OGN v3.0 Issued 19 June 2006

OPERATIONAL GUIDANCE NOTE

Immigration and Nationality Directorate SRI LANKA Immigration and Nationality Directorate

CONTENTS 1. Introduction 1.1 – 1.5 2. Country assessment 2.1 – 2.11 3. Main categories of claims 3.1 – 3.5 Former members, supporters or opponents of the LTTE fearing reprisals from 3.6 LTTE Fear of persecution by the Sri Lankan authorities 3.7 Prison conditions 3.8 4. Discretionary Leave 4.1 – 4.2 Minors claiming in their own right 4.3 Medical treatment 4.4 5. Returns 5.1 – 5.3 6. List of source documents

1 Introduction

1.1 This document summarises the general, political and human rights situation in Sri Lanka and provides information on the nature and handling of claims frequently received from nationals/residents of that country. It must be read in conjunction with any COI Service Sri Lanka Country of Origin Information at:

www.homeoffice.gov.uk/rds/country_reports.html

1.2 This document is intended to provide clear guidance on whether the main types of claim are or are not likely to justify the granting of asylum, Humanitarian Protection or Discretionary Leave. Caseworkers should refer to the following Asylum Policy Instructions for further details of the policy on these areas:

API on Assessing the Claim API on Humanitarian Protection API on Discretionary Leave API on the European Convention on Human Rights

1.3 Claims should be considered on an individual basis, but taking full account of the information set out below, in particular Part 3: main categories of claims.

1.4 With effect from 23 July 2003, Sri Lanka is a country listed in section 94 of the Nationality Immigration and Asylum Act 2002. Asylum and human rights claims must be considered on their individual merits. However if, following consideration, the claim made on or after 23 July 2003 is refused, caseworkers should certify the claim as clearly unfounded unless satisfied that it is not. A claim will be clearly unfounded if it is so clearly without substance that it is bound to fail. The information set out below contains relevant country information, the most common types of claim and guidance from the courts, including guidance on whether cases are likely to be clearly unfounded.

1.5 A full list of source documents cited in footnotes is at the end of this note.

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2 Country assessment

2.1 Following independence from Britain in February 1948, the political scene has been dominated by two parties: the United National Party (UNP) and the Sri Lanka Freedom Party (SLFP), which is now part of the People’s Alliance (PA). The SLFP was founded by S W R D Banadaranaike, who was Prime Minister until he was assassinated in 1959 by a Buddhist extremist. His widow, Sirimavo Banadaranaike, became leader of the SLFP and served as both Prime Minister and leader of the opposition.1

2.2 A republican constitution was adopted in 1972 and the ruling coalition, led by Sirimavo Banadaranaike, gave itself an extra two years in power. The UNP returned to power in 1978 and adopted a new constitution based on an executive presidency. It introduced for the first time elections based on proportional representation. The presidential election in 1988 was won by the UNP's , who ruled until his assassination in 1993.2

2.3 The SLFP became part of the People’s Alliance (PA) coalition which, headed by Mrs (the daughter of S W R D and Sirimavo Bandaranaike), won general elections in August 1994. Mrs Kumaratunga then went on to win a landslide victory in the Presidential election in November 1994. The PA also won the next Parliamentary elections in October 2000. Although there were reports of violence, intimidation and voting irregularities, the EU Election Observation Mission acknowledged that the result overall reasonably reflected the opinion of the people. In 2001, less than a year after being re- elected, the PA lost their majority and new elections were held in December 2001. The United National Front coalition, lead by UNP Ranil Wickremasinghe, won with 109 seats and the President’s PA came second with 77 seats, which led to an arrangement of political cohabitation between two rival parties, with the PA’s leader as President and the UNP’s leader as Prime Minister.3

2.4 In November 2003, President Kumaratunga suspended parliament, sacked three key ministers taking over their portfolios (including defence) and declared a state of emergency (which was lifted a few days later). This was done on the grounds of national security, and the actions were within her Constitutional powers. No agreement on working arrangements was reached between the President and Prime Minister, and in January 2004, the SLFP signed an alliance with the JVP forming the United People’s Freedom Alliance (UPFA). In February, the President dissolved Parliament and called general elections in April.4

2.5 The elections in April 2004 produced a new political order with the victory of the UPFA. Support for the traditional parties dropped, and smaller parties - JVP, TNA and JHU - gained significant numbers of seats. The UPFA formed a minority government. In September 2004, the Ceylon Workers' Congress (CWC – representing Indian-origin Tamils) with 8 seats joined the government giving it a small majority. In June 2005 the JVP left the Government after the President’s decision to sign a post-tsunami funding arrangement with the LTTE.5

2.6 Presidential elections on 17 November 2005 resulted in the election of President Mahinda Rajapakse of the UPFA to a six year term. According to the preliminary report of the European Union Election Observation Mission (EUEOM), the election was generally conducted in a professional and impartial manner and was deemed an improvement over the 2004 election.6 The final report of the mission however noted a very different scenario in the North and East where the LTTE controlled or exercised influence, where there was little tangible evidence that an election had taken place; political campaigning was non- existent and voters were prevented from exercising their franchise because of an enforced

1 FCO Country Profile on Sri Lanka: 18 May 2006 2 FCO Country Profile on Sri Lanka: 18 May 2006 3 FCO Country Profile on Sri Lanka: 18 May 2006 4 FCO Country Profile on Sri Lanka: 18 May 2006 5 FCO Country Profile on Sri Lanka: 18 May 2006 6 USSD 2005 Introduction & COIS Sri Lanka Bulletin 1/2005 para 2.01 Page 2 of 20 Sri Lanka OGN v3.0 Issued 19 June 2006

boycott by the LTTE and its proxies.7 The Prime Minister of Sri Lanka is appointed by the President and on 21 November 2005 Ratnasiri Wickremanayake was sworn-in as Prime Minister.8

2.7 The ethnic conflict in Sri Lanka has been going on for over 20 years as the Liberation Tigers of Tamil Eelam (LTTE) fight for an independent homeland and during this 20 year period some 70,000 people are estimated to have been killed and some one million displaced.9 The number of killings in Sri Lanka in the two years preceding the ceasefire of 22 February 2002 was 5,973 in 2000 and 1,822 in 2001. Fifteen people were reported killed in 2002; 59 in 2003; 108 in 2004, 330 in 2005 and 652 in 2006 up to 11 June 2006.10 In a statement dated 2 June 2006 the Sri Lanka Monitoring Mission (SLMM) reported that the recent escalation in violence had resulted in the deaths of over 500 people in the current year (2006) over half of whom are civilians. The SLMM notes that while it was set up to monitor the ceasefire it does not have the mandate or resources to enforce security as most of the killings this year have gone unpunished and the perpetrators remain at large, the SLMM is unable to rule on most of these individual cases due to lack of evidence, therefore the numbers of ruled violations in recent times does not reflect the real level of committed violations.11 In March 1999 the Sri Lankan Army launched two major offensives in the Vanni (jungle areas in the North) and captured over 800 sq kms of territory from the LTTE. Fighting in the North intensified in late 1999 and the Vanni fell to the LTTE after some of the fiercest fighting since the conflict began. In April 2000 the LTTE carried out a major assault which led to the withdrawal of Sri Lankan troops from Elephant Pass (which links the peninsula to the rest of Sri Lanka). With control of Elephant Pass, the LTTE continued further attacks into the Jaffna Peninsula. Fighting continued until December 2001 when the announcement of a new ceasefire by the LTTE was reciprocated by the newly-elected UNF government. A Ceasefire Agreement was signed in February 2002 by the government and LTTE.12 On 21 April 2003 the LTTE suspended participation in the peace talks in protest at the handling of "critical issues", but said that they had no intention of breaking the cease-fire.13 Since then there has been no large-scale fighting on land, although there have been at least 14 two clashes between the Navy and the LTTE’s .

2.8 During the April 2004 election campaign, the LTTE stated their willingness to negotiate with any party which had a mandate for talks. The government, for their part, have said that restarting the peace talks is a priority for them and renewed the mandate of Norway as peace facilitators. Despite energetic shuttle diplomacy there has been no agreement on a resumption of talks and little progress made in the second half of 2004. Although it was initially hoped that the tsunami would present an opportunity for the two sides to return to the negotiating table, both the Government and the LTTE have put the peace process to 15 one side while they deal with post-tsunami reconstruction.

