Home Affairs Committee

About TAG

1. Tamils Against Genocide Inc. and Tamils Against Genocide (Europe) Limited, jointly TAG, are part of an International non-profit human rights organization incorporated in the United States in 2008 and United Kingdom in 2012. TAG is devoted to advocacy, research and litigation against genocide and its accompanying human rights violations. TAG’s fourth function is the provision of support to victims of war crimes and human rights abuses from Sri Lanka.

2. TAG’s standing to make submissions to the UK High Court has been accepted by Mr Justice Mitting and by Lord Justice Kay; respectively in the case Tamils Against Genocide And SSHD [CO/12153/2011] and subsequent appeal at the Court of Appeal. TAG has previously intervened in two asylum cases at the Administrative Court, Queen’s Bench Division [including CO/9452/2011]. TAG is an Interested Party in the Country Guidance Case between MP, NT, GJ and SSHD that is currently ongoing. TAG has provided several expert witness reports and supporting letters in UK asylum cases. The UK Border Agency has not challenged TAG’s standing at any point.

3. TAG’s mandate is accessible on our website at www.tamilsagainstgenocide.org where the majority of TAG’s research reports and press releases are also available.

Executive Summary

4. TAG requests that a separate asylum category for war crimes witnesses be established, and that the UKBA assist relevant organisations in the identification of potential witnesses.

5. We note that Operational Guidance Policy Bulletins have been produced without consultation with NGOs whose work they critique and dismiss. Bulletins have been published that contain errors, and often directly prior to a scheduled failed asylum seekers charter flight allowing insufficient time for NGOs and legal practitioners to respond. We therefore recommend that NGOs are consulted with prior to the publication of such reports.

6. TAG has observed the dismissal of torture claims and the presence of scarring without recourse to evidence, and a distinct lack of sensitivity for the victim.

7. Only upon receipt of a Freedom of Information Request has the UKBA analysed its own available date with regard to the treatment of failed asylum seekers. We contend that such analysis should be done as a matter of course.

8. Scheduled Charter flights of forced returns should cease to be a method of returning failed Tamil asylum seekers. More generally, when a Country Guidance asylum case is on-going, Charter flights of failed asylum seekers should be suspended. Justice Wilkie and Upper Tribunal Judge Gleeson ruled in February 2013 that there should be a suspension in the case of Sri Lankan Tamil failed asylum seekers.

9. In light of the statement by Minister Alistair Burt regarding evidence of the treatment of Tamil returnees, we suggest that a review of the liaison systems between the FCO and Home Office with regards to asylum be undertaken.

10. Factual Information:

(a) Report of the Office of the United Nations High Commissioner for Human Rights on advice and technical assistance for the Government of Sri Lanka on promoting reconciliation and accountability in Sri Lanka, 11 February 2013, accessible at http://www.southasianrights.org/wp-content/uploads/2013/02/OHCHR-Report-on-Sri-Lanka-February-11–20132.pdf

(b) TAG Report, “Witness Intimidation in Sri Lanka. An Overview of Intimidation and Attacks on Witnesses and Victims of Atrocities” 2011 (Appendix B)

(c) TAG Report, “Returnees at Risk: Detention and Torture in Sri Lanka” September 2012 http://www.tamilsagainstgenocide.org/Data/Docs/TAG-Report-16-Sep-2012-Returnees-at-Risk.pdf (Appendix C)

(d) TAG Report, “Activist Intimidation: Surveillance and Intimidation of Tamil Diaspora activists and their supporters” 13 March 2013 (Appendix A)

11. We recommend as follows:

(a) The establishment of a separate visa category for witnesses of war crimes

(b) That NGOs be consulted with prior to the publication of Bulletins that reference their research

(c) That the UKBA analyse their own statistics and data on the treatment of failed asylum seekers

(d) Charter flights of failed Tamil asylum seekers be stopped. All deportation charter flights be suspended whilst a country guidance case is on-going.

(e) A review of communications between FCO and UKBA regarding asylum with a view to bettering liaison.

12. The Effectiveness of the UKBA Screening process. We ask that a separate visa category for witnesses of war crimes from Sri Lanka be established. We ask this in light of the following:

(a) The Sri Lankan government has demonstrably failed to provide justice to victims. These failings have been recognized by numerous INGOs, by human rights groups, and the United Nations. The Office of the High Commissioner for Human Rights published a report in February 2013 that was strongly critical of the Government of Sri Lanka (GoSL) in this regard. http://www.southasianrights.org/wp-content/uploads/2013/02/OHCHR-Report-on-Sri-Lanka-February-11–20132.pdf.

(b) There is evidence that far from pursuing justice the GoSL has committed crimes including torture against witnesses and those who call for accountability, in short all those who are considered by the State to be in opposition to it. We rely on TAG’s report ‘Witness Intimidation in Sri Lanka” and its cited sources as evidence of the ongoing risks to witnesses. These reports have been made available to the SSHD on or around 7th November 2011 in the context of the High court appeal K and SSHD [full name of claimant redacted for his safety], reference CO/9452/2011]. (Appendix B). Furthermore we rely upon TAG’s report ‘Returnees at Risk: Detention and Torture in Sri Lanka’, 16 September 2012, which has been made available to the SSHD in the Country Guidance Asylum case amongst other proceedings (Appendix C) and TAG’s report “Activist Intimidation: Surveillance and Intimidation of Tamil Diaspora Activists and their supporters”, March 2013 (Appendix A).

