier Tribunal determinations, but including some unreported Upper Tribunal decisions and four positive decisions by the respondent at first instance) in which the accounts of Sri Lankan appellants had been found credible and their appeals allowed.\u00a0 The appellants in those cases all stated that they had been tortured after returning toSri Lanka.\u00a0 In 16 of the determinations relied upon, the respondent was not represented, such that the appellant\u2019s account was untested by cross-examination. \u00a0All of the determinations were unchallenged by any onward appeal. The determinations were unreported and the appellants concerned were not contacted to seek consent for the use of their personal information.<\/li>\n
                  2. We received oral and written submissions from all parties (including TAG) on the admissibility of these determinations and the weight which we should give to them, if admitted.<\/li>\n
                  3. For the respondent, Mr Hall argued, first, that it is a general principle of civil litigation that previous findings of fact do not set precedents for later cases between different parties (see paragraph 64 of AA(Somalia) and AH (Iran) v Secretary of State for the Home Department <\/em>[2007] <\/em>EWCA Civ 1040), and second, that the general principle is maintained in immigration appeals save (a) on the basis \u00a0identified in the IAT\u2019s starred decision in Devaseelan <\/strong>[2002] UKIAT 000702*, <\/em>where there is a familial link between the appellants in each determination, or (b) in narrow circumstances set out in the judgment of Lord Justice Carnwath (as he then was) in AA (Somalia) <\/em>at paragraphs 69-70 thereof:<\/li>\n<\/ol>\n

                    \u201c69.\u00a0\u00a0\u00a0\u00a0 \u2026 exceptions to the ordinary principle that factual decisions do not set precedents (see above) should be closely defined. To extend the principle to cases where there is no more than an “overlap of evidence” would be too wide, and could introduce undesirable uncertainty. In all the cases in which the principle has been applied so far, including Ocampo<\/em>, the claims have not merely involved overlapping evidence, but have arisen out of the same factual matrix, such as the same relationship or the same event or series of events. I would respectfully read Auld LJ’s reference to “cases such as the present” as limiting the principle to such cases.<\/p>\n

                    70. \u00a0\u00a0\u00a0\u00a0\u00a0 Secondly, in applying the guidelines to cases involving different claimants, there may be a valid distinction depending on whether the previous decision was in favour of or against the Secretary of State. The difference is that the Secretary of State was a direct party to the first decision, whereas the claimant was not. It is one thing to restrict a party from re-litigating the same issue, but another to impose the same restriction on someone who, although involved in the previous case, perhaps as a witness, was not formally a party. This is particularly relevant to the Tribunal’s comments, in Devaseelan<\/em>, on what might be “good reasons” for reopening the first decision. It suggested that such cases would be rare. It referred, for example, to the “increasing tendency” to blame representatives for unfavourable decisions by Adjudicators, commenting:<\/p>\n

                    “An Adjudicator should be very slow to conclude that an appeal before another Adjudicator has been materially affected by a representative’s error or incompetence\u2026”<\/p>\n

                    I understand the force of those comments where the second appeal is by the same claimant, but less so where it is by a different party, even if closely connected. Although I would not exclude the Devaseelan <\/em>principles in such cases (for example, the hypothetical series of cases involving the same family, cited in TK<\/em>), the second Tribunal may be more readily persuaded that there is “good reason” to revisit the earlier decision.\u201d<\/p>\n

                      \n
                    1. Mr Hall\u2019s third point was that the judges in these determinations were not making factual findings for wider use; the fourth point was that it was impermissible to aggregate individual findings in order to demonstrate a general factual probability.\u00a0 His final point is that these determinations were made based on country guidance which is to be reconsidered in the present determination and which we may need to modify.<\/li>\n
                    2. The appellants\u2019 arguments in their closing submissions on admissibility are based on CM (EM country guidance; disclosure) Zimbabwe<\/em> CG [2013] UKUT 59 (IAC) which sets out the flexibility available to the Upper Tribunal in receiving relevant information, and TK<\/em> (Consideration of Prior Determination \u2013 Directions) <\/em>Georgia [2004] UKIAT 00149, which was taken into account by Carnwath LJ in reaching his conclusions in AA (Somalia)<\/em> and therefore is not in conflict with the guidance there given.<\/li>\n
                    3. We were referred to the Senior President\u2019s Practice Direction of 15 February 2010, given by Lord Justice Carnwath (as he then was) as Senior President of Tribunals.\u00a0 The relevant guidance is at paragraph 11:<\/li>\n<\/ol>\n

                      \u201c11 Citation of unreported determinations<\/strong><\/p>\n

                      11.1 A determination of the Tribunal which has not been reported may not be cited in proceedings before the Tribunal unless:-<\/p>\n

                      (a) the person who is or was the appellant before the First-tier Tribunal, or a member of that person\u2019s family, was a party to the proceedings in which the previous determination was issued; or<\/p>\n

                      (b) the Tribunal gives permission. \u2026<\/p>\n

                      11.3 Permission under paragraph 11.1 will be given only where the Tribunal considers that it would be materially assisted by citation of the determination, as distinct from the adoption in argument of the reasoning to be found in the determination. Such instances are likely to be rare; in particular, in the case of determinations which were unreportable (see Practice Statement 11 (reporting of determinations)). It should be emphasised that the Tribunal will not exclude good arguments from consideration but it will be rare for such an argument to be capable of being made only by reference to an unreported determination. …\u201d<\/p>\n