2.9 There has been an intensification of violence since the beginning of December 2005. After the initial period of violence in December 2005 and January 2006 the two sides agreed to direct talks in Geneva on 22 to 23 February 2006. The talks resulted in commitments by both sides to uphold the Ceasefire Agreement, and to ensure acts of intimidation and or violence cease. The LTTE committed itself to end attacks on the Government’s security forces and the Government of Sri Lanka committed to prevent armed groups from operating. Both parties asked the Swiss to host a further round of talks in April 2006. 16 However this did not happen as large-scale violence resumed in April.

7 EU Election Observation Mission Press Release 10 March 2006 8 COIS Sri Lanka Bulletin 1/2005 para 2.04 9 FCO Country Profile on Sri Lanka; 18 May 2006 10 Institute for Conflict Management: “Fatalities District Wise 2005 and 2006” & “Casualties of Terrorist Violence in Sri Lanka” 11 Sri Lanka Monitoring Mission: Violations of the Ceasefire Agreement 2 June 2006 12 FCO Country Profile on Sri Lanka; 18 May 2006 13 COIS Sri Lanka COI Report Sept 2005 para 4.104 14 FCO Country Profile on Sri Lanka: 18 May 2006 15 FCO Country Profile on Sri Lanka: 18 May 2006 16 FCO Country Profile on Sri Lanka: 18 May 2006 Page 3 of 20 Sri Lanka OGN v3.0 Issued 19 June 2006

2.10 Figures recorded by the Sri Lanka Monitoring Mission (SLMM) based on complaints reported to them covering the period 1 February 2002 to 28 February 2006 indicate that there have been just under 1,700 abductions of adults and children of which just over 800 have been ruled as violations by the SLMM. In the same period SLMM figures show 161 complaints of assassination against the LTTE and 21 against the government. (See section 2.7 with regard to the most recent statement from SLMM on cases ruled by them as violations.)17 During 2005 an increase in politically motivated killings by the LTTE was noted as was an increase in the numbers of armed clashes between the LTTE and the armed forces and between the LTTE and the Karuna group. The SLMM recorded 92 assassinations imputed to the LTTE during 2005 (12 ruled as violations and 1 as no violation)18. Separate figures produced by the South Asia Terrorism portal based on information from various media reports indicate a total of 330 fatalities in 2005 and 586 in 2006 up to 3 June 2006 of which 230 are recorded as being civilians, 153 members of the security forces and 203 terrorists. The vast majority of the fatalities are recorded as taking place in the north or east of the country with 18 being recorded as taking place in the district of .19 Further figures from the British High Commission in Colombo record a total of 98 security force personnel, and 35 LTTE members killed from December 2005 to March 2006.20 In January 2006 Human Rights Watch estimated 200 Tamils had died, for apparently political reasons, since the beginning of a ceasefire between the government and the Tamil Tigers in February 2002. Most of the killings have been attributed to the Tamil Tigers.21

2.11 On 18 August 2005, following the killing of Foreign Minister Lakshman Kadigarmar, the government enacted emergency regulations. These permit arrests without warrant, and non-accountable detentions for up to one year without trial, and grant the power of arrest to members of the armed forces who are required to turn suspects over to the police within 24 hours. Extending the state of emergency on 21 March 2006 Prime Minister Wickremanayake told parliament that in the previous month the number of killings and attempted killings had reduced but the state of emergency needed to be extended to continue this trend.22

2.12 As noted above there has been an intensification of violence since December 200523 and some of the more notable recent events are noted in this paragraph. In mid-April 2006 an increase in violence in the port town of in north-eastern Sri Lanka was reported with attacks against security forces and rising tensions between Tamil and Sinhalese communities. The LTTE refused to take part in peace talks due later in the month saying their decision came after a recent escalation in violence in Tamil-majority areas.24 Later in April 2006 a suicide bomb attack on the Sri Lankan army headquarters killed at least eight people and seriously injured the head of the army Lt Gen Sarath Fonseca.25 Following the bomb attack Sri Lankan military forces carried out air strikes on suspected Tamil Tiger rebel bases. The strikes were the first official military action since the 2002 ceasefire.26 On 28 April 2006 UNHCR reported that the situation seemed to have stabilised following fighting earlier in the week but UNHCR remained concerned about the displacement of thousands of people in the Trincomalee district.27 However in early May at least five people were killed in a mine attack in Trincomalee apparently aimed by the Tamil Tiger rebels at a Navy

17 Sri Lanka Monitoring Mission: Summary of recorded complaints and violations. 18 COIS Sri Lanka Bulletin 1/2006 para 2.09-2.11 19 Institute for Conflict Management: “Fatalities District Wise 2005 and 2006” 20 COIS Sri Lanka Bulletin 1/2006 para 2.12 21 Human Rights Watch Report: January 2006 22 COIS Sri Lanka Bulletin 1/2006 para 6.01-6.02 23 FCO Country Profile: 18 May 2006 24 BBC News Violence hits Sri Lanka port town 25 BBC News Bomb targets chief 26 BBC News Fresh strikes on Sri Lanka rebels 27 UNHCR Briefing Notes-Despite apparent stabilisation, UNHCR remains concerned for thousands of employees Page 4 of 20 Sri Lanka OGN v3.0 Issued 19 June 2006

patrol.28 On 11 May 2006 Reuters reported Sri Lankan airforce planes dropped bombs on LTTE territory near their northern stronghold of Kilinochchi. The raid was launched after the LTTE sea arm attacked a troop transporter ship carrying hundreds of servicemen and sank two Navy fast attack boats. The attack was reported to be the most serious military confrontation since the 2002 truce.29 Violence on the navy controlled island of Kayts near the northern town of Jaffna resulted in the death of 13 civilians in mid May 2006. Ceasefire monitors were investigating the killings which the Tamil Tigers blamed on the Government and the Government blamed on the Tigers.30 Later in May the BBC reported the death of a senior figure in the LTTE named as Ramanan a commander in the district of , it is unclear who was responsible for this killing. It was also reported that there had been continuing attacks on humanitarian workers in the north and east.31 On 23 May 2006 Louise Arbour UN High Commissioner for Human Rights expressed concern over mounting violence in Sri Lanka including the killing of civilians and threats against staff of humanitarian agencies which she said were not only ceasefire violations but serious breaches of international human rights and humanitarian law.32 In late May 2005 the European Union listed the LTTE as a banned terrorist organisation. It was reported that more than 280 soldiers, civilians and rebels have been killed in the attacks including suicide bombings and naval clashes which have taken place since February.33

2.13 The Sri Lankan government have taken steps to improve its very poor human rights record of the 1980’s and 1990’s. Significant improvements have been made, but problems do remain. There are continued reports of rape and torture in custody, although these have fallen since the ceasefire. The LTTE are responsible for continuing serious human rights abuses including assassinations of political opponents, recruitment of child soldiers, abductions and extortion. There have been incidents of attacks on religious minorities. Sri Lanka is a signatory to all six core human rights instruments.34

2.14 Child recruitment by the LTTE continued to be a problem and it was reported that 543 children were forcibly recruited by the LTTE in 2005, however it also released 202 children of which 96 were again recruited. However credible sources also indicated that the number could be higher than 543 and that at the end of 2005 more that 1,339 children remained in LTTE custody. It was reported that children were used in battlefield support and in combat. UNICEF figures documented 139 cases of child recruitment in July 2005 the highest monthly figure since late 2003. However the figure for December 2005 was 27, January 2006 42, February 2006 31 and March 2006 32.35

2.15 Sri Lanka was severely affected by the tsunami on 26 December 2004 which killed some 40,000 people and displaced 400 – 500 thousand people along two thirds of the north-east, south and south-west coastline. Half the fishing fleet was destroyed, and a quarter of hotels in the affected areas sustained serious damage. 36

2.16 Presidential elections took place on 17 November 2005. The campaign was generally peaceful but there was violence in the north and east and the LTTE enforced a boycott of the polls in Tamil areas under their control or which they strongly influence in the north and east. This resulted in extremely low voter participation in these areas. Mahinda Rajapakse (SLFP) was elected President with 50.3% of the vote. UNP candidate and Leader of the Opposition, Ranil Wickremesinghe took 48.4%. The President appointed a new ministerial team on 23 November. The JVP and JHU which supported Rajapakse’s candidature 37 decided not to join the Government. The SLFP will therefore be a minority administration.

