The Immigration and Asylum Chamber of the United Kingdom Upper Tribunal (“UKUT”) can issue ‘country guidance’ decisions, which guide (and, in most circumstances, bind) government decision-makers in assessing conditions in particular countries in determining whether asylum seekers are entitled to protection in the UK. The UKUT’s decision in GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) (“GJ and Others”) provides country guidance on ‘the current categories of persons at real risk of persecution or serious harm on return to Sri Lanka’. (All paragraph references in [square brackets] are to the decision.) Even though the decision was reached in 2013 (and therefore predates the incumbent Sirisena administration in Sri Lanka), GJ and others remains current as ‘country guidance’ in the UK.

The UKUT’s decision in GJ and Others represents an important and influential perspective on contemporary human rights developments in South Asia. This post examines the conclusions reached in GJ and Others and the decision’s salience for India.

In GJ and others, three asylum seekers (“GJ”, “NT” and “MP”) appealed to the UKUT against decisions to refuse each asylum in the United Kingdom. GJ claimed that his family had been loyalists of the Liberation Tigers of Tamil Eelam (“LTTE”), that his sister had served as medical adviser to LTTE leader Prabhakaran, and that he himself had served as a member of the LTTE from May 2007 until the end of the Sri Lankan Civil War in May 2009. NT claimed to have worked for the LTTE at a checkpoint at Puthukudyiruppu for two years, to have been re-recruited to the movement in 2008 and to have dug bunkers and transported casualties until surrendering at the end of the Civil War. MP claimed to have been involved with the LTTE in 1995-1997. All three had previously been detained and tortured in Sri Lanka.

Prior to GJ and others, the UK’s previous governing country guidance decisions on Sri Lanka were TK (Tamils, LP updated) Sri Lanka CG [2009] UKAIT 00049 (“TK”) and LP (LTTE area – Tamils – Colombo – risk?) Sri Lanka CG [2007] UKAIT 00076 (“LP”). LP identified various potential ‘risk categories’ for returnees to Sri Lanka, including ‘Tamil ethnicity’, ‘[p]revious record as a suspected or actual LTTE member or support’, ‘[i]llegal departure from Sri Lanka’, ‘[h]aving made an asylum claim abroad’ and ‘[h]aving relatives in the LTTE’. Each of these risk factors were to be considered ‘individually and cumulatively’. TK reaffirmed these categories several months after the end of the Sri Lankan Civil War.

GJ and others, by contrast, was handed down in July 2013, four years after the Civil War, and departed from the approach set down in TK and LP, replacing ‘all existing country guidance on Sri Lanka’. The UKUT acknowledged the mass internment of Tamils in IDP camps near Vavuniya after the end of the Civil War (at [298]), the detention of suspected LTTE cadres and supporters in ‘rehabilitation’ camps (at [298]-[300]), the militarisation of Sri Lanka’s Northern Province (at [305]), [328], [342]), the abuse of some individuals with former LTTE links upon return to Sri Lanka (at [311]) and continuing ‘white van’ abductions (at [343]). The UKUT concluded, however, that the Sri Lankan government’s contemporary concern ‘is not with past membership or sympathy [with the LTTE], but with whether a person is a destabilising threat in post-conflict Sri Lanka’ (at [311]), with particular regard to diaspora activism (at [354]). The UKUT did not accept ‘that previous LTTE connections or sympathies (whether direct or familial) are perceived by the [Government of Sri Lanka] as indicating now that an individual poses a destabilising threat in post-conflict Sri Lanka’ (at [325]), although the decision cautions that the extent to which such links will inform the Sri Lankan government’s actions ‘will always be fact specific’. Personal histories, including histories of separatist sympathies, will be relevant only to the extent that these sympathies are perceived by Sri Lankan authorities ‘as indicating a present risk to the unitary Sri Lankan state or the Sri Lankan government’ (at [356(8)]).