                        \n
                      1. It is not suggested that the determinations now sought to be adduced fall within 11.1(a).\u00a0 The question is the exercise of our discretion under paragraph 11.1(b) to admit these determinations, which we do by reference to the guidance in AA (Somalia), <\/em>which is binding upon us.\u00a0 We are conscious that these are asylum appeals and that anxious scrutiny of all relevant material is required.\u00a0 Anxious scrutiny is the more relevant in country guidance analysis to ensure that we have as broad a picture as possible of the current situation in Sri Lanka.\u00a0 However, we find nothing in the appellants\u2019 arguments which inclines or entitles us to depart from the guidance of the Court of Appeal in AA (Somalia).\u00a0 <\/em>We are not persuaded that these documents should be admitted; they do not come within the range of documents contemplated as likely to be admitted in that judgment.<\/li>\n
                      2. Even if we were to admit these determinations, the weight we could give to them is constrained by a number of factors.\u00a0 First, these determinations are relied upon for their factual findings rather than their legal analysis, which would be based on the country guidance at the time, which we review in the present determination, in the light of the evidence now before us as to the post-conflict situation inSri Lanka.\u00a0 Second, just under a third of these determinations reflect hearings where the Secretary of State was not represented and in which the appellant\u2019s evidence was untested by cross-examination; and in many cases, as Ms Jegarajah told us, the factual matrices relied upon are insufficiently developed because of the course which the arguments took before an individual judge.<\/li>\n
                      3. At the end of the hearing, we were presented with a tabular analysis prepared by Mr Hays on behalf of the respondent and annotated on behalf of the third appellant by Ms Pickup, setting out the facts relied upon in the unreported determinations. In his submissions, Mr Hall accepted the accuracy of the information added by Ms Pickup\u2019s annotations. \u00a0\u00a0Given that the contents of the tabular analysis are not in dispute, we have had regard to the information there summarised[4]<\/a>.<\/li>\n
                      4. The weight that we give to this evidence is shaped by our conclusion that the underlying determinations are not admissible. At best this data is reliable as evidence that a number of appeals by Sri Lankan nationals have been allowed in the light\u00a0 of country guidance which we are reconsidering.<\/li>\n
                      5. The fact of the appeals having been allowed indicates that certain past ill-treatment by the Sri Lankan authorities was accepted by Tribunal judges in individual cases. The data is part of a wide\u00a0range of evidence\u00a0that we have heard and read; this assists us in examining the situation today.\u00a0 However, had there been any dispute as to the contents of the tabular analysis, we would have excluded it for the same reasons as we have excluded the determinations from which that material was drawn.<\/li>\n<\/ol>\n

                        The respondent\u2019s duty of disclosure <\/strong><\/p>\n

                          \n
                        1. On 31 January 2013, just before these hearings, the Upper Tribunal promulgated a guidance decision on the respondent\u2019s duty of disclosure in CM (EM country guidance; disclosure) Zimbabwe CG <\/em>[2013] UKUT 59 (IAC), which set out the respondent\u2019s duty to furnish information within her possession or control in proceedings before us.\u00a0 The material paragraph of the judicial headnote is paragraph (1):<\/li>\n<\/ol>\n

                          (1) There is no general duty of disclosure on the Secretary of State in asylum appeals generally or Country Guidance cases in particular. The extent of the Secretary of State’s obligation is set out in R v SSHD ex p Kerrouche No 1<\/span> [1997] Imm AR 610, as explained in<\/em> R (ota Cindo) v IAT<\/span> [2002] EWHC 246 (Admin); namely, that she must not knowingly mislead a court or Tribunal by omission of material that <\/em>was known or ought to have been known to her.<\/em><\/p>\n

                            \n
                          1. Two disclosure issues arose thereunder.\n
                              \n
                            1. \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 i.\u00a0\u00a0\u00a0\u00a0\u00a0 We were made aware, during the evidence of the UKBA witnesses, of the existence of a Bilateral Readmission Agreement between theUnited KingdomandSri Lanka.\u00a0 The respondent refused to disclose a copy of that agreement, but we consider that we are able to deduce its relevant contents sufficiently from the procedures adopted.\u00a0 No disclosure order was made for this document.<\/li>\n
                            2. \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 ii.\u00a0\u00a0\u00a0\u00a0\u00a0 The appellants sought disclosure of information in the possession or control of the respondent regarding their contention that there was a significant trend in 2011-2012 of students with multiple entry visas, returning toSri Lankaand coming to harm there, and then seeking asylum in theUnited Kingdom(the \u201crecent returnees\u201d profile).\u00a0 They had been endeavouring to obtain information from the respondent about cases in her database fitting the \u201crecent returnees\u201d profile.<\/li>\n
                            3. In the light of the CM <\/em>guidance, the respondent accepted that she had a duty to make enquiries to enable her to assist the Tribunal, stating that the information was not retained on her database in the form sought.\u00a0 It was not possible for her to comply with a request to analyse the record of all individuals on multiple entry visas who had returned and made asylum applications, since no adequate computerised records of departures and returns on multiple entry visas is maintained.<\/li>\n
                            4. The original requests were impermissibly wide but they were refined at the hearing, after discussions between the parties and the Tribunal.\u00a0 The agreed version of the disclosure order, made with reference to an earlier Note on Disclosure by the respondent, was as follows:<\/li>\n<\/ol>\n<\/li>\n<\/ol>\n

                              \u201c2. In respect of the enquiries undertaken by the Respondent pursuant to paragraph 23 of her note on Disclosure of 10 December 2012, the Respondent shall \u2026 provide in writing to the Tribunal and the parties:<\/p>\n

                              a.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The wording of all questions asked of the Asylum Regional Offices;<\/p>\n

                              b.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 What, if any, information was given in response by each office to each question.<\/p>\n

                              3.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The Respondent shall\u2026provide to the parties and the Upper Tribunal the number of Sri Lankan nationals who were granted refugee status in the period 1 October 2012 to 31 December 2012 who had previously been removed, including the number of cases in which there was an allegation of torture following return toSri Lanka.<\/p>\n

                              4.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The Respondent shall confirm \u2026 whether she accepts that there is a pattern of persons with lawful residence in the United Kingdom returning to Sri Lanka and being detained and tortured in Sri Lanka after return, and thereafter being granted asylum (whether in response to an initial claim or following an appeal).\u201d<\/p>\n