28 BBC News Sri Lankan explosion kills five. 29 Reuters Foundation AlertNet S Lanka air force bombs area near rebel stronghold 30 BBC News Probe into “slaugher” of Tamils 31 BBC News Senior rebel killed in Sri Lanka 32 Reuters Foundation AlertNet UN official decries Sri Lanka civilian killings 33 Reuters Foundation AlertNet Sri Lanka hopes EU ban will push rebels to talks 34 FCO Country Profile on Sri Lanka: 18 May 2006 35 COIS Sri Lanka Bulletin 1/2006 para 8.01-8.07 36 FCO Country Profile on Sri Lanka: 18 May 2006 37 FCO Country Profile on Sri Lanka: 18 May 2006 Page 5 of 20 Sri Lanka OGN v3.0 Issued 19 June 2006

3 Main categories of claims

3.1 This Section sets out the main types of asylum claim, human rights claim and Humanitarian Protection claim (whether explicit or implied) made by those entitled to reside in Sri Lanka . It also contains any common claims that may raise issues covered by the API on Discretionary Leave. Where appropriate it provides guidance on whether or not an individual making a claim is likely to face a real risk of persecution, unlawful killing or torture or inhuman or degrading treatment/ punishment. It also provides guidance on whether or not sufficiency of protection is available in cases where the threat comes from a non-state actor, and whether or not internal relocation is an option. The law and policies on persecution, Humanitarian Protection, Discretionary Leave, sufficiency of protection and internal relocation are set out in the relevant API's, but how these affect particular categories of claim are set out in the instructions below.

3.2 Each claim should be assessed to determine whether there are reasonable grounds for believing that the claimant would, if returned, face persecution for a Convention reason - i.e. due to their race, religion, nationality, membership of a particular social group or political opinion. The approach set out in Karanakaran should be followed when deciding how much weight to be given to the material provided in support of the claim (see the API on Assessing the Claim).

3.3 If the claimant does not qualify for asylum, consideration should be given as to whether a grant of Humanitarian Protection is appropriate. If the claimant qualifies for neither asylum nor Humanitarian Protection, consideration should be given as to whether he/she qualifies for Discretionary Leave, either on the basis of the particular categories detailed in Section 4 or on their individual circumstances.

3.4 This guidance is not designed to cover issues of credibility. Caseworkers will need to consider credibility issues based on all the information available to them. (For guidance on credibility see para 11 of the API on Assessing the Claim)

All APIs can be accessed via the IND website at:

http://www.ind.homeoffice.gov.uk/ind/en/home/laws___policy/policy_instructions/apis.html

3. 6. Former members, supporters or opponents of the LTTE fearing reprisals from LTTE.

3.6.1 Many claimants will claim asylum based on ill treatment amounting to persecution at the hands of the LTTE due to their past involvement with, and/or opposition to the mainstream LTTE. Some - particularly those who have aligned themselves with the Sri Lankan army military intelligence units – state that they are targeted by the LTTE because they are perceived as “defectors”, whilst others fear being targeted because of their association with the breakaway “Karuna” faction of the LTTE or because of their association with or links to the Eelam People’s Democratic Party (EPDP). Others express a fear of being attacked by the LTTE in Colombo because they have engaged in - or are perceived by the LTTE to have engaged in - activity which is seen as ‘disloyal’ to the LTTE.

3.6.2 Treatment. An announcement was made on 22 February 2002 that the Sri Lankan Government and the Liberation Tigers of Tamil Eelam (LTTE) had signed an agreement on the cessation of hostilities. The agreement committed the parties to put an end to hostilities and to restore normalcy for all Sri Lankans. The February 2002 agreement between the Sri Lankan government and the LTTE required both parties to abstain from hostile acts against the civilian population, including such acts as torture, intimidation, abduction, extortion and harassment. The parties also agreed that search operations and arrests under the Prevention of Terrorism Act (PTA) should not be made. The LTTE opened political offices in government-held areas (under the terms of the cease-fire agreement LTTE members are able to engage in political activity in areas outside their control provided they are unarmed and out of military-style uniforms). On 21 April 2003 the LTTE suspended participation in the

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peace talks in protest at the handling of "critical issues", but said that they had no intention of breaking the cease-fire.38

3.6.3 In March 2004 the LTTE’s eastern commander, Vinayagamoorthi Muralitharan - known as Colonel Karuna – broke away from the mainstream LTTE taking with him some 6,000 troops. In April 2004 thousands of LTTE troops moved into the east to engage Colonel Karuna and his supporters in battle. After fierce fighting and substantial casualties, the main faction of the LTTE defeated the breakaway group and regained full control of eastern areas.39

3.6.4 During 2004 Karuna’s group are alleged to have subsequently killed 26 LTTE members, including S. Senathirajah, the LTTE political leader for Batticaloa. Karuna’s group are also alleged to have killed 7 civilians, including LTTE supporter, journalist Aiyathurai Nadesan, who was killed in Batticaloa on 31 May 2004. There were reports that the Government provided protection and military aid to Karuna and his group to assist them in their fight against the mainstream LTTE.40

3.6.5 During 2005 Karuna’s group are alleged to have killed 27 LTTE members including the LTTE political leaders for Batticaloa and Trincomalee. Karuna’s group are also believed to have killed 20 civilians including the divisional secretary of Thirukkovil and a newspaper distributor. There continued to be reports that the government provided protection and military aid to Karuna and his associates in their fight against the LTTE but the government denied any association to Karuna or his associates.41 Incidents continued during 2006 with reports of the deaths of 50 LTTE members at the hand of the Karuna group up until 26 May 2006. The same 42 report shows 26 fatalities of Karuna faction members during this period.

3.6.6 During the April 2004 election campaign, the LTTE stated their willingness to negotiate with any party which had a mandate for talks. The government, for their part, have said that restarting the peace talks is a priority for them and renewed the mandate of Norway as peace facilitators. Although it was initially hoped that the tsunami would present an opportunity for the two sides to return to the negotiating table, both the Government and the LTTE put the peace process to one side while they deal with post-tsunami reconstruction. A 'no peace, no war' scenario continues to prevail. The ceasefire agreement remains in place but is under pressure due to ongoing violence in the East, including political assassinations and paramilitary activity (including by the Karuna LTTE breakaway group).43 The first session of Ceasefire Talks was finally held in Switzerland on 22 and 23 February 2006, however despite a reaffirmation from both sides on respecting and upholding the Ceasefire Agreement, and commitments from both sides to eradicate violent acts and hold further 44 45 talks in April , these did not in fact take place.

3.6.7 Members of the LTTE have committed serious human rights abuses, involving both Tamils and Sinhalese and have been responsible for politically motivated killings, arbitrary arrests, torture, harassment, abduction, disappearances, extortion, and detention.46 The number of killings in Sri Lanka in the two years preceding the ceasefire of 22 February 2002 was 5,973 in 2000 and 1,822 in 2001. Fifteen people were reported killed in 2002; 59 in 2003; 108 in 2004, 330 in 2005 and 652 in 2006 up to 11 June 2006.47 Most incidents having taken place

38 COIS Sri Lanka COI Report Sept 2005 para 4.82-4.83 & 4.104 39 COIS Sri Lanka COI Report Sept 2005 para 4.45 - 4.58 40 COIS Sri Lanka COI Report Sept 2005 para 6.132 41 COIS Sri Lanka Bulletin 1/2006 para 2.05 42 Institute for Conflict Management: “Incidents of violence between LTTE and Tamil National Front” 43 FCO Country Profile on Sri Lanka: 18 May 2006 44 COIS Sri Lanka Bulletin 1/2006 para 7.01 45 BBC News Tamil Tigers dismiss early talks 46 COIS Sri Lanka COI Report Sept 2005 para 6.03 47 Institute for Conflict Management: “Casualties of Terrorist Violence in Sri Lanka” Page 7 of 20 Sri Lanka OGN v3.0 Issued 19 June 2006

in the in the north and east of Sri Lanka.48 From February 2002 up to February 2006, there had been 1,225 abductions of adults and 321 abductions of children reported to the Sri Lanka Monitoring Mission (SLMM) attributed to the LTTE. Of these 595 for adults and 212 for children have been certified by the Norwegian-led Sri Lanka Monitoring Mission (SLMM) as violations of the ceasefire agreement by the LTTE.49

3.6.8 During 2004, there was credible evidence that, in addition to the 120 cadres and civilians killed in fighting between LTTE factions in March, the LTTE killed more than 81 members of anti- LTTE Tamil political groups, LTTE cadres loyal to Karuna, alleged Tamil informants for the security forces in the north, the east, and Colombo, and civilians. Both current and former members of anti-LTTE Tamil political parties were targeted by the LTTE. During the year, 10 current and past anti-LTTE Eelam People’s Democratic Party (EPDP) members were killed. Credible sources indicated that after the fighting in March, the LTTE killed an additional 43 members of breakaway military leader Karuna’s group. The LTTE also targeted alleged Tamil informants to the military, killing 10 during the year.50

