EHRM, 17-07-2008, nr. 25904/07

In the above country guidance determination promulgated on 6 August 2007, the AIT considered the case of a Tamil, LP, from Jaffna in the north of Sri Lanka. He had experienced problems with the LTTE and the Sri Lankan authorities and fled Sri Lanka on 29 December 1999 but had been refused asylum in the United Kingdom by the Secretary of State. Since the case had been identified as a country guidance determination, the AIT heard evidence from a number of experts on the situation in Sri Lanka and the treatment of Tamils there. It also considered the UNCHR Position Paper (see paragraphs 65–68 below) and considered evidence on the Sri Lankan authorities' treatment of returned failed asylum seekers at Colombo airport, including a series of letters from the British High Commission in Colombo and a report of the Canadian Immigration and Refugee Board (see paragraphs 60–63 and 74 below). In dismissing LP's appeal on asylum grounds but allowing it on the basis of Article 3 of the Convention, the AIT gave the following guidance in the headnote to its determination:

In its consideration of the expert evidence before it, the AIT heard argument on the correct approach to the UNHCR Position Paper (see paragraphs 65 – 68 below). It stated that:

The AIT then considered each of the twelve risk factors that had been identified by the appellant, LP, and which it had summarised in its headnote. In respect of Tamil ethnicity, the AIT recalled that Tamils comprised more than 10 percent of the population of Colombo, which called for caution when assessing risk in Sri Lanka, especially Colombo. There was a need for knowledge of where applicants came from in Sri Lanka and their involvement or lack of it with Tamil organisations, whether voluntary, involuntary or otherwise. It found that there were different risk profiles for sub-groups of those with Tamil ethnicity (Sri Lankan Tamils coming from the north or east compared with ‘Indian’, ‘Plantation’ or ‘Hill’ Tamils). Age and gender had to be taken into account and young male Tamils in Sri Lanka, particularly in Colombo, were at a relatively higher level of risk. There was a higher propensity on the part of the Sri Lanka authorities to target young men and women from the north and the east in a period of virtual civil war.

In respect of a previous record as a suspected or actual LTTE member or supporter, it was of vital importance to establish an applicant's profile and the credibility of his background in some depth. If he or she was not credible as to his claim to come from the north or east, which left a situation where he could be a Tamil from Colombo with little or no involvement with the LTTE, there could be little risk.

A previous criminal record and/or arrest warrant was, in the AIT's view, a significant factor that needed to be taken into account in the assessment of the totality of the risk but did not mean, of itself, that the applicant had a well-founded fear of persecution or other significant harm on return to Sri Lanka for that reason alone. The issue was to establish the credibility of the criminal record, or an arrest warrant, and decide whether it was reasonably likely to exist in respect of the applicant.

Those who had jumped bail or absconded from police custody, the AIT noted:

For those who had not been brought to court and had possibly been released from detention after payment of a bribe, much would depend on the evidence relating to the formality of the detention. If the detention was informal and there were no records of a bribe, the risk level would be likely to be below that of a real risk. On this risk factor, the AIT concluded:

When an applicant had signed a confession, this could be a significant risk factor and the AIT noted expert evidence to the effect that many Tamils were released after signing statements made in Sinhala that they often did not understand. The factor had to be considered in the totality of the risk. Equally, when an applicant had refused requests by the security services to become an informer against the LTTE, there was a higher risk that they would be assumed to be a collaborator of the LTTE but such evidence had to be taken into account with the totality of the evidence and merely establishing that an applicant had refused to become an informer would not be in every case the basis for a valid asylum claim on its own.

On the risk arising from the presence of scarring on an applicant, the AIT stated:

In respect of the risk arising from return from London or another centre of LTTE activity or fund-raising, the AIT heard evidence from the Metropolitan Police on LTTE activities and fund-raising in London. It concluded that this factor was highly case-specific and any applicant would need to show the extent to which the Sri Lankan High Commission in the United Kingdom was aware of his activities and was thus likely to have passed the information on to Colombo when the applicant was being deported or removed.