                                \n
                              1. The respondent made enquiries of her ten regional asylum casework centres and also provided some statistical information.\u00a0 Six regions made partial replies, albeit statistically inadequate and largely anecdotal.\u00a0 The remaining caseworker regions provided no information at all.\u00a0 The outcome of the respondent\u2019s enquiries was provided to the Tribunal in a statement from Mrs Athi-Parkin, which stated that the respondent was aware that in a small number of cases, but not on the scale which the appellants and TAG contended, applicants fitting the \u201crecent returnees\u201d profile had been granted asylum.<\/li>\n<\/ol>\n

                                HRW\/FFT\/TAG reports \u2013 confidentiality <\/strong><\/p>\n

                                  \n
                                1. During 2012, HRW, FFT and TAG all produced major reports and several press releases asserting that varying numbers of individuals had been ill-treated on return toSri Lankaand asking theUnited Kingdomgovernment to desist from forced returns.\u00a0 The majority of the press releases were timed for a day or two before known charter flights.\u00a0 It was not clear initially how many of the individuals in each report were the same, nor whether the respondent was aware of their circumstances.<\/li>\n
                                2. The appellants and TAG by their Counsel and their witnesses insisted throughout the hearing on absolute confidentiality in relation to any personal information about the individuals concerned. We were not given access to the medical evidence underlying the HRW and FFT reports and the facts provided were heavily redacted.<\/li>\n
                                3. The respondent had been asking, during 2012, for details of the individuals whose experiences were relied upon, to enable them to be verified on her own databases. TAG supplied the determinations it had found, most of which were available in September 2012.\u00a0 HRW and FFT declined to disclose to the respondent any identifying details of the individuals whose circumstances were summarised in their various reports.\u00a0 It was therefore impossible for the respondent to make any assessment of the validity of the allegations in the HRW and FFT press releases and reports issued during 2012.<\/li>\n
                                4. Even now, it has not been possible to establish with certainty whether there is an overlap between the cases of which the respondent is aware, and those relied upon by the appellants. \u00a0In each group, on close analysis, the examples relevant to the “recent returnees” profile are very few, and the evidence provided is anecdotal rather than statistically significant. This is partly because the information provided by the respondent was not precise or consistent across her regional casework groups, and partly because the appellants and the NGOs did not wish to share names or other identifying details with the respondent for that purpose. The parties assisted us by comparing the underlying names and details with each other and attempting to resolve the question of how many of their clients overlapped.<\/li>\n
                                5. We have before us such factual details as the respondent was able to produce, together with tabular analysis of the examples relied upon by the appellants.\u00a0 We have considered what weight we can place on these examples.\u00a0 It is plain that there are a small number of returned Tamils, mainly students, who were granted asylum on application or on appeal, and who fit the \u201crecent returnees\u201d profile.\u00a0 None of the parties (including TAG) relies on cases where harm or detention occurred on return to individuals in other categories where multiple entry visas are given.<\/li>\n<\/ol>\n

                                  Ms Hogg and her HRW research<\/strong><\/p>\n

                                    \n
                                  1. There was a particular difficulty with the oral evidence of Ms Charu Lata Hogg, a researcher at Chatham House, and former employee of HRW.\u00a0 Her evidence was based on research which she had carried out for HRW, in relation to which she was under a strong duty of confidentiality which prevented her giving any evidence other than that which was in her statement, or disclosing the name of her client, which placed her in a very difficult position during the first day of her oral evidence on 8 February 2013.<\/li>\n
                                  2. The report based on Ms Hogg\u2019s research was in an advanced draft by 8 February 2013, but its publication had been set for 28 February 2013 (known to TAG and HRW to be the date of the next charter flight removal to Sri Lanka). The Tribunal asked for, and eventually received, evidence from HRW as to the circumstances in which that close timing had occurred.\u00a0 We will deal with the response by Mr Brad Adams of HRW (received in the form of two witness statements) later in this determination.\u00a0 <\/strong><\/li>\n
                                  3. We adjourned Ms Hogg\u2019s evidence to the first available date after the report was published.\u00a0 Ms Hogg was recalled to give further oral evidence on 15 March 2013, at which time she was released from confidentiality at least in relation to the contents of that report and the body which commissioned it.\u00a0 She considered that she remained bound not to disclose the names or any personal details of those whose cases were considered in her research.<\/strong><\/li>\n<\/ol>\n

