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UK Courts refuse stay on deportation, TAG appeals to European Court

[TamilNet, Friday, 16 December 2011 08:43 No Comment]

Ruling on the case filed at the Queens Bench Administrative Court by Tamils Against Genocide (TAG-UK) Tuesday challenging the British deportation policy on the grounds that the policy has not been reviewed in light of recent evidence that asylum returnees to Sri Lanka face imminent torture at the hands of Sri Lanka Government, Mr Justice Mitting refused stay and refused permission for judicial review of deportation policy reasoning that the claim can only succeed on "individualized applications," and not on the grounds of a challenge to the failure to review policy, legal sources in London said. The Appeals Court agreed with the lower court decision. TAG said that the case is being appealed to the European Court of Human Rights (ECHR), which has jurisdiction over such asylum cases.

pdf: Memorandum to the Appeals Court

"The sole reason for refusal of permission was on the ground that a claim can only succeed on the grounds of individualized applications based on profile and not on the grounds of a challenge to the failure to review policy in the light of credible allegations of torture of failed asylum seekers on return," Lower Court Judge Mitting said in the order.

The lower court did not provide a written opinion, and Judge Mitting made no comment in respect of the evidence submittied, TAG-UK spokesperson said.

pdf: Appeals Court Decision

Lord Justice Maurice Kay of the Civil Division of the British Court of Appeal concurred with the lower court decision reasoning "this application (appeal) relates to the removal to Sri Lanka by charter flight in less than two hours time. I have already refused two individual applications which, apar from anything else, seemed to me to lack underlying merit….It is the reason why the generic applications to him and to his Court fail."

Referring to Justice Mitting’s judgment (see para 48 in the Memorandum of Appeal), TAG’s attorneys pointed out that the court has erred in point of law, and cited a 2005 decision by Collins J in a case involving an asylum returnee to Zimbabwe that "further proceedings in all the Judicial Review applications should await the determination of a suitable appeal by this Tribunal. The reason why that arrangement was so obviously right is that the Tribunal can and must consider and determine the underlying facts in a way that is not open to the High Court in Judicial Review proceedings."

Noting also that UK Courts have considered risks to failed asylum seekers before, the legal brief to the Appeals Court (para 49) pointed out a year-2000 case of a Kurdish asylum seeker from Turkey, where appeals court’s Lord Justice Schiemann stated, inter alia, "any young male Turkish Kurd draft evader who is returned to Turkey as a failed asylum seeker without travel documents, will, by virtue of those facts alone, face a real risk of being subjected on return to Article 3 ill-treatment. Although precise statistics are not available, it seems clear that many thousands of such claims for exceptional leave will turn upon its outcome; the 60-odd challenges stayed in the Crown Office List pending its resolution represent but the tip of an iceberg."

UK spokesperson for Tamils Against Genocide, said an appeal has been filed at the European Court of Human Rights.

ECHR, established in 1959 in Strasbourg France, rules on individual or State applications alleging violations of the civil and political rights set out in the European Convention on Human Rights. Since 1998 it has sat as a full-time court and individuals can apply to it directly.

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