A recent High Court judgment shows that Tamils have been unlawfully detained and possibly wrongly refused asylum because of Home Office non-disclosure of its own policies.
A High Court judge recently held that a Tamil who has been held for deportation for over three years had been unlawfully detained, because the Home Office failed to tell the court promptly that they had suspended the removal of Tamils following the defeat of the Liberation Tigers of Tamil Eelam (LTTE) in May 2009.
B is a 31-year-old Sri Lankan Tamil who has been in the UK for over nine years since arriving and claiming asylum. Although his claim was refused, the immigration judge accepted on appeal that he had probably been ill-treated as a suspected helper of the LTTE before leaving Sri Lanka. But the cease-fire in operation between the LTTE and the Sri Lankan government at that time was fatal to the appeal. Later, B became involved in criminal activity, served a prison sentence and was facing deportation when the cease-fire broke down and Tamils with any LTTE connection once more faced the prospect of ‘systematic torture and ill-treatment’ and ‘a culture of torture with impunity’ (according to the European Court of Human Rights in NA v United Kingdom, the July 2008 test case about the removal of Tamil refused asylum seekers to Sri Lanka).
Despite the European Court ruling, the Home Office maintained the decision to deport him, and at the end of his criminal sentence, he remained locked up pending deportation. His solicitors asked them to reconsider. Their arguments were rejected on 24 April 2009, as battle raged in northern Sri Lanka. With the military defeat of the LTTE and the rumours and reports of internment and ill-treatment of thousands of Tamil civilians, the Home Office decided not to enforce the removal of Tamils to Sri Lanka for the time being. But the policy was never made public. Worse, the barrister representing the Home Office at B’s hearing initially denied the existence of such a policy, and it was only disclosed after the judge adjourned the hearing for further investigation. It transpired that Home Office representatives opposing Tamil asylum appeals in the Asylum and Immigration Tribunal had also been denying the existence of any non-removal policy. Whether this was deliberate misleading of the court, or simply that those devising the policy at the Home Office had not bothered to reveal its existence to case workers and representatives, has not yet been made clear. What does seem clear is that Tribunal decisions upholding the refusal of asylum to Tamils since the end of April 2009 have been made in ignorance of a policy which is potentially highly relevant to the issue of whether Tamil returnees are likely to face ill-treatment. For as Judge Pelling said, ‘at least one reason for the review must be not so much the end of hostilities itself but a concern about possible human rights abuses against the minority in the aftermath’.
The judge ruled that B’s detention was unlawful because the policy not to remove Tamils for the time being meant he was unlikely to be removed within a reasonable time, bearing in mind that he had already been held for three and a quarter years beyond the expiry of his criminal sentence. The maximum period of detention for removal under EC law (the ‘Return Directive’) is 18 months, a period condemned as far too long by human rights activists, particularly those from countries where immigration detention is generally limited to a matter of days. The UK has opted out of this Directive, however, and among the reasons for the opt-out is the Home Office belief that a legal limit of 18 months’ detention is too short.
Immigration lawyers point out that this is by no means the first time that the Home Office has misled the courts over the possibility and imminence of removal, in the context of lengthy detention of deportees and rejected asylum seekers. In 2007, in a case about a Somali man (‘A’) who had been detained pending his deportation, the Court of Appeal referred to ‘three occasions between November 2004 and October 2005 [when] misleading statements were made on behalf of the Home Secretary about enforced removals to Somalia’. A was held in immigration detention on the basis that, according to the Home Office presenting officer, his removal to Somaliland was possible and imminent, which was not true.
The Immigration Law Practitioners’ Association (ILPA) is calling for a code of conduct to ensure that Home Office presenting officers do not mislead the courts. The proposal, and the need for disciplinary sanctions, was referred to by senior immigration judges in another recent case, in which a Somali asylum seeker won his appeal on the basis of a concession by the Home Office presenting officer that he was a member of a persecuted minority clan, the Ashraf, only for the Home Office to lodge an application for review, challenging the man’s clan membership and claiming that no such concession had been made at the hearing. The Home Office had to withdraw the claim when the judge’s contemporaneous record of the hearing unequivocally confirmed that the disputed concession was made.
Read the NA v United Kingdom judgment (pdf file, 404kb)