3.6.9 During 2005 there were credible reports that the LTTE killed 68 members of the police and military, more than 106 members of the anti-LTTE Tamil paramilitary groups, LTTE cadres loyal to the Karuna faction, alleged Tamil informants for the security forces, and civilians. The LTTE targeted both current and former members of the anti-LTTE Tamil political parties. During 2005 18 current and past anti-LTTE Eelam People’s Democratic Party (EPDP) members were killed. Credible sources reported that the LTTE killed 45 members of the breakaway military leader Karuna’s group. There was also credible evidence that the LTTE killed 15 members of the military intelligence apparatus in a targeted campaign.51

3.6.10 Both Amnesty International(AI) and Human Rights Watch(HRW) have highlighted the increase in politically motivated killings during 2005 and the worsening human rights situation in 2005 taking into account these killings. They note that Tamils in opposition to the LTTE are particular targets reportedly of the LTTE but the Karuna group in particular and other Tamil armed groups are also believed to be responsible for some of these. AI particularly note the that although the LTTE reportedly continued to kill those it viewed as opponents since the signing of the ceasefire agreement the scale and scope of these killings has risen dramatically since the April 2004 split in the LTTE. AI further report that the range of people being targeted appears to be expanding; following the split most of those killed had clear links to either the LTTE or the Karuna faction but increasingly those killed are civilians with little or no evident connection to armed activity including journalists, academics, teachers and farmers as well as former members of the Tamil armed groups who have not been involved in armed activities for a long time. AI also report that the area in which the killings are taking place has expanded 52 from Batticaloa to Ampara, Trincomalee in the east and Jaffna and other areas in the north.

3.6.11 The Eelam People’s Democratic Party (EPDP) is a Tamil political group formed on 1986, which has fought against the LTTE since 1990. It supports the People’s Alliance and won one seat at the April 2004 elections for the National Assembly.53 As members of a rival Tamil party which refuses to accept the LTTE as the sole representative of the Tamil people members of the EPDP have been targeted by the LTTE. Killings of EPDP members in 2004 attributed to the LTTE included a journalist member in charge of media affairs, a committee member and a member. 54 The US State Department reports indicate a total of 10 current and past EPDP members were killed in 2004 and 18 in 2005. It is also indicated that there are reports that

48 Institute for Conflict Management: “Fatalities District Wise 2005 and 2006” & “Prominent Tamil political leaders assassinated since the Ceasefire Agreement” & “Incidents of violence between the LTTE and Tamil National Front” 49 Sri Lanka Monitoring Mission Summary of recorded complaints and violations 50 COIS Sri Lanka COI Report Sept 2005 para 6.131 51 COIS Sri Lanka Bulletin 1/2006 para 2.04 52 COIS Sri Lanka Bulletin 1/2006 para 2.07,2.08 and 2.10 53 COIS Sri Lanka COI Report Sept 2005 Annex B 54 COIS Sri Lanka COI Report Sept 2005 para 6.18, 6.130 and 6.143 Page 8 of 20 Sri Lanka OGN v3.0 Issued 19 June 2006

armed paramilitary groups including the EPDP which are suspected of being linked to the 55 government or security forces participated in armed attacks during 2005.

3.6.12 The EPDP itself records some 57 attacks against its members from 1 November 2002 to 24 April 2006, fifteen of which took place in 2005. The majority of these incidents are recorded as taking place on the east coast or in the far north for example in Batticaloa, Trincomalee and Jaffna. The EPDP describes many of the victims as political activists, organisers or otherwise having some profile within the organisation. Only four of the attacks are recorded as having 56 taken place in or near Colombo.

3.6.13 Sufficiency of protection. The Ministry of Internal Security controls the 66,000-member police force, which is responsible for internal security in most areas of the country. The Ministry of Defence controls the 112,000-member Army, the 27,000-member Navy, and the 20,000-member Air Force. Home Guards, an armed militia of more than 20,000 members drawn from local communities and who are responsible to the police, provide security for Muslim and Sinhalese communities located near LTTE-controlled areas. The police force includes the 6,000-member paramilitary which is the para military arm of the , and deployed essentially for counter Terrorist and Counter Insurgency operations within the country. They are also deployed in the close protection Units providing security for VIP’s and at Key Installations.57

3.6.14 In June 2003 there were reports of some large-scale arrests in Colombo City and Western Province during joint police/military operations against the LTTE in response to a spate of killings and other crimes, including the slaying of intelligence operatives. This was part of an initiative by the Ministry of Defence and the Interior Ministry to launch a comprehensive security operation with the deployment of military and intelligence services to render the city safe from criminals and hit squads. Most of those detained were released after a maximum of several days, but some detentions extended to several months and 65 persons were charged under the Prevention of Terrorism Act.58

3.6.15 In late 2005 the Sri Lankan authorities launched a number of “cordon and search” operations. The largest of these in Colombo on 31 December 2005 involved the arrest of about 1,000 people most of whom were detained briefly and released after finger printing and photographing. When asked by the Human Rights Commission (HRC) to explain these arrests the police indicated they were aimed at ordinary criminals. However the HRC noted that the ethnic balance of the suspects, mostly Tamil, indicated that this was a security operation. The HRC also noted that if the arrests were part of a security operation then the police had to inform the HRC within 48 hours even if the suspect had been released in the interim.59

3.6.16 As noted above violent attacks by the LTTE on its opponents and former members continue to take place which the Sri Lankan authorities have been unable to stop. There is no evidence that the Sri Lankan authorities do not investigate and seek to prosecute those who commit violent acts within Sri Lanka and they have responded to the recent increase in such political killings attributed to the LTTE as noted above. It can therefore be considered that there is a sufficiency of protection for those individuals who oppose the LTTE but whose level of opposition has not brought them to the specific attention of the LTTE. However it is clear that the LTTE are able to seek out and take action against some particular individuals generally of higher profile than ordinary members and for people in this category there will not be a sufficiency of protection.

3.6.17 Internal relocation. The Sri Lankan Constitution grants every citizen “freedom of movement and of choosing his residence” and the Government generally respected these rights in practice. The war with the LTTE prompted the Government to impose more stringent checks on travellers from the north and the east and on movement in Colombo,

55 USSD 2004 and 2005 56 EPDP news-heroes report 57 COIS Sri Lanka COI Report Sept 2005 para 5.26-5.27 58 COIS Sri Lanka COI Report Sept 2005 para 6.96 – 6.97 59 COIS Sri Lanka bulletin 1/2006 para 6.06 Page 9 of 20 Sri Lanka OGN v3.0 Issued 19 June 2006

particularly after dark. However since 2003, Tamils were no longer required to obtain police- passes to move around the country. Limited access continued to certain areas near military bases and High Security Zones, defined as areas near military emplacements, camps, barracks, or checkpoints where civilians could not enter. Some observers claimed the High Security Zones were excessive and unfairly affected Tamil agricultural lands, particularly in Jaffna. The LTTE limited travel on the road connecting Jaffna to the rest of the country.60 Following fighting in the north and east in April 2006 a number of access roads were closed however by 9 May 2006 it was reported that these had been re-opened.61

3.6.18 Claimants who fear persecution at the hands of the LTTE in LTTE dominated areas are able to relocate to Colombo, or other Government controlled areas and it would not normally be found to be unduly harsh for claimants to relocate in this way.

3.6.19 Caselaw.

[2002] UKIAT 04427 The IAT held that whilst the claimant had a real risk of persecution at the hands of the LTTE in his home area against which the Sri Lankan authorities could not protect him, it was not unduly harsh for him to relocate to Colombo.

[2003] UKIAT 00150 SN (Sri Lanka) CG (Scarring - Bribes - LTTE - Reprisals) The Appellant feared the LTTE and the Sri Lankan authorities. He claimed that he was forced to give information to the Sri Lankan authorities and as a result of this the LTTE came looking for him. The Tribunal found that it was unlikely that the LTTE would look for him on his return as if that were the case "it would impact on the circumstances of probably thousands of young Tamil men who had been forced by the authorities to identify LTTE members in the past in similar circumstances." The Appellant would be returned to Colombo where there was a sufficiency of protection.

Oppilamani [2004] EWCH 348 (Admin). The claimant feared reprisals from the LTTE because she joined and worked for the EPDP for a year and a half and because of her husband’s defection from the LTTE. The claimant assisted in promoting the EPDP by organising meetings, recruiting members and making pro-EPDP speeches. She was not considered to be a high-profile political opponent. Also it was concluded that, on the facts of the case, there was a sufficiency of protection.