                                    Updating the country guidance <\/span><\/strong><\/p>\n

                                    Existing guidance <\/strong><\/p>\n

                                      \n
                                    1. The core of the existing country guidance dates back to the decision in LP <\/em>in 2007, which identified twelve \u201crisk factors\u201d\u2019 which, singly or together, indicated an enhanced risk of persecution or serious harm for those returning to Sri Lanka at the height of the internal armed conflict between the LTTE and the GOSL.\u00a0 A number of factors (which became known as the LP\/TK <\/em>factors) were identified as being likely to raise official interest in returnees from the United Kingdom, particularly those on charter flights.\u00a0 The evidence underlying the LP <\/em>decision was up to date as at April 2007 and focused principally on the risk of being identified and detained atBandaranaikeAirport inColombo, or inColombo itself.\u00a0 The AIT considered that the majority of returning failed asylum seekers were processed relatively quickly at the airport and with no difficulty beyond some possible harassment.<\/li>\n
                                    2. The AIT in LP <\/em>emphasised that in each case the analysis of risk was fact-specific:\u00a0 in order for an individual to establish a real risk or reasonable degree of likelihood of persecution or serious harm if he or she were returned to Sri Lanka, the \u201crisk factors\u201d\u2019, and the weight to be ascribed to them, individually and cumulatively, must be considered in the light of the credible facts established by such individual, having regard to the lower standard applicable in international protection claims.<\/li>\n
                                    3. In TK, <\/em>decided soon after the end of the civil war in Sri Lanka, <\/em>the AIT upheld the approach in LP <\/em>but considered that, if anything, the situation for returning failed Tamil asylum seekers had improved. The evidence in TK <\/em>was current as at 26 October 2009 and is therefore now almost three and a half years old.\u00a0 The civil war has ended and that has of course brought change, not just in the circumstances withinSri Lanka but also in the present concerns of the Sri Lankan authorities which may entail adverse interest in returning Sri Lankan citizens, including risks requiring protection under the Refugee Convention or Refugee Qualification Directive.<\/li>\n
                                    4. In a Policy Bulletin in October 2012[5]<\/a>, reissued in March 2013, the UKBA Country Specific Litigation Team, Operational Policy and Rules Unit set out the history of the TAG, HRW and FFT reports and press releases issued during 2012.\u00a0 The bulletin, even when reissued, did not engage with new UNHCR Guidelines issued in December 2012.<\/li>\n
                                    5. On 21 December 2012, the UNHCR published new \u201cEligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers fromSri Lanka\u201d, the first such guidelines since July 2010. \u00a0The change in UNHCR\u2019s assessment contributes to our view that now is the time for the Upper Tribunal to revise its guidance onSri Lanka.<\/li>\n
                                    6. We considered that it was appropriate, in the light of the perceived changes and new UNHCR guidance, for the Upper Tribunal to reassess its own guidance on Sri Lanka.\u00a0 We wanted to consider whether the situation remained as it had been in TK, <\/em>that is to say, that the country was settling down into a peaceful recovery from a long and brutal civil war, or whether the situation inSri Lanka was indeed deteriorating as suggested and new guidance was needed.\u00a0 For the reasons we set out in this determination, we have concluded that the guidance needs to be replaced on the basis of the situation now.<\/li>\n<\/ol>\n

                                      Agreed issues <\/strong><\/p>\n

                                        \n
                                      1. With the assistance of the parties, an exhaustive list was agreed of the issues relevant to the new country guidance and to these appeals.\u00a0 The agreed list is at Appendix B.\u00a0 Only questions 2-9 are of general interest and inform our guidance.\u00a0 Questions under heading 1 deal with the task of a country guidance determination and need no elaboration.\u00a0 The issues set out at paragraphs 10A, 10B and 10C are specific to each individual appellant.<\/li>\n
                                      2. The areas of general interest which the Tribunal and the parties agreed to consider concerned the circumstances of exit from Sri Lanka, forcible return to Sri Lanka,\u00a0 entry and exit procedures at Colombo airport, with particular reference to charter flights, living in Colombo (whether that is an appellant\u2019s home area, or as an internal relocation option); issues relating to residence and\/or LTTE or anti-government activity in United Kingdom; the position of war crimes witnesses; the rehabilitation process for former LTTE cadres and its use today; and a small number of other factors which may be relevant to the assessment of risk.<\/li>\n
                                      3. We have not considered whether asylum claims are being asserted in the United Kingdombased on self-inflicted scarring, or scarring inflicted at an appellant\u2019s request, in the United Kingdom, Sri Lanka, or elsewhere.\u00a0 The Upper Tribunal has identified another appeal where that issue may be relevant.\u00a0 No such allegation is made in respect of any of the present appellants. <\/strong><\/li>\n<\/ol>\n

                                        Evidence<\/strong><\/p>\n

                                          \n
                                        1. The oral and written evidence which we received is set out fully in the Appendices to this determination.\u00a0 There was strikingly broad agreement between the witnesses as to the militarisation of the Northern Provinceand as to the concerns of the government about possible resurgence in the diaspora of Tamil separatism and\/or of the LTTE or a similar Tamil separatist organisation.\u00a0 We shall refer to relevant aspects of the evidence when discussing the individual issues. The following is a concise summary of the other points which we draw from the evidence before us:<\/strong><\/li>\n<\/ol>\n

