Scores of Sri Lankans, due to have been deported from the UK on a government charter flight on Thursday afternoon, have had their removal orders overturned by high court judges.
About 40 failed asylum-seekers – most of whom are thought to be Tamils – were granted dramatic last-minute stays.
Immigration lawyers ascribe the judges’ apparent change of heart to serious concerns over Sri Lanka‘s dismal human rights record and the risk that those forcibly returned face arbitrary arrest and torture. The judgements affected around half of the estimated 70 to 80 Tamils due to have been sent back to Sri Lanka on flight PVT030 from Stansted.
Two senior barristers with the London-based Renaissance Chambers, which specialises in human rights and immigration law, say the judgements are very unusual. Nishan Paramjorthy and Shivani Jegarajah say they represent a judicial shot across the bows of the British government.
"Judicial attitudes have changed," said Mr Paramjorthy. "Previously hard-line judges are granting stays, mostly on grounds of risk upon return."
Channel 4 News has obtained a copy of one judgement, by the Honourable Mr Justice Eady, which cites as the reason for his granting a stay of removal: "The recent Human Rights Watch report, dated 29.05.2012 suggests that there may be new evidence relevant to the risk of ill treatment."
We are unable to publish the document because the proceedings are ongoing and live.
The High Court judge orders "that the secretary of state be restrained from removing the applicant from this jurisdiction." Today’s flight was the fifth British government charter flight to Sri Lanka since June last year. The flights are shrouded in secrecy and the UK Border Agency has a policy of not commenting on them.
Human Rights Watch report
The Human Rights Watch report in question called on the government to suspend the planned deportations in light of 13 cases it had documented of failed Tamil asylum seekers being tortured by the security forces on return to Sri Lanka, most recently in February this year.
Some, but not all of the returnees were deported from the UK. All those who were deported from the UK are now back in this country and have reapplied for asylum here. The Sri Lankan President, Mahinda Rajapaksa – who is accused of failing to hold alleged war criminals to account – is expected to arrive in London shortly, to attend the Queen’s diamond jubilee celebrations.
The Justice Eady’s judgement has sparked excitement amongst lawyers who interpret it as having wider application. "It’s not a blanket order," one barrister told Channel 4 News, "but we believe it’s applicable to each and every Sri Lankan Tamil who has ever been involved in politics or has past associations with the [now defeated] Tamil Tigers."
The orders to prevent the removals reportedly resulted in high drama prior to the plane’s departure. One barrister, who wanted to remain anonymous, told Channel 4 News: "One of my clients was on the verge of being put on the bus to the airport. He and another failed asylum-seeker were taken off the bus. Another of my clients," he said, "was already at the airport and was taken off the plane."
A dramatic development
On learning what had happened, David Mepham, the UK director of Human Rights Watch said: "This is a very dramatic development. It is incredibly welcome that a High Court judge has recognised the serious risk facing failed Tamil asylum-seekers.
"This should be a wakeup call for the British government. Its existing policy towards Sri Lanka is fundamentally flawed and needs to be seriously re-thought."
There has been a steady stream of damning reports from international human rights groups as well the United Nations, the US State Department and, most recently, the British government itself. The Foreign and Commonwealth Office report, published last month, says human rights in Sri Lanka was of "serious concern".
It cited attacks on journalists and human rights defenders, disappearances and abductions and quoted recent submissions to the UN Convention Against Torture alleging the widespread use of torture in Sri Lanka. Channel 4 News has documented recent cases of torture, corroborated by medical and legal reports.
Failure to prosecute
The country has failed to prosecute commanders guilty of misconduct during the final months of the civil war in 2009, when an estimated 40,000 civilians were killed, according to an investigation ordered by the United Nations Secretary General.
Karim Assaad, a senior London-based human rights lawyer, who has had many Sri Lankan Tamil clients, said: "How many bodies will it take for the Home Office to comment? It appears that in a remarkable decision, the judiciary has thrown down the gauntlet to the British government."
In response to Thursday’s high court judgement the Home Office said in a statement given to Channel 4 News:
"The UK has a proud record of offering sanctuary to those who need it, but people who do not have a genuine need for our protection must return to their home country.