Mylvaganam [2005] EWHC 98 (Admin). The claimant was found not to be a true high profile opposition activist to the LTTE. The claimant was a member of the SLFP and chief organiser in the Batticaloa district, a member of a human rights task force in 1998 and appointed as a member of Batticaloa General Hospital Committee in 1999. He contested elections in Batticaloa in 2000 on behalf of the SLFP. This case is fact specific but it demonstrates what the courts take into account when considering whether an individual has a high political profile.

PS [2004] CG 00297 The Tribunal:

restated that Tamils from the north and east of Sri Lanka, under the direct control of the LTTE, and from those areas where the degree of control has fluctuated, can in general terms safely relocate to Colombo to avoid localised fear of the LTTE. Travel restrictions have been greatly and progressively eased since the ceasefire, with a reduction in the numbers of checkpoints.

accepted that it is physically possible for LTTE members to travel to Colombo although, in times when they have provoked public concern by their actions there, they would face heightened security measures, albeit not on the scale of the former cordon and search operations regularly carried out prior to the ceasefire. Nevertheless, it is clear that they do not choose to do so on an indiscriminate basis in order to find all those against whom they may harbour some suspicion.

concluded that “As we have already observed, those who the LTTE has on the objective evidence targeted in Colombo since the ceasefire have all been high profile opposition activists, or those whom they would see are renegades or traitors to the LTTE” (p71) and for those who are not high profile “there is no arguable basis for saying that the Sri Lankan state does not provide a sufficiency of protection to the generality of Tamils having a localised fear of the LTTE in their home area” (p72).

60 COIS Sri Lanka COI Report Sept 2005 para 6.68 61 UNHCR Briefing Notes-Despite apparent stabilisation, UNHCR remains concerned for thousands of employees Page 10 of 20 Sri Lanka OGN v3.0 Issued 19 June 2006

Sinnarasa [2005] EWHC 1126 (Admin). Although the High Court found that it was not necessarily just high profile individuals who may be targeted in Colombo, the detailed findings of the judgment nonetheless establish a challenging threshold for Karuna type cases. The high profile of the claimant’s associates and the court’s finding that she came “very close indeed to the borderline” of what could be rightly regarded as a clearly unfounded claim means that few claimants will establish that their association to the Karuna faction gives rise to a fear that is not clearly unfounded. The features of the claimant’s account that took her just over the borderline were as follows:

(i) she was an intelligence operative; (ii) she had associated herself with Colonel Karuna for a significant period of time, and that association could lead the majority LTTE to identify her as a close associate of Colonel Karuna and not simply someone caught up in the schism; (iii) she fled with a Brigade Commander or similarly high ranking official, who was undoubtedly high profile within the LTTE; (iv) there was evidence that she was being sought by the LTTE; (v) there was evidence that there was an increasingly insistent demand that she report to the LTTE for an interview (vi) there was an expert report

Nadanasikamani [2006]EWCA Civ 173. The court found that nothing in Sinnarasa unseated the reasoning in PS.

Yogachandran[2006]EWHC 392(Admin). The court found that nothing in any of the subsequent materials brought to the attention of the court throws the slightest doubt on the continuing validity of the factual analysis so carefully undertaken in PS.

Martin[2006]EWHC 799 (Admin). The court found that whilst the situation in Colombo had deteriorated since the Tribunal decided PS even taking into account Dr Smith’s report at its highest in favour of this claimant it does not in this type of case or in this particular case invalidate the essential thrust of the reasoning on the Tribunal in PS. On the Dr Smith report the court noted that even in a certification case and even in the case of an expert of the obvious expertise and integrity of Dr Smith the Sec of State is not compelled to accept every pronouncement by an expert. The more general, unsourced and unparticularised the report, the easier it may be for the Sec of State to say that a case is clearly unfounded; the more detailed, sourced and particularised the report, the more significant the report will be.

3.6.20 Conclusion. In addition to carefully establishing the claimants previous involvement with, and/or level of opposition to the mainstream LTTE, caseworkers also must take care to distinguish between claimants expressing fear of LTTE persecution on the grounds that (a) the claimant is regarded by the LTTE as a ‘defector’, ‘traitor’ or ‘renegade’; (b) those who are political opponents of the LTTE including EPDP membership or affiliation; and (c) those closely associated with the internal LTTE schism as supporters of Colonel Karuna. Caseworkers should note that members of the LTTE and the EPDP have been responsible for serious human rights abuses, some of which amount to war crimes and crimes against humanity. If it is accepted that a claimant was an active operational member or combatant for the LTTE or EPDP and the evidence suggests he/she has been involved in such actions, then caseworkers should consider whether one of the Exclusion clauses is applicable. Caseworkers should refer such cases to a Senior Caseworker in the first instance.

3.6.21 Low level supporters or members of a Tamil, including the EPDP, or non-Tamil, political party opposed to the LTTE who have never had a previous association with the LTTE are unlikely to be the target of reprisals by the LTTE. Those whom the LTTE has on the objective evidence targeted in Colombo since the ceasefire have all been high profile opposition activists. In the event that the claimant did consider themselves at risk, the Sri Lankan Government are both willing and able to provide a sufficiency of protection. Most applications under this category therefore are likely to be clearly unfounded and as such fall to be certified, however applicants who additionally have past links to the LTTE may attract additional attention from the LTTE and are unlikely to be clearly unfounded.

3.6.22 Prominent past supporters or members of Tamil political parties including the EPDP who have aligned themselves with the government against the LTTE and who have consciously and publicly opposed the LTTE are likely to attract the adverse interest from the LTTE in

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Colombo. In such circumstances the Sri Lankan Government are both willing and generally able to provide sufficient protection. Whilst claims in this category are likely to be refused, it is unlikely that the claims will fall to be certified as clearly unfounded. However, where an individual claimant is able to demonstrate that they are of such high political profile that they would be unable to obtain sufficient protection or move to another location within Sri Lanka, they should be granted asylum.

3.6.23 Former low level members or supporters of the LTTE who have now aligned themselves with the government against the LTTE, (or who are perceived by the LTTE to be opponents, whether or not they actually are) are unlikely to be the target of reprisals by the LTTE. There is no evidence that the LTTE pursue people who refuse to carry out low level ancillary activities (such as cooks, book keepers etc) for the mainstream LTTE. Those whom the LTTE has on the objective evidence targeted in Colombo since the ceasefire have all been high profile opposition activists. In the event that the claimant did consider themselves at risk, the Sri Lankan Government are both willing and able to provide a sufficiency of protection. Applications under this category therefore are likely to be clearly unfounded and as such fall to be certified.

3.6.24 In cases involving LTTE ‘defectors’, ‘traitors’ or ‘renegades’ , caseworkers need to carefully establish which of these terms applies to the claimant. ‘Defectors’ who have assisted the Sri Lankan authorities at a strategic level (for example those who have aligned themselves with the Sri Lankan army military intelligence units) are at risk of being targeted by the LTTE in Colombo. In such circumstances the Sri Lankan Government are both willing and are generally able to provide sufficient protection. Whilst claims in this category are likely to be refused, it is unlikely that the claims will fall to be certified as clearly unfounded. However, where an individual claimant is able to demonstrate that they are of such high political profile that they would be unable to obtain sufficient protection or move to another location within Sri Lanka, they should be granted asylum. If the claimant has never been an LTTE member and their actions do not involve leaving the LTTE and subsequently joining another organisation, or the claimant cannot demonstrate significant previous commitment to the LTTE or subsequent formal membership or ongoing and regular assistance to LTTE opposition groups or the Sri Lankan security forces, then the claimant’s activities are unlikely to result in them being targeted by the LTTE in Colombo and such applications under this category therefore are likely to be clearly unfounded and as such fall to be certified. The terms ‘traitor’ or ‘renegade’ are used in relation to those persons who fear being attacked by the LTTE in Colombo because they have engaged in – or the LTTE think they have been engaged in – activity which is seen as disloyal to the LTTE. Those whom the LTTE have targeted in Colombo since the ceasefire have all been high profile activists. It is not the case that all those who have committed or are thought to have committed any “treacherous” act or acts damaging to the LTTE are at risk of being targeted. Claims made by former members of the LTTE who have merely provided information under duress or those refusing to carry out low level ancillary activities for the mainstream LTTE are therefore likely to be clearly unfounded and as such fall to be certified as such. However, where an individual claimant is able to demonstrate that they are an activist of such high profile that they would be unable to obtain sufficient protection or move to another location within Sri Lanka, they should be granted asylum.