                                          Appendix C \u2013 the UKBA witnesses <\/strong><\/p>\n

                                            \n
                                          1. The evidence from the UKBA witnesses was as follows.\u00a0 Mr Malcolm Lewis gave a clear picture of the operation of the BHC\u2019s Migration Support team (the MDO and MSO) at the airport.\u00a0 The MSO and (where there is one in place) the MDO meet all charter flights.\u00a0 Arrangements at the airport have been improved.\u00a0 No arriving passengers are subjected to ill-treatment at the airport, the authorities being very well aware of the allegations levelled against them in the past.\u00a0 Returnees were interviewed by the DIE and SIS at the airport, their onward details taken, and permitted to proceed, unless there was a \u201cstop\u201d notice indicating a court order or arrest warrant against them.<\/li>\n
                                          2. They were given details of how to contact the BHC after their onward journey and sometimes did so, often seeking advice on how to return to theUnited Kingdom, but sometimes making allegations of ill-treatment.\u00a0 The only one he had been able to investigate proved to be significantly overstated: the appellant said he had been ill-treated and that his head was bleeding, but doctors inJaffnarefused to assess his injuries.\u00a0 He returned toColombofor medical assessment and it turned out that his shins had been kicked at the airport.<\/li>\n
                                          3. Returnees were asked at the airport about addresses they were associated with before leaving the country, their last address in theUnited Kingdom, and their onward address inSri Lanka.\u00a0 They might be asked for details of schools, former employers, and travel history, or their reasons for returning to theUnited Kingdom.\u00a0 They might be asked to sign a declaration that the details were true. He could not say whether the returnees were asked about their LTTE links as he was not allowed to be in the room during questioning.<\/li>\n
                                          4. Where individuals returned other than on a charter flight, they could walk through the airport on their own passport.\u00a0 They were unlikely to be of interest even if travelling on a TTD, unless they were on a \u201cstop\u201d list.\u00a0 Those on a \u201cwatch\u201d list would be monitored later by the security services but not stopped.\u00a0 Sometimes an airline might notify DIE about a particular returnee and if so, that returnee was usually (but not always) handed to DIE at the airport.<\/li>\n
                                          5. Onward addresses were checked by the police or the CID within seven days from arrival.\u00a0 Details of offences in theUnited Kingdomwere not passed to the Sri Lankan authorities by the British authorities. Most people were on their way quickly at the airport though some waited two to four hours.<\/li>\n
                                          6. Mr Lewis was aware of allegations that passports were not scanned on exit if a suitable bribe was paid:\u00a0 however, exit was through an open area with 15-20 desks all visible to the Chief Immigration Officer who sat behind.\u00a0 He did not think it was possible to switch off a terminal without being discovered.<\/li>\n
                                          7. Mr Gallagher dealt with the preparation of Country of Origin Reports.\u00a0 He also represented the country of origin service in its meetings with the Independent Advisory Group on Country Information (IAGCI), an external assessor.\u00a0 He explained the process of production of the country of origin documents, which he supervised.\u00a0 He confirmed that some of the criticisms made by Dr David Rampton in his report for IAGCI on the March 2012 Country of Origin Report had been accepted by the respondent, but none had yet been incorporated into the her reports, guidance notes or bulletins.<\/li>\n
                                          8. Mr Wright is a member of the respondent\u2019s Country Specific Litigation Team (CSLT) which prepares the Operational Guidance Notes (OGNs).\u00a0 The OGNs are supervised by the IAGCI and reflect all relevant information and case law.\u00a0 CSLT works with external sources (in particular, Still Human Still Here and the FFT submissions to UNCAT).\u00a0 When the December 2012 OGN was drafted, CSLT consulted case owners to see whether the existing main categories remained current.\u00a0 The response was that no new trends in asylum applications were highlighted, including \u2018individuals who had previously had valid leave to be in theUnited Kingdom\u2019.<\/li>\n
                                          9. CSLT also issues ad hoc<\/em> Country Policy Bulletins on particular issues.\u00a0 He was responsible for the Bulletin first published on 15 October 2012 and republished a week later, changes having been made in response to comments from TAG.\u00a0 The rest of Mr Wright\u2019s evidence concerns matters of detail in relation to the HRW cases and is dealt with later in this determination.<\/li>\n
                                          10. Mrs Athi-Parkin provided a statement on 13 February 2013 in response to a directions order from the Tribunal, requiring the respondent to disclose her knowledge of any upward trends in asylum claims based on detention or torture after return to Sri Lanka, \u2018even where the individual had not previously sought asylum but had simply been visiting or studying here\u2019.\u00a0 The statement is set out in full in the Appendix and analysed later in this determination.<\/li>\n
                                          11. After setting out the information produced, Mrs Athi-Parkin said that: <\/strong><\/li>\n<\/ol>\n

                                            \u201c\u2026the respondent accepts that there is a pattern of persons with lawful residence in theUnited Kingdomwho claim to have returned toSri Lanka, and to have been detained and tortured there, and who have then returned to theUnited Kingdomand sought asylum.\u00a0 The respondent accepts that some of these individuals have been granted asylum by the Secretary of State or on appeal to the Tribunal.\u201d<\/p>\n

                                            Appendix D \u2013 Dr David Rampton<\/strong><\/p>\n

                                              \n
                                            1. Dr Rampton commented for IAGCI on the March 2012 Country of Origin Report onSri Lanka.\u00a0 His evidence covers that consultancy report, in which he criticised the respondent for failure to deal with certain specific cases and also for a lack of breadth in the sources relied upon.<\/li>\n
                                            2. His report deals principally with his own knowledge and opinions in relation to the issues before us.\u00a0 He noted that:<\/strong><\/li>\n<\/ol>\n

                                              \u201c12. \u2026President Rajapaksa himself \u2026 on multiple occasions in speeches and interviews has blamed the Tamil Diaspora for driving the conflict and for making impossible demands that prohibit a peaceful settlement. For this reason the GoSL has engaged in surveillance of the Tamil Diaspora in European and Western societies as an attempt to prevent and\/or contain the (re-)emergence of the LTTE or another militant Tamil nationalist movement.\u00a0 It is worth noting that the LTTE did operate as a global network with offices, funding networks, arms procurement and commercial shipping arms located amongst and directed from pro-LTTE sections of the Tamil Diaspora.<\/p>\n

                                              13. As a result, the GOSL\u2019s attitude towards failed asylum seekers is that they represent a potential security threat to the Sri Lankan state and society and that any potential suspect aligned to Tamil nationalism must therefore be subject to close scrutiny and investigation by the security and intelligence forces. \u2026<\/p>\n

                                              18. \u2026Where individuals have revealed information that illuminates aspects of the civil war crimes issue (including the scale of civilian casualties), the GOSL has used coercive pressure and\/or threat to force individuals to retract statements. Many international observers believe that this was the case with the five Tamil Doctors who had provided medical services in the Vanni during the last phase of the civil war, who after making statements about the extent of civilian casualties were then detained and accused of giving false information to the media by the GoSL. Their original claims and predicament was then backed up by Wikileaks cables between the US Embassy and Washington.<\/p>\n

                                              The GOSL has also suffered increasing opprobrium and pressure in the wake of war crimes allegations amongst the international community including a successful US-backed resolution adopted at the UN Human Rights Council in March 2012. All of these factors indicate that however hardnosed the GoSL may appear at times over the civil war crimes issue, it is and always has been concerned to keep as tight a lid as possible on the release of information about the issue. \u2026\u201d<\/p>\n

                                                \n
                                              1. Dr Rampton was particularly concerned about the threat to judicial independence within Sri Lanka:<\/strong><\/li>\n<\/ol>\n

                                                20. \u2026although many of the problems with both media freedom and the judiciary are long- standing, it should be noted that the spread of authoritarianism has centralized more power in the hands of the President, his family, his patronage machine and removed the weak existing checks that might prevent abuses operative within state apparatuses. The recent impeachment of the Chief Justice Shirani Bandaranayake is yet another example of the ability of the President to ride roughshod over constitutional procedure out of political fiat. These tendencies do have an impact upon the media and its ability to operate freely and upon the criminal justice system, both of which in turn will affect the willingness of people to speak out where they have suffered abuse, torture and degrading treatment by the authorities and security forces.<\/p>\n