Illegal departure from Sri Lanka did not of necessity establish a well founded fear of persecution or serious harm, although in the ‘heightened level of insecurity’ in Sri Lanka it would add to the risk profile. Similarly, given the number of ‘cordon and search’ operations by the Sri Lankan Government, the lack of a valid identity card could contribute towards an increased level of risk. In the AIT's view, it had to be coupled with other risk factors for those of Tamil ethnicity but it was a contributing factor. An applicant would need to show why he would be at continuing risk and that he could not reasonably be expected to obtain a new identity card.

In respect of the risk factor of having made an asylum claim abroad, the AIT relied, inter alia, on a letter dated 24 August 2006 from the British High Commission in Colombo (see also paragraphs 60–63 below) which had stated that lists of failed asylum seekers could form part of search operations in Colombo (at paragraphs 65 and 221 of the determination). The AIT found that it was a reasonable inference that application forms for replacement passports and travel documents might alert the Sri Lankan High Commission in London and that information could be passed on. However, the AIT did not consider having made a failed asylum claim abroad to be an issue that alone would place a returnee at real risk on return. It would be a contributing factor that would need other, perhaps more compelling factors before a real risk could be established.

The AIT considered that the fact of having relatives in the LTTE was a logical factor but needed to be taking into account with the totality of other evidence and the profile of other family members. On its own, without established and credible evidence of the details of the other family members and their known role or involvement with the LTTE, it would be of limited weight. When assessing those who have relatives who were members of the LTTE, it was not only important to consider the relationship, and the involvement of the relative but whether, and to what extent, knowledge of the relative's activities were likely to have been known to the security forces in Sri Lanka. This would vary depending on the relative's profile and whether or not he or she had been previously detained. The question of how the authorities would know that an individual was so related might also be of concern.

In its conclusion on the risk profile for Tamils, the AIT stated:

In addressing the general situation in Sri Lanka at the time and the possible of relocation of Tamils from the north or east to Colombo, the AIT stated:

Having reiterated that the list of factors was ‘not a checklist nor is it intended to be exhaustive’ and that the factors should be considered individually and cumulatively (at paragraph 238 of the determination), the Tribunal again summarised the factors it had considered. It had heard evidence on procedures at Colombo airport, including the series of letters from the British High Commission in Colombo (see paragraphs 60–63 below), and the counsel for the Secretary of State had acknowledged there was no dispute that records were kept at the airport and that interviews were conducted there (at paragraph 159 of the determination). In its summary of its conclusions, the AIT therefore added:

On the facts of LP's case, the AIT noted that his credibility had been accepted, in particular that he was a ‘bail-jumper’ from court-directed bail in Colombo and that on return to Colombo airport he would have been at real risk of being investigated. That investigation by the Sri Lankan authorities would lead, in LP's particular circumstances, to the real risk of his being seriously maltreated while in detention and thus the AIT allowed his appeal on Article 3 grounds.

In its previous determination in PT (Risk —bribery — release) Sri Lanka CG[2002] UKIAT 03444, the AIT had held first that paying a bribe did not itself amount to an assisted escape from custody which would make the applicant of interest to the authorities. Second, it had held that scarring was a factor that should not be assessed in isolation but in light of the general security situation and the processing of returnees at Colombo airport. The AIT in LP confirmed both these rulings.

In PS the Immigration Appeal Tribunal, allowed an appeal by the Secretary of State against the decision of the Adjudicator who had found that the respondent, a Sri Lankan Tamil from western Sri Lanka, would be at risk from the LTTE if returned and that there would not be sufficient protection by the Sri Lankan authorities. He and his cousin had been coerced by the LTTE into transporting goods by sea for them and arrested and interrogated under torture by the Sri Lankan navy. He had told them where the goods were and was released after payment of a bribe. The LTTE sought the applicant and his cousin and killed his cousin. The respondent was again arrested on suspicion of LTTE involvement and again released after paying a bribe, at which point he fled to the United Kingdom. It was accepted on appeal that given the ceasefire in place at the material time, there was no risk to the respondent from the Sri Lankan authorities. As to the risk to him from the LTTE and the sufficiency of protection offered by the Sri Lankan authorities, IAT found that he could safely and reasonably relocate from his home area of Puttalam, western Sri Lanka to Colombo. The IAT stated:

In this country guidance determination, the AIT considered, inter alia, the correct approach to reports by the UNHCR. It observed:

Operational guidance notes (OGN) are prepared by the Border and Immigration Agency of the Home Office. They provide a brief summary of the general, political and human rights situation in the country and describe common types of claim. They aim to provide clear guidance on whether the main types of claim are likely to justify the grant of asylum, humanitarian protection or discretionary leave.

