A few days ago, on 17 July 2008, the European Court of Human Rights handed down a rather hopeful judgement in the case of NA. v. the United Kingdom where it held that the applicant’s expulsion to Sri Lanka would be a violation of Article 3 of the ECHR. NA came to the UK clandestinely in 1999 and sought asylum following the numerous occasions of ill-treatment that he experienced when arrested by the army in Sri Lanka due to allegations of involvement with the Tigers.
After the applicant’s successive applications for judicial review of the decision to return him to Sri Lanka failed, new removal directions were issued for 25 June 2007. On that date, following the applicant’s request, the President of the competent Chamber of the European Court of Human Rights decided to apply Rule 39 of the Rules of Court (interim measures) and indicated to the UK Government that the applicant should not be expelled until further notice.
The European judges conducted a comprehensive survey not only of the relevant domestic law but also of the procedural steps and practice. More so, they present a rather exceptionally favourable example of what the UK Asylum and Immigration Tribunal refers to as country guidance determinations/decisions, which rarely base their decisions on UNHCR Position papers or sufficiently updated extensive arrays of empirical data. It conducted a thorough and wide-ranging survey of: UK government reports, relevant EU legal frameworks, letters from the British High Commissioner in Colombo, USA State Department Report, elusions to Canadian practice, NGO reports and much much more.
In championing its persistent endorsement of the absolute prohibition of torture, inhuman or degrading treatment of any kind, the Court upheld that although as of general practice it “would adopt such an approach only in the most extreme cases of general violence, where there was a real risk of ill-treatment simply by virtue of an individual being exposed to such violence on return,” (para 115 of the judgement) in other “exceptional cases “where an applicant alleges that he or she is a member of a group systematically exposed to a practice of ill-treatment, the Court has considered that the protection of Article 3 of the Convention enters into play when the applicant establishes that there are serious reasons to believe in the existence of the practice in question and his or her membership of the group concerned” (para 116).
Less fortunately, considering the limited precedent applying the newer community legislation in the field of asylum law, the Refugee Qualification Directive (2004/83/EC) that was to be implemented by 10 October 2006, this judgement, referring to the parties who based there submissions on this legislation’s provisions, does very little to advocate for the much needed intersection and interplay between human rights and asylum and immigration laws by concluding that “the applicant’s submissions on the basis of Directive 2004/83/EC are outside the scope of its examination of the present application” (para 107).
Its commendable assessment of the “objective information” and the “risk factors” to Tamils returning to Sri Lanka together with all the case-specific personal circumstances brings it to the conclusion that
“[t]here is a real risk that the authorities at Colombo airport would be able to access the records relating to the applicant’s detention and if they did so, when taken cumulatively with the other risk factors he has relied upon, it is likely the applicant would be detained and strip-searched…lead[ing] to the discovery of his scars…[T]hese are substantial grounds for finding that the applicant would be of interest to the Sri Lankan authorities… In those circumstances, the Court finds that at the present time there would be a violation of Article 3 if the applicant were to be returned” (para 147).
This judgement has come against all odds considering the UK’s renowned reluctance to accept many Tamil asylum cases and the Home Office’s general practice of doubting the credibility of asylum seekers who are unable to fulfill the exorbitantly high evidential threshold to substantiate their claims. This lead judgement, which applies to a considerable number of requests made by Tamils for the issuance of interim measures (under Rule 39 of the European Court Rules) by the ECHR, provides a haven for many analogously disadvantaged Tamil failed asylum seekers that the Home Office will be looking to return to Sri Lanka.
This is indeed a great example of not only the power of the European Union’s institutional platform for the the development of a common European asylum policy and legal framework, but also the ECHR’s increasingly growing presence and influence on member states’ decisions and policy-shaping processes. This is to say that precisely this approach that effectuates a more vigorous encroachment practice could some day drive Greater Europe into a true human rights era.