                                                21.\u00a0 Firstly it should be noted that any complaint about torture or other mistreatment exists within a generalized situation where access to due judicial process, rule of law and protection is problematic because the judicial system lacks independence, transparency, accountability and safeguards to protect victims of abuse and torture and witnesses to such crimes. This makes the willingness of individuals who have suffered torture or abuse, to report these incidents less likely as they have little assurance of protection from authorities in a situation where it is widely recognized that police and security forces are widely implicated in forms of torture, degrading treatment and abuse in detention and in order to obtain confessions, with reports indicating that it is widespread in Sri Lanka\u2019s policing practices and not just utilized for high-profile targets.<\/p>\n

                                                22.\u00a0 These same reports also indicate regular flouting of habeas corpus, irregular trial procedures, intimidation of lawyers and denial of access to legal counsel. Human rights advocacy reports have also stated that lawyers, the police and judges are deeply inter-dependent socially, professionally and financially and this sometimes precludes the willingness of defence lawyers or judges to challenge police evidence. It is reasonable to deduce that such a context acts as a significant constraint upon the willingness of people to report or publicise incidents where they have suffered torture or abuse and therefore in turn a check upon the quantity of cases that appear in the media.\u201d<\/p>\n

                                                  \n
                                                1. There was almost no post-arrival monitoring by NGOs or the BHC of what happened to returnees.\u00a0 He had no reason to doubt reports of abductions and arrests (\u2018white van abductions\u2019) at or near the airport, at bus stops or at checkpoints.\u00a0 His research was based on internet materials, in particular TamilNet, and on personal sources whom he spoke to when he needed information. <\/strong><\/li>\n<\/ol>\n

                                                  Appendix E \u2013 FFT witnesses<\/strong><\/p>\n

                                                    \n
                                                  1. There were two witnesses for FFT, the first being Professor Sir Nigel Rodley, who set out the management structure of FFT and the scale of the important work it does in helping individual torture survivors and providing medico legal reports where appropriate. \u00a0Professor Rodley has a long history of working with testimony of torture, both at Amnesty International (17 years) and in his nine years as UN Special Rapporteur on Torture. \u00a0He had oversight of the FFT submissions to UNCAT in November 2011 and the 13 September 2012 Briefing, but the research was that of Ms Jo Pettitt. <\/strong><\/li>\n
                                                  2. Professor Rodley had written to the Minister to ask him to suspend removal of Tamils while the UKBA policy was adjusted to reflect the evidence produced in those reports.\u00a0 The Minister had asked for further information on the individuals concerned.\u00a0 Professor Rodley strongly agreed with FFT\u2019s refusal to provide that information.\u00a0 He gave six reasons:\u00a0 breach of client confidentiality and the difficulty of obtaining consent from the individuals after their details had been used; the high regard in which FFT was held, including expressly by UKBA, such that its word should be enough; UKBA\u2019s request was perceived as part of a pattern of other governments which were also seeking to challenge its research methods; possible deterrence of individuals whom FFT might ask to take part in future research projects; the best interests of FFT\u2019s clients; and FFT\u2019s status as a source of expert evidence against the Secretary of State,\u00a0 such that discussing the details directly with the UKBA was inappropriate.<\/li>\n
                                                  3. Professor Rodley was also responsible for writing to the Treasury Solicitor to complain about the content of the UKBA October 2012 Policy Bulletin and the comments therein about FFT.\u00a0 The complaint had been acknowledged but not answered.<\/li>\n
                                                  4. In his oral evidence, Professor Rodley accepted that even documented evidence of torture was not evidence of how or where it had occurred: however, he had confidence in the skills of FFT\u2019s experienced clinicians and, having sat in on some of their interviews, also in the rigour of their approach.\u00a0 He considered they were more reliable assessors of torture accounts than decision makers or judges, who were hampered by the quality of representation before them and their lack of medical expertise.<\/li>\n
                                                  5. In relation to the confidentiality point, Professor Rodley\u2019s oral evidence was the same as his written evidence and it came to this: that FFT is a highly respected provider of medico legal reports and its evidence should simply be accepted.\u00a0 There should be no requirement for it to be tested in any other way.<\/li>\n
                                                  6. Some of the questions Professor Rodley was asked were outside his expertise:\u00a0 he was asked about the lack of evidence in the FFT composite report about methods of escape, which he stated was irrelevant to the assessment of the harm and the treatment, which was always FFT\u2019s focus; he was asked about the signing of confessions in the Sinhalese language, returnees from other countries, and exit methods.\u00a0 His answers on these points indicated that these areas were not within his knowledge.<\/li>\n
                                                  7. Ms Jo Pettitt is the researcher responsible for the work which underlies the two composite reports onSri Lanka, the UNCAT submission and the Briefing.\u00a0 FFT\u2019s country reporting programme is relatively new and is intended as a systematic analysis of patterns and evidence of torture in particular countries, with a view to holding states accountable.\u00a0 Contrary to Professor Rodley\u2019s concerns, where Ms Pettitt was using MLR data prepared by FFT, she had sought consent from the individuals concerned, but had received it from only half of those approached.\u00a0 There were also other less detailed pieces of evidence which she had considered.\u00a0 The statistical evidence is considered later in this determination and set out in the Appendix.<\/li>\n
                                                  8. Ms Pettitt had not met the individuals:\u00a0 she had worked from the paper files and medico legal reports.\u00a0 She had not analysed those who were not accepted by FFT as torture survivors; there was no indication as to the scale of any differential; and she had not looked beyond the medical elements of the reports.\u00a0 The numbers who fell within the period and profile which FFT wished to analyse were very small.\u00a0 The information was heavily redacted and she was not authorised or willing to go beyond that redaction.<\/strong><\/li>\n<\/ol>\n