In GJ and others, the UKUT set out a number of new ‘risk categories’ (at [356(7)]); the decision has been interpreted as ‘effectively closing the door to those who do not fall within’ these categories. Several categories are relatively specific: journalists; individuals who had given evidence to the Lessons Learned and Reconciliation Commission implicating the Sri Lankan authorities in alleged war crimes; and persons listed on computerised “stop” lists accessible at Sri Lanka’s international airport. The only other listed risk category, the first and broadest, has attracted particular contention in its application: ‘[i]ndividuals 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’.

The resolution of the appeals before the UKUT provides some indication of what this category means. The UKUT allowed GJ’s appeal, finding that ‘his significant involvement in the LTTE’s finance wing and its fuel supply’, his sister’s close connections to Prabhakaran, his ‘pro-Tamil separatism activities in the United Kingdom’ and enquiries made by the Sri Lankan authorities about him since his departure from that nation, in combination, indicated that GJ was perceived ‘as having a significant role in relation to post-conflict Tamil separatism within the diaspora’ (at [397]). The UKUT dismissed MP and NT’s appeals, although it found that NT’s severe post-traumatic stress disorder, depression and suicidal ideation would cause his removal to Sri Lanka to breach the UK’s obligations under article 3 of the ECHR.

GJ and others’ analysis of Sri Lankan government policy circa 2013 differs substantially from the analyses of other observers. The UNHCR’s Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka (21 December 2012) (“Guidelines”), for example, identify ‘persons suspected of certain links with the [LTTE]’ as a continuing ‘risk profile’ in contemporary Sri Lanka, finding that ‘previous (real or perceived) links that go beyond prior residency within an area controlled by the LTTE continue to expose individuals to treatment which may give rise to a need for international refugee protection, depending on the specifics of the individual case’. The Guidelines lack GJ and others’ substantial focus upon activism within the diaspora, instead emphasising the significance of antecedents (and ties to the LTTE) as a source of continuing risk in themselves in Sri Lanka. The decision’s take on the contemporary salience of past ties to the LTTE is also at odds with other reports from governments and NGOs.

A challenge to the country guidance established in GJ and others was rejected by the UKUT in KK (Application of GJ) Sri Lanka [2013] UKUT 00512. MP and NT appealed to the Court of Appeal of England and Wales, partially on the allegation that the UKUT did not give appropriate weight to the UNHCR Guidelines. In MP and NT (Sri Lanka) v SSHD [2014] EWCA Civ 829, the Court of Appeal found that the UKUT had adequately justified its adoption of a more restrictive (‘less generous’) standard for who would be at risk upon return to Sri Lanka than that of by the UNHCR. NT’s appeal was allowed (and his case remitted to the UKUT) on the basis of the UKUT’s inappropriate consideration (and lack of consideration) of various facts specific to his particular case, while MP’s appeal was dismissed.

GJ and others has been extensively cited in refugee status determination internationally, both by advocates and by decision-makers (for example, by Australia’s former Refugee Review Tribunal). This is significant because, as noted above, the UKUT adopted a different (and narrower) view of which individuals were at risk in Sri Lanka circa 2013 than that of other sources at that time and since. The decision represents a substantial divergence between observers as to the extent and nature of human rights abuses in Sri Lanka.

This is not only significant for Sri Lankan citizens seeking asylum abroad. Human rights and the treatment of Tamils in Sri Lanka are perennial political issues in Tamil Nadu and in India more broadly. India is home to more than 100 000 Tamil refugees from Sri Lanka (with many Sri Lankan Tamil refugees subsequently travelling from India to other nations), and the treatment of Tamils in Sri Lanka has frequently provoked political comment and controversy in India (particularly in Tamil Nadu). An increasing shift among other nations towards the view that only individuals (like GJ) with substantial ties to the LTTE (sufficient, in their extent, to prompt contemporary perceptions of risk to Sri Lankan national unity) are threatened in Sri Lanka limits India’s ability to push for enhanced protections of the rights of Tamils in Sri Lanka. Similarly, the removal of Sri Lankan asylum seekers back to Sri Lanka increases the likelihood that such individuals may, if still at risk in their home country, try to find safety in India.