The OGN on Sri Lanka of 5 November 2007 (which updated and replaced the previous note of 9 March 2007, the conclusions of which were virtually identical) contained the following conclusions on the main kinds of asylum, human rights and humanitarian protection claims made by those entitled to reside in Sri Lanka:

The OGN also found that with the introduction of the Emergency Regulations in August 2005, round ups and arrests of Tamils in ‘cordon and search operations’ had taken place. Citing a report of the International Committee of the Red Cross (ICRC), it stated that most of those detained, generally young Tamil males, were taken into custody because they were unable to produce identification or explain the reason for being in a particular area. It also quoted the website ‘TamilNet’ which had reported a number of large scale arrests between May and July 2007 of Tamil civilians in Wellawatte and Colombo city who were taken into custody on account of failure to prove identity or provide reasons for their stay in the location. Finally, the OGN stated that according to a letter dated 11 September 2007 from the British High Commission in Colombo, the operations did appear to target those in casual employment or with temporary accommodation, but whilst a proportion of those detained did end up in longer term detention, most were released quickly (at a paragraph 3.6.11 of the OGN).

The March 2008 COI Report (at paragraphs 32.09 – 32.22), set out a number of extracts from a series of letters from the British High Commission in Colombo, which addressed the treatment of failed asylum seekers. At paragraph 32.09, the COI Report included an excerpt from a High Commission letter of 25 January 2008, which noted:

The same paragraph of the COI Report noted that in a letter of 24 August 2006, the High Commission had previously reported:

According to the COI Report (at paragraphs 32.12 and 32.13), in a letter dated 26 September 2005 the High Commission stated:

Paragraphs 32.14 and 32.15 of the COI report then quote the High Commission as stating in its letter of 24 August 2006 that:

Finally, at paragraphs 32.20–32.22 the COI Report contained excerpts from the letter of 25 January 2008 which read as follows:

According to information provided to the Court by the Government, of above thirty-two returns, twenty-two were cancelled for a number of reasons such as judicial review proceedings being lodged, injunctions being granted by the High Court and this Court making indications under Rule 39 of the Rules of Court. Eight of the returnees were successfully met outside the airport by IOM. In the remaining two cases, removals were made but the individuals concerned did not make themselves known to the IOM officer on arrival in Colombo. The Government had established that one of the two was in the Netherlands and they continued to make enquiries into the whereabouts of the other individual concerned.

On 22 December 2006, the United Nations High Commissioner for Refugees published the above paper, observing that there had been several major developments in the country which fundamentally affected the international protection needs of individuals from Sri Lanka who sought, or who had sought, asylum abroad. After surveying the escalation in fighting between Government forces and the LTTE and its impact on the civilian population, the paper turned to the human rights situation. Tamils from the north and east were at risk of targeted violations of their human rights from all parties to the armed conflict, including harassment, intimidation, arrest, detention, torture, abduction and killing at the hands of government forces, the LTTE and paramilitary or armed groups. Where an individual sought to escape from the LTTE, even if they reached government-controlled areas, this did not necessarily mean that he or she would be able to secure the protection of the authorities given the LTTE's capacity to track down and target its opponents throughout the country. The position paper also considered the human rights situation for Tamils in Colombo and stated:

The paper also noted that Muslims from the east were also particularly vulnerable to human rights abuses from the parties to the conflict and that Sinhalese from the north and east were vulnerable to the generalised violence there. For the latter, there was protection from generalised violence in government-controlled areas but no protection from the LTTE, if they were targeted by it.