                                                    Appendix F \u2013 HRW <\/strong><\/p>\n

                                                      \n
                                                    1. The HRW evidence was that of Mr Brad Adams, the organisation\u2019s Asia Director in New York, and Ms Charu Lata Hogg, a researcher at Chatham House who, although she was called by the third appellant, was so constrained by her contractual relationship with HRW that her evidence must properly be considered as the evidence of that organisation.\u00a0 The evidence of both witnesses concerned the preparation and publication of HRW\u2019s report:\u00a0 \u201cWe will teach you a lesson: sexual violence against Tamils by the Sri Lankan security forces\u201d[6]<\/sup><\/sup><\/a>.\u00a0 The report was published on 26 February 2013 and Ms Hogg was the researcher whose statistical work informed the report.<\/li>\n
                                                    2. Mr Adams was not available to give oral evidence and his application not to do so was supported by the parties; he lives inCalifornia, where it was night at the time when the Tribunal wished to hear his oral evidence.\u00a0 He provided two witness statements in March 2013, to which, absent his oral evidence, we can give only limited weight.\u00a0 Mr Adams\u2019 evidence was that HRW did not consider that every Tamil returned toSri Lankawas at risk.\u00a0 However, torture, rape and sexual abuse were common in detention inSri Lanka.<\/li>\n
                                                    3. The February 2013 report set out HRW\u2019s recommendations to the GOSL:\u00a0 to investigate and prosecute all rape and sexual violence allegations against the Sri Lankan security forces, before and after the civil war, ending the culture of impunity; to repeal the PTA and the system of detention without charge or trial; to lift the access restrictions to the Northern Province to allow medical personnel, counsellors, and NGOs providing psycho-social support and independent medical examination and treatment to reach victims of human rights violations; \u00a0to charge or release those held under emergency or anti-terrorism laws;\u00a0 to conduct prompt trials meeting international due process norms; to ensure that all ranks of the security services receive proper training on \u2018civilian protection\u2019; to disclose the whereabouts of detainees and rehabilitees, maintaining a computerised accessible database of the information and allowing family and medical visits; to institute a reparations programme; and to:<\/strong><\/li>\n<\/ol>\n

                                                      \u201cl.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Ratify the following international conventions: the Optional Protocol to the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the Rome Statute of the International Criminal Court; and the International Convention for the Protection of All Persons from Enforced Disappearance;<\/p>\n

                                                      m.\u00a0\u00a0\u00a0\u00a0 Invite and facilitate the visits of UN special procedures including the UN special rapporteur on torture, the UN Working Group on Arbitrary Detention, the UN Working Group on Enforced Disappearances, the UN special rapporteur on violence against women, and the UN special rapporteur on the independence of judges and lawyers.\u201d<\/strong><\/p>\n

                                                        \n
                                                      1. Dealing specifically with the charter flights and publicity, Mr Adams confirmed that HRW had released information in May and September 2012 close to the date of the charter flights in order to influence both the United Kingdompublic and government to prevent the intended returns.\u00a0 He denied that the same was true of the latest report, which he stated had been prepared for the UN meeting in March 2013.<\/strong><\/li>\n
                                                      2. He confirmed the contractual restrictions on Ms Hogg preventing her from disclosing voluntarily unpublished names or information without HRW\u2019s permission, which would be withheld if confidentiality issues were at stake.<\/li>\n
                                                      3. The evidence of Ms Charu Lata Hogg was heard over two days, the first before publication of the report, and the second after publication. She provided three reports, on 21 January and 28 January 2013, and on 12 March 2013. She set out the restrictions on her evidence in the first report:<\/strong><\/li>\n<\/ol>\n

                                                        \u201c2. The names, place of residence and as well as potentially incriminating details of the dates and locations of victims\u2019 detention and abuse have in the majority been withheld to address concerns about their vulnerability to possible reprisals by Sri Lankan security forces should information in this report enter the public domain. I have included information from sources I consider reliable based on my knowledge and experience onSri Lanka. I have provided as much detail on the sources as can be safely provided. Given the vulnerability of sources inSri Lanka, I would like to request the court to omit mentioning specific names and details on individual sources in the decision as this could potentially lead to the identification of these sources by Sri Lankan authorities and make them vulnerable to future ill-treatment.\u201d<\/p>\n

                                                          \n
                                                        1. We deal in detail with the statistical evidence provided by Ms Hogg in the Appendix, and it is assessed later in this determination.\u00a0 In more general observations, Ms Hogg noted the authoritarian nature of the current government inSri Lanka.\u00a0 Her report quoted Dr Pakiasothy Saravanamuttu of the Centre for Policy Alternatives, as follows:<\/li>\n<\/ol>\n

                                                          \u201c30.\u00a0 \u2026\u201cThe current government in Sri Lanka is strong but insecure because of a variety of factors which include on-going allegations of war crimes in its defeat of the LTTE; any development which could potentially challenge its main achievement, the defeat of the LTTE, and thereby contest its success; the fear of loss of protection should the leaders suddenly be stripped of official position and power; and finally the fact that the government is entrenching a dynastic project.\u201d<\/p>\n

                                                            \n
                                                          1. A three-member advisory panel appointed in 2010 by UN Secretary-General Ban had not been permitted to visitSri Lanka; its intended visit was widely perceived as the precursor to a war crimes trial.\u00a0 The LLRC was the GOSL\u2019s own investigation:\u00a0 HRW, Amnesty International and ICG had refused to give evidence before it, on legitimacy grounds. In April 2011, the UN panel had reported (without visitingSri Lanka) and had criticised the behaviour of the Sri Lankan government forces and the LTTE at the end of the civil war.<\/li>\n
                                                          2. There were significant restrictions on freedom of the press, with journalists self-censoring and also suffering physical attacks if they wrote or spoke against the r\u00e9gime. Those who aligned themselves with western perceptions were considered to be \u2018traitors\u2026betraying the motherland\u2019.\u00a0 The Sri Lankan judiciary was under pressure; a Parliamentary Select Committee had sought to impeach the Chief Justice; the Supreme Court had held that to be ultra vires; the Chief Justice was nevertheless removed from office.<\/li>\n
                                                          3. Corruption was widespread, and almost any service could be purchased for a price. Sri Lankawas 79th of 176 countries in Transparency International\u2019s Corruption Index. The government was a family business:<\/strong><\/li>\n<\/ol>\n