3.6.25 Those who fear persecution by the LTTE because of their association to the Karuna faction are unlikely to establish a need for international protection unless the claimant’s association was close and could lead the mainstream LTTE to identify them as a close associate of Colonel Karuna and not someone simply caught up in the schism. If a claimant did not have regular contact with the Karuna faction leaders, particularly after the divisions occurred, and their role was one that did not go beyond basic logistical support, then they are unlikely to be at risk. Few claimants therefore are likely to establish that their association to the Karuna faction gives rise to a fear that is not clearly unfounded. However, where an individual claimant is able to demonstrate that they were closely associated with Karuna that they would be unable to obtain sufficient protection or move to another location within Sri Lanka, they should be granted asylum.

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3. 7. Fear of persecution by the Sri Lankan authorities.

3.7.1 Many claimants will claim asylum based on ill treatment amounting to persecution at the hands of the Sri Lankan authorities due to their past involvement with the LTTE or other political organisations opposed to the Government.

3.7.2 Treatment. An announcement was made on 22 February 2002 that the Sri Lankan Government and the Liberation Tigers of Tamil Eelam (LTTE) had signed an agreement on the cessation of hostilities. The agreement committed the parties to put an end to hostilities and to restore normalcy for all Sri Lankans. The February 2002 agreement between the Sri Lankan government and the LTTE required both parties to abstain from hostile acts against the civilian population, including such acts as torture, intimidation, abduction, extortion and harassment. The parties also agreed that search operations and arrests under the Prevention of Terrorism Act (PTA) should not be made. The LTTE opened political offices in government-held areas (under the terms of the cease-fire agreement LTTE members are able to engage in political activity in areas outside their control provided they are unarmed and out of military-style uniforms).62

3.7.3 It was reported that the Sri Lankan Government continued to hold 38 Tamils under the Prevention of Terrorism Act (PTA) during 2004; however, no new arrests under the PTA occurred. The PTA, like the repealed Emergency Regulations, permitted warrant-less arrest and non-accountable detention. There were no reports of political killings or politically motivated disappearances at the hands of the security forces during 2004. There were however credible reports that some police tortured individuals in custody.63

3.7.4 On 18 August 2006 parliament approved Emergency Regulations following the assassination of the foreign minister. These Regulations give power of arrest to members of the armed forces, who are required to turn suspects over to the police within 24 hours. Individuals arrested under the Emergency Regulations may be detained for up to a year without trial.64

3.7.5 According to the US Department of State report there were no confirmed reports of politically motivated killings by the government; however, it was often alleged that paramilitary groups, sometimes with the aid of the government, engaged in targeted killings of political opponents. The government and the army denied the allegations. The HRC reported 25 instances of politically motivated disappearances at the hands of the security forces during 2005, and 10 instances by paramilitary forces allegedly tied to the government.65

3.7.6 Following the declaration of a State of Emergency, Tamil communities, in all three eastern districts, told Amnesty International that they had experienced increased harassment by the security forces and additional roadblocks caused delays in transporting aid and difficulties accessing LTTE controlled areas.66 At the end of December 2005 hundreds of people were arrested in Colombo under the emergency provisions during cordon and search operations by the security forces.67 A total of 1,798 arrests were made under the Emergency Regulations in 2005 although 1,236 of these were released within 12 hours. The majority of those arrested were Tamil although detainees included Sinhalese and Muslims as well.68 As of 8 February 2006 the overall figure of those still detained was 87 with most detainees having been arrested by the police but 17 by the army, the air force of the navy. The overwhelming majority of these were in detention in police stations in various locations.69

3.7.7 The law makes torture a punishable offence but does not implement several provisions of the UN Convention Against Torture. Human rights groups maintain that while torture is prohibited under specific circumstances it was allowed under others. The HRC and other credible

62 COIS Sri Lanka COI Report Sept 2005 para 4.82-4.83 &4.104 63 COIS Sri Lanka COI Report Sept 2005 para 6.104, 6.131-6.148 64 COIS Sri Lanka Bulletin 1/2006 para 6.01-6.02 65 COIS Sri Lanka Bulletin 1/2006 para 2.01 and 3.01 66 COIS Sri Lanka Bulletin 1/2006 para 6.03 67 COIS Sri Lanka Bulletin 1/2006 para 6.06 68 COIS Sri Lanka Bulletin 1/2006 para 4.01 69 COIS Sri Lanka Bulletin 1/2006 para 6.08 Page 13 of 20 Sri Lanka OGN v3.0 Issued 19 June 2006

sources state that the use of police torture to extract admissions and confession is endemic and conducted with impunity. The Emergency Regulations make confessions obtained under any circumstance, including by torture, sufficient to hold a person until the individual is brought to court.70

3.7.8 Sufficiency of protection. The Human Rights Commission of Sri Lanka (HRC) was established by Act No. 21 of 1996 and is vested with monitoring, investigative and advisory powers in relation to human rights. It has been set up as a permanent national institution to investigate any infringement of a fundamental right declared and recognized by the Constitution and to grant appropriate relief. In June 2004, the HRC established a Torture Prevention Monitoring Unit to implement its ‘zero tolerance’ torture policy. The HRC provided extra training for officers assigned to this unit and established a policy of quick investigation for torture complaints. The HRC also assigned special teams to investigate deaths in police custody.71 In January 2005 the HRC set up a Database on Disappearances Unit. In January 2006 the HRC appointed a team headed by a Special Rapporteur to advise the HRC on the measures to protect the human rights of civilians in the context of the use of emergency powers and the alleged violations of the ceasefire agreement between the government and the LTTE.72 The term of the commissioners of the HRC ended on 3 April 2006 and no new members have been selected to take their place. Appointments to the Commission are to be made by the Constitutional Council which itself lapsed in March 2005 and has not been reconstituted due to political disagreements among parliamentary parties. Since 3 April 2006 the Human Rights Commission has been effectively without independent leadership and the Asian Human Rights Commission have criticised this arrangement suggesting the Commission is under the direct control of the government which will be able to discourage the monitoring of government agencies in any form.73

3.7.9 Following the November 17 presidential election, the government eliminated the Ministry of Internal Security and placed control of the 66-thousand-member police force, which includes the 6-thousand member paramilitary Special Task Force, under the Ministry of Defence. Senior officials in the police force handle complaints against the police, as does the civilian-staffed National Police Commission (NPC). Few police officers serving in Tamil majority areas were Tamil. These officers generally did not speak Tamil or English, which increased the level of misunderstanding and distrust. The NPC is composed entirely of civilians and is authorised to appoint, promote, transfer, discipline, and dismiss all police officers, except for the inspector general of police. The NPC also has the power to establish procedures to investigate public complaints against the police. In practice, however, the NPC devolved responsibility for discipline of less senior police officers to the inspector. During 2005 the NPC handled 187 cases of police torture. Criminal proceedings were initiated in 42 cases, while 86 others were closed due to insufficient evidence. On November 22 2005 the three year term of the NPC lapsed.74 As at April 2006 the National Police Commission continues to be without independent leadership an arrangement which, according to the Asian Human Rights Commission, brings it under the direct control of the government which might discourage the monitoring of government agencies in any form.75

3.7.10 Special sections of the Attorney General’s Office and the Criminal Investigation Unit also focus on torture complaints. During 2004, the units forwarded 44 cases for indictments, of which 11 resulted in indictments, with the remaining cases pending at year’s end. There were two convictions from indictments in earlier years.76 The use of torture is an offence carrying a mandatory seven years imprisonment and of a fine Rs. 10,000 [approx £56].77

70 COIS Sri Lanka Bulletin 1/2006 para 4.01 71 COIS Sri Lanka COI Report Sept 2005 para 6.159, 6.162 72 COIS Sri Lanka Bulletin 1/2006 para 4.05 73 COIS Sri Lanka Bulletin 1/2006 para 4.05-4.06 74 USSD 2005 section 1d. 75 COIS Sri Lanka Bulletin 1/2006 para 4.06 76 COIS Sri Lanka COI Report Sept 2005 para 6.174 77 COIS Sri Lanka COI Report Sept 2005 para 6.193 Page 14 of 20 Sri Lanka OGN v3.0 Issued 19 June 2006

The Inter-Parliamentary Permanent Standing Committee and its Inter-Ministerial Working Group on Human Rights Issues also continued to track criminal investigations of torture.78

3.7.11 NGOs have criticised the Sri Lankan Attorney General for deciding, in individual cases, not to file charges against police officers who have been alleged to have used torture. In other cases the same NGOs have praised the Attorney General when he has decided to file charges commenting that it indicates that the impunity enjoyed by some state officers who flout the law is now being challenged. NGOs have also made strong representations to the Inspector General of Police, Attorney General and other relevant state agencies to implement a witness protection programme. NGOs have said that although regrets are expressed over deaths, no positive attempt has been taken to introduce a witness protection programme and to provide resources for it and that under these circumstances victims of torture who take cases to trial are faced with serious danger. On the one hand they wish to have the perpetrators of torture punished. On the other hand they are afraid of jeopardising the life and freedom of their family members and also themselves. Many torture victims have relocated to other areas in search of security.79

3.7.12 Under fundamental rights’ provisions in the Constitution, torture victims may file civil suit for compensation in the high courts or Supreme Court. Courts have granted awards of up to 1,000,000 rupees (approx £5,600).80

3.7.13 Whilst torture in police custody is a problem in Sri Lanka the government has undertaken steps aimed at reducing this practice and there are avenues for complaint available via the HRC or the NPC, although as at April 2006 there are concerns about the ongoing governance of these organisations. Taking these issues into account there can be said to be a general sufficiency of protection for those fearing rogue police actions in Sri Lanka.