UNHCR recommended that all asylum claims of Tamils from the north or east should be favourably considered. Where individual acts of harassment did not in and of themselves constitute persecution, taken together they could cumulatively amount to a serious violation of human rights and therefore be persecutory. Where an individual did not fulfil the refugee criteria under the United Nations Convention Relating to the Status of Refugees of 1951, a complementary form of protection was to be granted. Tamils from Colombo were to be recognised as refugees if subjected to targeted violations of human rights by the LTTE, the authorities or paramilitary groups. Again, where individual acts of harassment did not in and of themselves constitute persecution, taken together they could cumulatively amount to a serious violation of human rights and therefore be persecutory. A similar recommendation was made for Muslims. For Sinhalese, those who were targets of persecution from the LTTE or other non-state agents should be accorded recognition as refugees.

For those asylum seekers from Sri Lanka whose claims had previously been examined and had been found not to be in need of international protection, the Position Paper recommended a review of their claims in light of the new circumstances it had described.

After her visit to Sri Lanka in October 2007, the United Nations High Commissioner for Human Rights, Louise Arbour, issued a press statement on 13 October 2007 in which she noted:

After his visit to Sri Lanka on 1–8 October 2007, the United Nations Special Rapporteur on Torture issued a press release (dated 29 October 2007) in which he concluded:

In November 2006, the President of Sri Lanka appointed a Commission of Inquiry to investigate and inquire into sixteen incidents of alleged serious violations of human rights, including abductions, disappearances and extra-judicial killings. The President subsequently invited eleven eminent persons to form the Independent International Group of Eminent Persons (‘the IIGEP’) to observe the Commission's work and to comment on the transparency of its investigations and inquiries and their conformity with international norms and standards. By a public statement released on 6 March 2008, the IIGEP announced its decision to terminate its operation in Sri Lanka, concluding that the proceedings had fallen far short of the transparency and compliance with basic international norms and standards pertaining to investigations and inquiries.

In its 2007 Annual Report (‘The State of the World's Human Rights’), Amnesty International noted that in 2006 the human rights situation in Sri Lanka had deteriorated dramatically. Unlawful killings, recruitment of child soldiers, abductions, enforced disappearances and other human rights violations and war crimes had increased. Civilians had been attacked by both sides as fighting escalated between the Sri Lankan Government and the LTTE. Hundreds of civilians had been killed and injured and more than 215,000 people displaced by the end of 2006. Homes, schools and places of worship had been destroyed. Although both sides maintained they were adhering to the ceasefire agreement, by mid-2006 it had in effect been abandoned. A pattern of enforced disappearances in the north and east re-emerged. There were reports of torture in police custody; perpetrators continued to benefit from impunity.

In its 2008 Annual Report of the same title, Amnesty International further noted that ‘2007 was characterized by impunity for violations of international human rights and humanitarian law’. It stated that ‘soaring human rights abuses’ included hundreds of enforced disappearances, unlawful killings of humanitarian workers, arbitrary arrests and torture. The report also stated that the Sri Lankan police had conducted mass arrests of more than 1,000 Tamils, allegedly in response to the suicide bombings carried out in Colombo on 28 November 2007. The arrests said to have been made on arbitrary and discriminatory grounds using sweeping powers granted by the Emergency Regulations. The report also quoted unnamed reports as stating that ‘Tamils were bundled in bus loads and taken for interrogation’. The report further alleged that more than four hundred of those arrested, including fifty women, were taken to the Boosa Camp near Galle and held in poor conditions of detention.

In a report of 20 February 2008, entitled ‘Sri Lanka's Return to War: Limiting the Damage, Asia Report No. 146’, the International Crisis Group commented on the rising ethnic tensions in Sri Lanka since the collapse of the ceasefire and in particular observed:

The report also observed that violations of civil and political rights were widespread, with the majority and worst in the north and east of the country. There were daily occurrences of political killings and disappearances. Both sides were responsible but additionally on the government side there appeared to be no prosecutions for human rights violations and an unwillingness on the part of the police to investigate killings, disappearances and abductions. Other government institutions were ‘equally ineffective’.