                                                            \u201c83. Nepotism and clientelism is rife inSri Lankaand political office has traditionally been used to perpetuate power and accumulate wealth. \u2026 Mahinda Rajapaksa\u2019s election as President in 2005 broke the stranglehold of power by a small, higher class clan of political elite. Since then, the government is dominated by the President\u2019s family with two of his brothers holding key executive branch posts as Defense Secretary and minister of economic development , while a third brother serves as the Speaker of Parliament. A large number of other relatives, including the president\u2019s son, also serve in important political or diplomatic positions. The culture of nepotism goes beyond the echelons of political power and is noticeable in the civil services, judiciary, police and other divisions of state administration.\u201d<\/p>\n

                                                              \n
                                                            1. The former paramilitary forces had no role in peacetime:\u00a0 various groups had staked out areas in Vavuniya where they were responsible for most of the killings, abductions, extortions and threats.\u00a0 \u201cWhite van\u201d abductions were occurring, mainly for ransom and extortion, but sometimes also for the purpose of passing individuals to the security services. The EPDP was working closely with the Sri Lankan security forces.<\/li>\n
                                                            2. The Sri Lankan government now proceeds on the basis of \u2018superior intelligence gathering abilities and mechanisms\u2019, a conscious change to its security strategy. Intelligence gathering since the civil war had been impressively effective, as some former high ranking LTTE members had cooperated with the authorities.\u00a0 The authorities had sophisticated intelligence about LTTE cadres and supporters, both domestically and abroad.\u00a0 In an interview with The Sunday Leader<\/em> in May 2012, the Defence Secretary said:<\/li>\n<\/ol>\n

                                                              \u201cThere is no need now for search and cordon operations or having many road blocks, checkpoints or rounding up people for questioning. That is no longer necessary. But there are other methods to keep vigilant. Especially on the intelligence side – we have increased military intelligence units. We are training them more and more in advanced methods so they can gather information on these affairs and have an early warning. Then we keep an eye on certain people that we know have been engaged in criminal activity. Certain people who have been rehabilitated and released \u2013 some have adjusted very well and integrated extremely well… some are working happily in various jobs, some are engaged in their own work. But there are a few people not terrorists but engaged in normal criminal activity. There is a possibility these people may get involved in terrorist activity again\u201d.<\/p>\n

                                                                \n
                                                              1. There had been no recent large-scale searches inColomboand there were far fewer checkpoints there now. Tamils still had difficulty in finding work and accommodation inColombo; for migrants, Tamil community support was required even in densely populated Tamil areas.\u00a0 The migrant Tamil population was in a different position from the integrated Tamils who had been there much longer and spoke Sinhalese. \u00a0\u00a0Her second supplementary report indicated that 24 of the victims had been picked up inColombo.\u00a0 In answer to questions from Mr Hall, Ms Hogg amplified that comment, stating that she had not analysed whether they had been detained before or after May 2009 in relation to detention by location.<\/li>\n
                                                              2. Torture in detention continued in a culture of impunity.\u00a0 Those who were detained included former conscripts and administrators for the LTTE. \u00a0Confessions were extracted for future use, although, as Ms Hogg acknowledged, as a matter of law confessions obtained under PTA detention could not be used in court and would have to be obtained again.<\/li>\n
                                                              3. Ms Hogg was unaware of any hard evidence of genuine LTTE activity inSri Lanka, nor any independent evidence of resurgence of the LTTE in the diaspora. Her interviews with experts led to the conclusion that:<\/li>\n<\/ol>\n

                                                                \u201c\u2026 while fund raising for the Tamil cause in the diaspora continues to remain active and there remains a residual nostalgia for the LTTE withinSri Lanka, chances of a revival of the LTTE remain dim\u201d.<\/p>\n

                                                                  \n
                                                                1. However, the GOSL remained concerned.\u00a0 Interest was high in those returning from theUnited Kingdom, particularly because of theUnited Kingdom\u2019s traditional role in fundraising for the LTTE. \u00a0Only theUnited Kingdomreturned Sri Lankan citizens by charter flight. Although there was some protection from harm at the airport, the Sri Lankan security forces would pick up anyone in whom they were interested from their home address.\u00a0 Those without an identity card might be at additional risk, since that would alert the authorities that they had not been screened and might not have undergone rehabilitation.<\/li>\n
                                                                2. The GOSL considered that Tamil Nadu, inIndia, andAustraliahad significant numbers of LTTE activists.\u00a0 LTTE activity was considered to exist also inFrance,Germany,Norway,Sweden,Belgium,Switzerland,South Africa,New ZealandandCanada.\u00a0 The GOSL was concerned about the current role of the worldwide diaspora, and was seeking:<\/li>\n<\/ol>\n

                                                                  \u201c\u2026to acquire intelligence on the activities of this politically active diaspora, particularly on its contribution to international moves towards an inquiry into alleged war crimes committed by the state in its 2009 defeat of the LTTE \u2026 to send a signal to the diaspora that any involvement in an international campaign against Sri Lanka would result in harsh consequences\u201d.<\/p>\n

                                                                    \n
                                                                  1. The GOSL was a paranoid organisation which needed to ensure that the LTTE remained a threat, to justify its militarisation amounting to occupation of the Northern Province.\u00a0 Ms Hogg set out a list of organisations which the GOSL regarded as LTTE fronts worldwide:<\/strong><\/li>\n<\/ol>\n