Selvaratnam v Secretary of State for the Home Department

Updated country evidence on the general position of failed asylum seekers must be applied to the claimant’s individual circumstances. General improvements in a country’s human-rights position do not answer whether a person is still at real risk because the authorities have a particular and recent interest in them.

Where accepted findings show recent detention, torture, imputed association with a proscribed organisation and escape from custody, evidence concerning the treatment of wanted returnees must be addressed. A likelihood of detention, coupled with an accepted continuing risk of torture in detention, may establish entitlement to protection under the Refugee Convention.

The appellant, a Sri Lankan national, claimed asylum after escaping detention in Sri Lanka and travelling clandestinely to the United Kingdom. The adjudicator accepted his account of two arrests, torture, perceived involvement with the LTTE, a compelled confession, and escape from custody. The adjudicator found that he would be detained on return and face a real risk of torture.

The Immigration Appeal Tribunal allowed the Secretary of State’s appeal, relying on later country material which indicated that returnees were no longer generally at risk. The appellant appealed to the Court of Appeal. The central issue was whether the Tribunal had properly applied the updated country evidence to his particular circumstances.

Decision

The Court of Appeal unanimously allowed the appellant’s appeal, set aside the Immigration Appeal Tribunal’s determination, and restored the adjudicator’s orders.

1. Buxton LJ held that the Tribunal had asked the wrong question. It treated the case principally as one concerning the general safety of failed asylum seekers returning to Sri Lanka. The later country evidence addressed that general category, including persons whose scars might suggest involvement in the conflict. It did not resolve the risk facing a person with the appellant’s particular history.

2. The Tribunal was required to relate the new country material to the adjudicator’s accepted findings. Those findings showed that the appellant had recently been detained and tortured because the authorities associated him with the LTTE, had been compelled to sign documents, and had escaped unlawfully from custody. The country material itself indicated that a wanted returnee could be stopped by the CID.

3. On those facts, the appellant was likely to remain of interest to the Sri Lankan authorities and to be detained. The Secretary of State properly conceded that a detainee continued to face a risk of torture. Detention therefore created a sufficient risk of persecution to engage the Refugee Convention.

4. Peter Gibson LJ agreed and added that the appellant’s recent arrest, apparent confession and escape distinguished him from the generality of returnees. The general improvement in Sri Lanka did not displace the substantial risk for persons perceived by the authorities to have terrorist connections. May LJ agreed with Buxton LJ’s reasons.

The appeal was allowed, the adjudicator’s determination was restored, and the appellant received a detailed assessment of costs.

• Court of Appeal (Civil Division) — Allowed the appellant’s appeal and restored the adjudicator’s orders.
• Immigration Appeal Tribunal — Allowed the Secretary of State’s appeal, concluding from updated country material that the appellant was not an exceptional returnee at risk.
• Adjudicator — Allowed the asylum appeal after accepting that the appellant would likely be detained on return and face a real risk of torture.