3.7.14 Internal relocation. Claimants with a well founded fear of persecution by the authorities would not be able to internally relocate to another part of the country controlled by the Sri Lankan government to escape any such risk.

3.7.15 However the LTTE has effective control on the ground in large sections of the north and east of the country and operates a parallel administration that includes schools, hospitals, courts, and police and other law enforcement personnel.81 Claimants who fear persecution at the hands of the Sri Lankan government in areas controlled by the government are able to relocate to LTTE controlled areas and it would not normally be found to be unduly harsh for claimants to relocate in this way. Similarly where the risk relates to the actions of rogue police officers individuals will be able to relocate to escape the attention of the police officer concerned either to another area under government control or to areas under LTTE control.

3.7.16 Caselaw.

[2003] UKIAT 00096 VK (Sri Lanka) CG (Risk-Release-Escapes LTTE) , YP (Maintenance- Detention Records) Sri Lanka CG [2003] UKIAT 000145 and V [2004] UKIAT 00012 clearly established in the cases that the peace process in Sri Lanka is well established and is being observed and as a result the situation and risk to Tamils is greatly changed. As stated in V, “it has for some time now been the case that there has been international acceptance of the appropriateness of return of failed asylum seekers, unless there are clear reasons for considering that they may be particularly at risk”.

Thampibillai v The Netherlands [2004] ECHR 39. The European Court of Human Rights (ECtHR) said that in the current climate in Sri Lanka it is unlikely that a returning LTTE supporter will face a real risk of being subjected to ill-treatment by the State. “No round-ups and no large-scale and/or arbitrary arrests of Tamils have taken place and Tamils no longer require permission before travelling to certain areas … persons who are arrested on suspicion of membership of, or involvement in, the LTTE are not subjected to ill-treatment and torture as has occurred in the past”.

78 COIS Sri Lanka COI Report Sept 2005 para 6.174 79 COIS Sri Lanka COI Report Sept 2005 para 6.191- 6.195 80 COIS Sri Lanka COI Report Sept 2005 para 6.179, 6.186-6.187 81 Freedom House "Freedom in the World 2005” Aug 2005 Page 15 of 20 Sri Lanka OGN v3.0 Issued 19 June 2006

Venkadajalasarma v The Netherlands [2004] ECHR 40. The ECtHR confirmed its position with regard to the safety of returning LTTE supporters.

3.7.17 Conclusion. Following the announcement of the cease-fire in February 2002, the Sri Lankan authorities de-proscribed the LTTE and suspended arrests made under the Prevention of Terrorism Act (PTA). Emergency Regulations imposed in August 2005 which continue to be in place allow the arrest of individuals by members of the armed forces and that those detained may be detained for up to one year. However the number who continued to be in detention following arrests in Colombo in December 2005 is relatively small. Although the majority of those arrested in December were Tamils, detainees included Sinhalese and Muslims, and taking this into account and the fact that the majority were released within 12 hours it can still be said that generally the authorities in Sri Lanka are no longer concerned with those individuals with past low-level support for the LTTE. Taking these events into account there continues to be no evidence that the authorities in Sri Lanka are concerned with those individuals with past low-level support for the LTTE. Claims under this category are therefore likely to be clearly unfounded and fall to be certified as such.

3.7.18 Those individuals who may be of continuing interest to the authorities would be those wanted for serious offences. These cases will be exceptional, and will normally be high- profile members of the LTTE who are still active and influential, and wanted by the authorities. Such individuals may face prosecution on return, although there is no evidence to suggest that they would not be treated fairly and properly under Sri Lankan law. Claims made under this category are therefore not likely to lead to a grant of asylum or Humanitarian Protection but taking into account the continuing interest of the authorities in those of high profile, and the introduction of the Emergency Regulations such claims cannot be considered to be clearly unfounded. Caseworkers should note that the LTTE have been responsible for numerous serious human rights abuses, some of which amount to war crimes. If it is accepted that a claimant was an active operational member or combatant for the LTTE and has been involved in such actions, then caseworkers should consider whether one of the Exclusion Clauses is applicable. Caseworkers should refer such cases to a Senior Caseworker in the first instance.

3.7.19 There is in general sufficient protection available to those claimants who express fear of rogue state officials after having made complaints to the Sri Lankan authorities with regard to, for example, the use of torture. Furthermore internal relocation is also an option where, in the particular circumstances of the claimant it is not considered unduly harsh for the victim to exercise this. The grant of asylum or Humanitarian Protection is unlikely therefore to be appropriate. Such claims should only be certified as clearly unfounded if internal relocation is clearly an option.

3 Prison conditions

3.8.1 Claimants may claim that they cannot return to Sri Lanka due to the fact that there is a serious risk that they will be imprisoned on return and that prison conditions in Sri Lanka are so poor as to amount to torture or inhuman treatment or punishment.

3.8.2 Consideration. It is reported that prison conditions do not meet international standards due to acute overcrowding and a lack of sanitary facilities. In some cases, juveniles are not held separately from adults. Pre-trial detainees are not held separately from those convicted. The government permitted visits by independent human rights observers, and during 2005 the International Committee of the Red Cross (ICRC) conducted 192 visits to 24 permanent places of detention, including prisons and some police stations. The national office of the HRC did not provide information on visits to detention centres.82

3.8.3 During 2005 the ICRC conducted 22 visits to 3 LTTE-controlled prison facilities and 53 visits to 17 LTTE-operated police stations. Credible observers reported that conditions in these prisons were on par with local standards.83

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3.8.4 Conclusion Whilst prison conditions in Sri Lanka are poor with acute overcrowding and lack of sanitary facilities being particular problems, conditions are unlikely to reach the Article 3 threshold. Therefore even where claimants can demonstrate a real risk of imprisonment on return to Sri Lanka a grant of Humanitarian Protection will not generally be appropriate. Similarly where the risk of imprisonment is for reason of one of the five Refugee Convention grounds a grant of asylum will not be appropriate. However, the individual factors of each case should be considered to determine whether detention will cause a particular individual in his particular circumstances to suffer treatment contrary to Article 3, relevant factors being the likely length of detention the likely type of detention facility and the individual’s age and state of health. Where in an individual case treatment does reach the Article 3 threshold a grant of Humanitarian Protection will be appropriate unless the risk of imprisonment is for reason of one of the five Refugee Convention grounds in which case a grant of asylum will be appropriate.

4 Discretionary Leave

4.1 Where an application for asylum and Humanitarian Protection falls to be refused there may be compelling reasons for granting Discretionary Leave (DL) to the individual concerned. (See API on Discretionary Leave)

4.2 With particular reference to Sri Lanka, the types of claim which may raise the issue of whether or not it will be appropriate to grant DL are likely to fall within the following categories. Each case must be considered on its individual merits and membership of one of these groups should not imply an automatic grant of DL. There may be other specific circumstances not covered by the categories below which warrant a grant of DL - see the API on Discretionary Leave.

4.3 Minors claiming in their own right

4.3.1 The policy on minors claiming in their own right is set out in the API on Children. Unaccompanied minors who have not been granted asylum or HP can only be returned where they have family to return to or there are adequate reception, care and support arrangements. At the moment we do not have sufficient information to be satisfied that there are adequate reception, care and support arrangements in place.

4.3.2 Minors claiming in their own right without a family to return to, or where there are no adequate reception, care and support arrangements, and who do not qualify for leave on any more favourable grounds, should be granted Discretionary Leave for a period of twelve months or until their 18th birthday, whichever is the shorter period

4.4 Medical treatment

4.4.1 Claimants may claim they cannot return to Sri Lanka due to a lack of specific medical treatment. See the IDI on Medical Treatment which sets out in detail the requirements for Article 3 to be engaged.