(c) There are a number of on-going legal proceedings against Sri Lankan State officials including:

(i) On January 28 2011 Manoharan, Lavan & Aiyathurai v Rajapaksa [case 1:11-CV-00235] was filed against the President of Sri Lanka, Rajapaksa, in the United States District Court for the District of Columbia in January 2011 by attorney Bruce Fein acting under instructions from the NGO Tamils Against Genocide. The complaint against Rajapaksa alleges that ‘the defendant’s Presidency has been earmarked by gross violations of internationally recognized human rights including war crimes, rape, torture, inhumane or degrading treatment and prolonged detention without charges. TAG is explicitly mandated to collect evidence and identify witnesses for this case. On 29 March 2013 the United States Court of Appeals for the District of Colombia Circuit found in accord with the District Court—that the defendant was entitled to head of state immunity—and therefore dismissed the plaintiff’s appeal. TAG US wish to proceed with this case and are seeking legal advice on options including further appeal.

(ii) In February 2009 TAG submitted a model indictment for Genocide against Sri Lankan Defense Secretary Gotabhaya Rajapaksa and General Sarath Fonseka to the United States Justice Department.

(iii) TAG has knowledge that at least one other western government is currently actively investigating War Crimes and Crimes Against Humanity in Sri Lanka with the objective of criminal prosecution(s) of perpetrators.

(iv) A number of governments and prominent INGOs support the call by the UN panel appointed by the Secretary General for an international investigation. In March 2013, the APPG-T put out a statement calling for an International Independent Investigation into Genocide, adding its institutional voice to that of the UN High Commissioner for Human Rights. The UN Panel recommendation is now the subject of a series of resolutions and monitoring at the UNHRC. In the likely case that the Sri Lankan government continue to frustrate justice and accountability, an International Independent Investigation will be set up, and evidence from witnesses obtained by TAG will be relevant to that investigation.

(v) Separately, with the objection of pursuing prosecutions, TAG is in the process of producing evidence packs and dossiers against individuals whom we allege have command responsibility for crimes committed in the final stages of the conflict, 2009.

(d) Given the intimidation of witnesses in Sri Lanka, on-going and anticipated lawsuits and evidence collection projects across the International Community, it is imperative, in order to even be in a position for justice to be done, that witnesses be protected, and their evidence thus preserved. Witnesses cannot safely engage in further communication with, for example, the United States Government or any other international prosecuting authority should they be returned to Sri Lanka.

(e) TAG has no way of knowing of the existence of all such witnesses some of whom are about to be returned. We invite the UKBA to proactively assist us in identifying witnesses to war crimes, crimes against humanity and genocide.

13. The Use of Country of Origin Information and Operational Guidance Notes in determining the outcome of asylum applicants: Comments on the production of and timing of release of Operational Guidance Notes and Bulletins.

(a) UKBA PolBulletin 1/2012 was released on 22 October 2012. The Bulletin made extensive mention of reports by TAG as well as those of Human Rights Watch and Freedom from Torture. TAG contacted the Treasury Solicitor’s Department since there were a number of significant errors in the Bulletin. On the 23 Oct 2012, David Becker, Country Specific Litigation Team, UKBA, wrote to TAG in order to inform that, further to TAG’s email correspondence, a number of amendments to the Bulletin had been made. (Appendix D). Nevertheless on the same day that the original Bulletin, with errors, was published, TSOL produced a Service for the attention of the Immigration and Asylum Courts that relies, inter alia, upon the Bulletin (Case Claim No CO/9942/2012). On the 23 October 2012 a charter flight took failed asylum seekers from the UK to Sri Lanka.

(b) We are concerned by the extent of UKBA’s access to the Courts, and its ability to submit unsolicited representations to the Judges. At the very least if this practice is to have any integrity, the information must be thoroughly researched. The presence of errors in the Bulletin means that any Judge who had considered the Treasury solicitor’s letter may have been influenced by erroneous material with the consequence that errors may have been made further down the line that lead to loss of life and liberty. Furthermore the Pol Bulletin and Treasury solicitor’s letters are released too later for the respective NGOs and legal practitioners to act on them.

(c) Given the emphasis on work by TAG, as well as FFT and HRW in the Bulletin, we recommend that TAG and others be informed of or preferably involved in the production of the report to insure there are no such errors. Indeed the unique nature and impact of asylum work render prior consultation especially desirable. The number who would need to be consulted are few—namely those organisations who produced the reports which the Bulletin referred to and rejected. Indeed the subsequent re-writing of the Bulletin is arguably more time consuming. We cannot think of an overriding public interest that would preclude such consultation or that could justify the lack of consultation to date.

