Landmark European ruling says Tamils risk torture if deported

In a rebuke of Britain’s efforts to deport Tamil asylum seekers, the European Court of Human Rights allowed Thursday the appeal by one refugee, finding that he was at risk of torture by the Sri Lankan authorities if returned there.

Immigration lawyers said the European Court’s ruling was ‘very significant’ as the forcible removal of hundreds of Tamils had been held up pending this judgment. The Court’s decision came as the British government praised the Sri Lankan government’s efforts on human rights.

The Court’s decision Thursday in the case ‘NA vs. United Kingdom’ is intended to give guidance to national and European decision makers in assessing asylum claims by Tamils fleeing persecution by the Sri Lankan state.

In short, it says that deporting NA to Sri Lanka would contravene Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”).

The judgement noted: “The Court has taken note of the current climate of general violence in Sri Lanka. …It also notes that those considered by the authorities to be of interest in their efforts to combat the LTTE are systematically exposed to torture and ill-treatment.”

In June 2007, NA appealed to the European Court of Human Rights, saying the UK’s deportations were contravening the European Convention for the Protection of Human Rights and Fundamental Freedoms.

In response to the appeal, the Court decided to apply Rule 39 of the Rules of Court (interim measures), insisting the UK government not to expel NA till his case was heard.

Thereafter, the Court received an increasing number of similar requests for interim measures from Tamils who were being forcibly returned to Sri Lanka from Britain and other European States.

This stoppage has since been granted in respect of 342 Tamil applicants in the United Kingdom. Immigration lawyers say that many other Tamils who were not able to appeal in time, had been forcible deported.

The UK protested against the interim measures in October 2007, saying the situation in Sri Lanka did not warrant the suspension of forcible removals and that it would not voluntarily assist the Court this way – the UK called for a lead judgment by the Court.

That judgment came Thursday.

The Court upheld NA’s appeal and also ordered the UK to pay NA in respect of costs and expenses incurred as a result of the case.

NA, a Sri Lankan Tamil had claimed asylum in August 1999 on the grounds he feared both the Sri Lankan government and the LTTE.

He had been arrested and detained by the Army six times between 1990 and 1997 on suspicion of involvement with the Tigers. Each time he was released without charge. Whilst in detention he had been ill-treated and his legs were scarred from being beaten. During the 1997 detention the applicant had been photographed and his fingerprints had been taken.

NA said he also feared the LTTE because his father had done some work for the Army. He said they had also tried to recruit him in 1997 and 1998.

NA claims were repeatedly rejected by the British Home Office and in April 2006, his deportation was ordered. The UK government argued the general situation in Sri Lanka did not indicate any personal risk of ill-treatment and there was no evidence that NA would be personally affected upon return.

The UK argued, the fact NA had been released each time he was arrested was an assurance he was safe. The Court held otherwise.

Meanwhile, British Foreign Minister Lord Malloch-Brown, who is visiting Sri Lanka, was quoted as telling President Mahinda Rajapaksa that Sri Lanka “had achieved something remarkable and impressive in establishing a process for the resolution of human rights issues.”

Sri Lankan Foreign Minister Bogollagama told his British counterpart that Colombo appreciated the UK's understanding of the complexity of the issues in question, a government statement said.