4.4.2 In Sri Lanka, the traditional Western medical structure of general practitioners, specialists and hospitals with operating theatres and emergency units, co-exists with the traditional practice of ayurvedic (herbal) medicine. The country has its own National Health Service, which is available to everyone. In the Colombo area and one or two of the larger centres such as Kandy, there are many well-reputed hospitals, staffed by physicians, most of whom are very experienced and internationally trained. There is an extensive range of specialist care found in Colombo, both in the private and government sectors. Specialist care would include treating such conditions as cardiac, gastro-intestinal, dermatological, urological, orthopaedic and general surgery.84

4.4.3 Most medications are available in Colombo, under various generic and company labels. The prices for medications bought in Sri Lanka range widely, but as a comparison, most drugs would be cheaper than in the United Kingdom for prescription and dispensing charges. On

84 COIS Sri Lanka COI Report Sept 2005 para 5.43 – 5.48 Page 17 of 20 Sri Lanka OGN v3.0 Issued 19 June 2006

the whole, medical care is affordable for the average person, and government hospitals generally charge a lesser fee than private hospitals.85

4.4.4 It is reported that in addition to the National Health Service, there were 160 private medical institutions and 800 private dispensaries including family physicians in the country. Over 60 per cent of the population are reported to obtain medical treatment from private medical institutions, and a majority of them sought medical treatment through channelled services and family physicians.86

4.4.5 Caselaw

[2002] UKIAT 04269 PR (Sri Lanka) CG (Medical Facilities): Adequate medical facilities are available in Sri Lanka, particularly in Colombo and the other centres.

4.4.6 The Article 3 threshold will not be reached in the great majority of medical cases and a grant of Discretionary Leave will usually not be appropriate. Where a caseworker considers that the circumstances of the individual claimant and the situation in the country reach the threshold detailed in the IDI on Medical Treatment making removal contrary to Article 3 a grant of discretionary leave to remain will be appropriate. Such cases should always be referred to a Senior Caseworker for consideration prior to a grant of Discretionary Leave.

5 Returns

5.1 Factors that affect the practicality of return such as the difficulty or otherwise of obtaining a travel document should not be taken into account when considering the merits of an asylum or human rights claim.

5.2 On 31 December 2004 the forced return of persons to areas that had been directly affected by the tsunami were temporarily suspended. In the case of Sri Lanka, removals were temporarily suspended to the coastal areas of the north, east, south and south-west.

5.3 Following improvement in conditions in the tsunami affected areas, the temporary suspension of forced returns was ended on 10 November 2005 and the normal practice was resumed of taking forward all forced removals on an individual basis taking full account of any reason a person puts forward for not being removed.

5.4 Assistance is provided for those that wish to return voluntarily and permanently through the Voluntary Assisted Return and Reintegration Programme (VARRP) run by the International Organisation for Migration (IOM) and co-funded by the European Refugee Fund. IOM will provide advice and help with obtaining travel documents and booking flights, as well as organising reintegration assistance. The programme was established in 2001, and is open to those awaiting an asylum decision or the outcome of an appeal, as well as failed asylum seekers. Sri Lankan nationals wishing to avail themselves of this opportunity for assisted return should be advised to contact the IOM by telephone: 020 7233 0001 or by email: www.iomlondon.org.

6 List of source documents

UK Home Office RDS-COI Service Sri Lanka Country of Origin Information Report: September 2005 http://www.homeoffice.gov.uk/rds/country_reports.html

UK Home Office RDS-COI Service Sri Lanka Country Bulletin 1/2006 http://www.homeoffice.gov.uk/rds/country_reports.html

UK Home Office RSC-COI Service Sri Lanka Country Bulletin 1/2005 http://www.homeoffice.gov.uk/rds/country_reports.html

85 COIS Sri Lanka COI Report Sept 2005 para 5.43 – 5.48 86 COIS Sri Lanka COI Report Sept 2005 para 5.43 – 5.48 Page 18 of 20 Sri Lanka OGN v3.0 Issued 19 June 2006

Foreign and Commonwealth Office, Country Profile on Sri Lanka, 18 May 2006 http://www.fco.gov.uk/servlet/Front?pagename=OpenMarket/Xcelerate/ShowPage&c=Page&cid= 1007029394365&a=KCountryProfile&aid=1019041599186

United States Department of State Sri Lanka Country Report on Human Rights Practices-2005 http://www.state.gov/g/drl/rls/hrrpt/2005/61711.htm

European Union Delegation of the European Commission to Sri Lanka and the Maldives EOM Press Release 10 March 2006 http://www.dellka.cec.eu.int/en/press_office/press_releases_pdf/Press%20Release%2010%20ma rch.pdf

EPDPNEWS Killing/Abduction/Attempt to Murder Causing Injuries to EPDP Members by LTTE since Signing of Ceasefire Agreement on 23 February 2002 to December 2005 http://www.epdpnews.com/Heroes/LateMembersList29.8.05.html

Human Rights Watch Sri Lanka Country Summary January 2006 http://hrw.org/english/docs/2006/01/18/slanka12252.htm

Sri Lanka Monitoring Mission Summary of recorded complaints and violations from All Districts Period Listed 1/02/2002 – 28/02/2006 http://www.slmm.lk/

Sri Lanka Monitoring Mission SLMM Colombo: 2 June 2006 Violations of the Ceasefire Agreement http://www.slmm.lk/intros/C_and_V.html

BBC News Violence hits Sri Lanka port town http://news.bbc.co.uk/1/hi/world/south_asia/4929444.stm

BBC News Bomb targets Sri Lanka army chief 25 April 2006 http://news.bbc.co.uk/1/hi/world/south_asia/4941744.stm

BBC News Fresh strikes on Sri Lanka rebels 26 April 2006 http://news.bbc.co.uk/1/hi/world/south_asia/4945176.stm

BBC News Sri Lanka explosion “kills five” 1 May 2006 http://news.bbc.co.uk/1/hi/world/south_asia/4961536.stm

BBC News Tamil Tigers dismiss early talks 9 May 2006 http://news.bbc.co.uk/1/hi/world/south_asia/4983574.stm

BBC News Senior Rebel killed in Sri Lanka 22 May 2005 http://news.bbc.co.uk/1/hi/world/south_asia/5003086.stm

BBC News Probe into ‘Slaughter’ of Tamils 15 May 2005 http://news.bbc.co.uk/1/hi/world/south_asia/4772865.stm

Reuters Foundation AlertNet Sri Lanka hopes EU ban will push rebels to talks 30 May 2006 http://www.alertnet.org/thenews/newsdesk/SP234170.htm

Reuters Foundation AlertNet U.N. official decries Sri Lanka civilian killings 23 May 2006 http://www.alertnet.org/thenews/newsdesk/L23655319.htm

Reuters Foundation AlertNet S. Lanka air force bombs area near rebel stronghold 11 May 2006 http://www.alertnet.org/thenews/newsdesk/SP306527.htm

Page 19 of 20 Sri Lanka OGN v3.0 Issued 19 June 2006

UNHCR Briefing Notes Sri Lanka: Despite apparent stabilisation, UNHCR remains concerned for thousands displaced. http://www.unhcr.org/cgi-bin/texis/vtx/news/opendoc.htm?tbl=NEWS&id=4451eb4f4&page=news

Institute of Conflict Management, South Asia Terrorism Portal (SATP): “Fatalities district wise 2005 and 2006” http://www.satp.org/satporgtp/countries/shrilanka/database/FatilitiesDisticwise_2005.htm accessed 1 June 2006 http://www.satp.org/satporgtp/countries/shrilanka/database/FatilitiesDisticwise_2006.htm accessed 12 June 2006

“Prominent Tamil political leaders assassinated since the Ceasefire Agreement” http://www.satp.org/satporgtp/countries/shrilanka/database/leaders_assassinated_byLTTE2.htm accessed 13 June 2006

“Incidents of violence between the LTTE and Tamil National Front (rebel faction led by Vinayagamoorthy Muralitharan alias 'Colonel' Karuna)” http://www.satp.org/satporgtp/countries/shrilanka/database/violenceincidents.htm accessed 1 June 2006

“Casualties of Terrorist Violence in Sri Lanka” http://www.satp.org/satporgtp/countries/shrilanka/database/annual_casualties.htm accessed 12 June 2006

Freedom House. "Freedom in the World 2005 - The Annual Survey of Political Rights and Civil Liberties” August 2005 http://www.freedomhouse.org/template.cfm?page=22&year=2005&country=6836

Asylum and Appeals Policy Directorate 19 June 2006

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