14. The assessment of the credibility of women, the mentally ill, victims of torture and specific nationalities within the decision-making process and whether this is reflected in appeal outcomes. As part of TAG’s victim support function we provide, on a case-by-case basis, expert reports for asylum applications. In the first 3 months of 2013 we wrote more than 10 such reports. In the process of doing so we have had access to numerous UKBA reasons for refusal letters. There has been a disturbing trend in these letters to suggest that victims of torture may have inflicted their wounds upon themselves in order to improve their chances of securing asylum, and to dismiss the presence of scars in their evaluation of the asylum applicant’s case. Such suggestions are not evidence based and indeed fly in the face of the considerable background information that attests to the prevalence of torture in Sri Lanka post 2009. Such cynicism, it is assessed, is harmful to the well-being of already vulnerable asylum applicants, many of whom have not spoken out about their experiences and who, when they do so, are then faced with disbelief.

15. The prevalence of refused asylum seekers who are tortured upon return to their country of origin and how the UK Government can monitor this. On 6 February 2013, the Home Office in response to a freedom of information (FoI) request revealed that between May 2009 and September 2012, 15 failed asylum seekers forcibly returned to Sri Lankan by the UK Border Agency managed to escape back to Britain whereupon they won refugee status after giving evidence that they were tortured in Sri Lanka. (The FoI request response is available at http://www.freedomfromtorture.org/sites/default/files/documents/FOI%20Response.pdf. Ex E). It was only in response to a FoI application that the data was analysed. We submit that the UKBA ought to regularly analyse its own data or be more proactive in making that information available to NGOs and the judiciary. The British High Commission does not monitor failed asylum seekers beyond the airport. Given this limitation, the least that can be done is for the UKBA to analyse the information that is readily available to it.

16. Miscellaneous:

(a) Scheduled Charter flights and Country Guidance proceedings.

(i) We oppose scheduled charter flights altogether in the case of Sri Lanka. The effect of such flights is to assist the GoSL in identifying returnees who have or are perceived to have opposed the state, and are thus more likely to be persecuted as a result. The background evidence indicates that asylum seekers are considered by the GoSL to be bringing the state into disrepute by the very act of seeking asylum from it. For example, the Bishop of Mannar, December 2012, called for an end to deportations back to the North East, http://www.tamilguardian.com/article.asp?articleid=6484. He stated in his letter that those who were returned to the island were considered to be “traitors”.

(ii) On the 28 February 2013 there was a scheduled charter flight to Sri Lanka of failed asylum seekers. On 27 February 2013 Mr Justice Wilkie and Upper Tribunal Immigration Judge Gleeson ordered the suspension of the deportation of all failed Tamil asylum seekers. The cases concerned the sole issue of whether removal should be suspended for some or all of those on the charter flight at a time when the courts were considering detailed evidence on the safety of returned failed asylum seekers in an upcoming Country Guidance case.

(iii) We suggest that, in general, when a Country Guidance case is on-going in which the risks to applicants are being re-assessed, the default setting should be that the return of failed asylum seekers is suspended. It should be the exception to the rule for deportations to continue, not the rule.

(b) Inter government departmental communications:

(i) The BBC’s Charles Haviland interviewed Parliamentary Under-Secretary of State for Foreign & Commonwealth Affairs Minister Alistair Burt on 1st February 2013, during an official visit to Sri Lanka. In the latter half of the interview on the issue of the deportation of failed asylum seekers, Charles Haviland, noting that a number of international organisations say they have clear testimony that some of those returned to Sri Lanka have then been tortured, questioned “Is it really right that Britain should be sending them back?” The Minister answered in no uncertain terms, “We do not have the direct evidence of which you speak. We are aware of the allegations and we’ve sought to get confirmation....So far we have not had those allegations substantiated....I look into this extremely carefully, I have just not seen this”. http://www.tamilsagainstgenocide.org/read.aspx?storyid=91, (Appendix F).

(ii) Since the Minister’s confident assertions, the Home Office in response to a freedom of information (FoI) request revealed that between May 2009 and September 2012, 15 failed asylum seekers forcibly returned to Sri Lankan by the UK Border Agency managed to escape back to Britain whereupon they won refugee status after giving evidence that they were tortured in Sri Lanka. The FoI response has merely made open information and knowledge of which the UKBA was already in possession. Either UKBA had analysed its own data or it had not. If it had, why had it not shared its findings with Mr Burt, or for that matter with the judiciary? If it had not, why not? (The FoI request response is at http://www.freedomfromtorture.org/sites/default/files/documents/FOI%20Response.pdf. Appendix E)

APPENDICES589

Title

A

“Activist Intimidation: Surveillance and Intimidation of Tamil Diaspora activists and their supporters” 13 March 2013

B

“Witness Intimidation in Sri Lanka. An Overview of Intimidation and Attacks on Witnesses and Victims of Atrocities” 2011

C

“Returnees at Risk: Detention and Torture in Sri Lanka” September 2012

D

Letter to TAG from David Becker, Country Specific Litigation Team, 23 October 2012

E

Freedom of Information Act reply 25159, 6 February 2013,

F

TAG Press release, 15 February 2013, “Alistair Burt Interview”

Tamils Against Genocide

April 2013

589 Not printed

Prepared 11th October 2013