17 October 2008

FOURTH SECTION
Application no. 41178/08
by Elankumaran GANESHAMURTHY
against the United Kingdom
lodged on 28 August 2008

STATEMENT OF FACTS
THE FACTS
The applicant, Mr Elankumaran Ganeshamurthy, is a Sri-Lankan national who was born in 1976 and lives in London. He is represented before the Court by Mr S.Satha, a lawyer practising in London.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant arrived in the United Kingdom on 7 November 2000 and claimed asylum on the same day. On 7 March 2001 the applicant’s asylum claim was refused. The applicant has not provided the Court with a copy of this decision for review.
On 17 April 2002 the applicant’s appeal was dismissed by an Adjudicator. With no Home Office representative present at the hearing to challenge the applicant’s account, the Adjudicator accepted that the applicant had been a member of the LTTE and that he was detained and ill‑treated by the army in 1996. The Adjudicator also accepted that the scars were caused by shell fragments as the applicant claimed. She noted that the applicant’s scars were not readily visible and would not cause the applicant to stand out; this was particularly evidenced by the fact that the applicant was able to leave Sri Lanka without difficulty, having travelled across the country and passed through checkpoints, which suggested that he was of no interest to the authorities. The Adjudicator commented that it was difficult to see how the applicant could claim that the LTTE believed that he was giving information to the army regarding their activities given that he had not had any further dealings with the LTTE since his release from detention in 1996. As regards the applicant’s Article 8 rights, the Adjudicator noted that the applicant had been separated from his brother and sister for eight and 12 years respectively; neither was present at the hearing; and they could visit the applicant in Sri Lanka should they so wish.
On 28 May 2002 permission to appeal to the Immigration Appeal Tribunal was rejected and on 9 October 2006 permission to apply for Judicial Review was refused. On 5 February 2007 the applicant submitted fresh representations which were refused on 16 February 2007. The applicant has not submitted a copy of this decision to the Court for review. On 21 February 2007 another application for permission to apply for Judicial Review was refused.
On 10 January 2008 the applicant submitted fresh representations requesting that his case be reconsidered in light of the country guidance determination of LP(see below). TSecretary of State responded in a letter dated 27 August 2008 stating 
“It is accepted that your client is of Tamil ethnicity as claimed. It is not believed that your client was tortured and as such it is doubtful he was a member of the LTTE as claimed”.
This reasoning led to the conclusion that the applicant’s only risk factors were his Tamil ethnicity and scarring, which the Secretary of State pointed out only had significance if combined with other factors likely to bring the applicant to the attention of the authorities.
B.  Relevant domestic law
 [2007] UKAIT 00076 the Asylum and Immigration Tribunal (“AIT”) considered the case of a Tamil, LP, from Jaffna in the north of Sri Lanka. He had experienced problems with the LTTE and the Sri Lankan authorities and fled Sri Lanka on 29 December 1999 but had been refused asylum in the United Kingdom by the Secretary of State. In dismissing LP’s appeal on asylum grounds but allowing it on the basis of Article 3 of the Convention, the AIT gave the following guidance in the headnote to its determination:
“(1)  Tamils are not per se at risk of serious harm from the Sri Lankan authorities in Colombo. A number of factors may increase the risk, including but not limited to: a previous record as a suspected or actual LTTE member; a previous criminal record and/or outstanding arrest warrant; bail jumping and/or escaping from custody; having signed a confession or similar document; having been asked by the security forces to become an informer; the presence of scarring; return from London or other centre of LTTE fundraising; illegal departure from Sri Lanka; lack of an ID card or other documentation; having made an asylum claim abroad; having relatives in the LTTE. In every case, those factors and the weight to be ascribed to them, individually and cumulatively, must be considered in the light of the facts of each case but they are not intended to be a check list.
(2)  If a person is actively wanted by the police and/or named on a Watched or Wanted list held at Colombo airport, they may be at risk of detention at the airport.
(3)  Otherwise, the majority of returning failed asylum seekers are processed relatively quickly and with no difficulty beyond some possible harassment.
(4)  Tamils in Colombo are at increased risk of being stopped at checkpoints, in a cordon and search operation, or of being the subject of a raid on a Lodge where they are staying. In general, the risk again is no more than harassment and should not cause any lasting difficulty, but Tamils who have recently returned to Sri Lanka and have not yet renewed their Sri Lankan identity documents will be subject to more investigation and the factors listed above may then come into play.
(5)  Returning Tamils should be able to establish the fact of their recent return during the short period necessary for new identity documents to be procured.
(6)  A person who cannot establish that he is at real risk of persecution in his home area is not a refugee; but his appeal may succeed under article 3 of the ECHR, or he may be entitled to humanitarian protection if he can establish he would be at risk in the part of the country to which he will be returned.
(7)  The weight to be given to expert evidence (individual or country) and country background evidence is dependent upon the quality of the raw data from which it is drawn and the quality of the filtering process to which that data has been subjected. Sources should be given whenever possible.
(8)  The determinations about Sri Lanka listed in para 229 [of the determination – see below] are replaced as country guidance by this determination. They continue to be reported cases.”
The Court has affirmed this approach in N.A. v. United Kingdom, application no. 25904/08, 17 July 2008, § 127 and considers that “substantive weight” should be accorded to it.
COMPLAINTS
The applicant complains under Articles 2, 3 and 8 of the Convention. The applicant’s complaint under Articles 2 and 3 relate to his fear of ill‑treatment by the LTTE and the Sri Lankan army. His Article 8 complaint concerns possible separation from his siblings in the United Kingdom.
QUESTION TO THE PARTIES

1.  On what basis did the Secretary of State make the finding of fact that the applicant had not been tortured? (See decision letter dated 27 August 2007)

2.  Would there be a violation of the applicant’s rights under Article 2 of the Convention if he were returned to Sri Lanka?

3.  Would there be a violation of the applicant’s rights under Article 3 of the Convention if he were returned to Sri Lanka?