The Medical Foundation for the Care of Victims of Torture is a United Kingdom registered charity which provides medical and other rehabilitative support for victims of torture. In a 2007 report, submitted by the Government as part of their observations in the present case, and entitled ‘Torture once again rampant in the Sri Lanka conflict’, the Foundation summarised the work it had done with Sri Lankan clients. The report stated that the overwhelming majority of Sri Lankans seen by the Foundation were Tamil and the majority of them were young males. The report stated that its findings ‘challenged the UK Government's readiness to return unsuccessful asylum applications to Sri Lanka where they might face further abuse’.

On 19 August 2007, the British Broadcasting Corporation's Sinhala website quoted Amnesty International as stating that three Tamil men had been held incommunicado in Colombo after having been returned there from Thailand. A Sri Lankan police spokesman was also quoted as stating that the men had been detained on immigration charges but refuted the allegation that they were being held incommunicado. Amnesty International also stated that the applications for political asylum in Thailand by the three men were refused by UNHCR. The story was recorded in the March 2008 COI Report at paragraph 8.16 and at paragraph 8.15 of the previous, November 2007 version of the same report.

From a press release available on the official website of the Government of Sri Lanka, the Chief Government Whip, Jeyaraj Fernandopulle, gave the following information at a press briefing on 4 December 2007. The Government had released 2,352 persons out of a total of 2,554 persons taken into custody during search operations conducted the previous weekend. 1,959 had been released on the day of arrest and another 393 were released following identification. The remaining 202 persons had been remanded or kept under detention orders.

The applicant relied on the AIT determination in LP, the UNHCR Position Paper and the reports by Amnesty International and Human Rights Watch (see paragraphs 30–46, 65–68, 76 and 78–79 above), as evidence of a general decline in the human rights situation in Sri Lanka. This demonstrated that the Court would need to reassess its findings in Venkadajalasarma v. the Netherlands, no. 58510/00 and Thampibillai v. the Netherlands, no. 61350/00, judgments of 17 February 2004, where it had found that, at the time, the considerable improvement in the security situation in Sri Lanka meant the return of two Tamils who had provided low-level support to the LTTE would not give rise to a violation of Article 3. In particular, the UNHCR Position Paper, in contrast to the Home Office Operational Guidance Note of 9 March 2007, suggested a much broader risk to Tamils than simply a risk to high profile Tamils. It was also not possible for the Government to rely on the AIT's determination in PS on the sufficiency of protection from the LTTE in Colombo since the risk to the applicant also came from the Sri Lankan authorities.

The applicant relied on the AIT's determination in LP and identified nine of the twelve risk factors set out in that determination which applied to him and which, he argued, increased the risk of harm to him at the hands of the Sri Lankan authorities. First, he was a young male Tamil from the north-east of the country and thus clearly at a higher risk of both persecution from the Sri Lankan authorities and forced recruitment by the LTTE than many ethnic Tamils. The LTTE had already tried twice to recruit him. Second, he had a previous record as a suspected LTTE member and had been arrested and ill-treated on six occasions because of this suspicion. The fact that he had been photographed and his fingerprints taken meant there was a record of his detention. Third, and on the same grounds, the risk factor of a previous criminal record or arrest warrant also applied to him. Fourth, after each detention the applicant was released without charge but during his last detention his father secured his release by signing a suspicious document indicating that his release was abnormal and akin to those who were at greater risk because they had jumped bail or escaped from custody. Fifth, while he was not aware of the content of the document his father had signed, when considered with the taking of his photograph and fingerprints, this placed him in the same category as someone who had signed a confession or similar document. Against the background of the current situation in Sri Lanka, it was reasonable to assume that the document, whatever its content, could be used against him on his return. Sixth, the scars he bore from his ill-treatment were clearly relevant, though he observed that the LP determination indicated that this was not determinative. Seventh, in respect of his return from London, he did not claim to have been fund-raising for the LTTE or that the Sri Lankan High Commission was aware of his involvement with the LTTE so his return from London would not be sufficient. However, since suspicion fell on those previously known to the authorities and returned from London, this factor contributed cumulatively to the risk he would face if returned. The same considerations applied to the eighth factor he identified, having made an asylum claim abroad. The ninth and final factor, having relatives in the LTTE, was of particular significance to the applicant given his brother's associations with the LTTE and the LTTE's suspicion that his father had informed on them to the army.

Relying further on the UNHCR Position Paper, the applicant considered that in respect of the risk to him from the LTTE, there was no internal flight alternative available to him since he was also at risk from the Sri Lankan authorities in Government-controlled areas. In Salah Sheekh, cited above (§ 148), the Court had accepted the general statements made by the UNHCR on the situation in the ‘relatively unsafe’ areas of Somalia in so far as members of the Ashraf minority were concerned and the absence of any internal flight alternative. He argued that in Sultani v. France, no. 45223/05, ECHR 2007-… (extracts) the Court had again accepted that it may only be necessary for an applicant to prove that he belongs to a minority group that is particularly at risk. As demonstrated by the UNHCR Position Paper, the present applicant belonged to an ethnic group for whom no safe area existed. Even if the Court did not accept such a generalised approach, in light of the applicant's particular circumstances, the real risk to him was sufficient to make internal flight unavailable.

It was also not open to the Government to rely on their own country information in contradiction to the recommendations of the UNHCR Position paper since it would allow Contracting States to avoid their Convention obligations by invoking their own information instead of objective information collected by independent bodies.

Finally, the applicant relied on Council Directive 2004/83/EC and submitted that under Article 53 of the Convention the level of protection offered by the Convention had to be equal or higher to that in the Directive.

While the Government did not accept that there was a real risk to the applicant in any area of Sri Lanka, the latest objective country information made it clear that an individual in the applicant's position would not be at risk in Colombo, where they sought to return him. They relied on the Court's rulings in Venkadajalasarma and Thampibillai, cited above. The Court's findings in those cases were reflected in the AIT's country guidance determination in PS (see paragraph 47 above). In the light of the domestic authorities' decisions in the present applicant's case, a fortiori, there would be no violation if he were to be returned.

It was necessary to consider whether the situation in Sri Lanka had changed sufficiently to mean that removal there would be a violation of Article 3, but the Government relied on the findings of the domestic authorities that, in the circumstances of the applicant's case, the situation had not changed sufficiently to warrant such a conclusion. The Government relied on the Home Office Operational Guidance Notes of 9 March 2007 and 5 November 2007 and the AIT's determination in LP (see paragraphs 58–59 and 30–46 above). The UNHCR Position Paper of December 2006 had been carefully considered by the Government when it prepared the Operational Guidance Notes. Such UNHCR Position Papers had to be understood in their true context and in this connection the Government relied on the Immigration Appeal Tribunal's determination in NM and Others (see paragraphs 48 et seq. above) and the finding there that such papers were to be treated with care since language used by the UNHCR was not framed by reference to the Convention and the high threshold of Article 3 as understood in this Court's case-law. This was accepted by the AIT in LP and indeed the particular position paper of December 2006 had been duly considered by it. According to the BBC's report of 19 August 2007, the UNHCR in Thailand had itself refused the asylum claims of three Tamils (see paragraph 84 above).

In respect of the nine risk factors relied on by the applicant, the Government adopted the approach to assessing these risk factors which had been set out in LP and argued that the applicant had provided no evidence either to the domestic authorities or this Court to substantiate the assertion that these risk factors were engaged in his particular case and even less so that they would lead to a real risk of treatment contrary to Article 3. The risk to him as a young male Tamil was only relative to the risk to other Tamils. There was an express finding by the Adjudicator that there was no record of his even having been involved with the LTTE and there was no evidence that he had a criminal record. The applicant had not jumped bail or escaped from custody. The Government thus relied on the fact that in LP the AIT had made it clear that while someone who had escaped from custody or jumped bail would be at a higher risk of being identified at Colombo airport, it would be very different if a person had merely been informally detained and released after payment of a bribe. There was no evidence that the document signed by the applicant's father amounted to a confession and no evidence that it would ever be used against him in Sri Lanka. In respect of the applicant's scars, the Government again relied on the fact that in LP the AIT had found that scarring was significant only when there were other factors that would bring someone to the attention of the authorities. Without further evidence from the applicant, the same reasoning applied to the fact that he would be returning from London and had made an asylum claim abroad. Finally, according to the applicant, his brother had assisted the LTTE only through non-combatant work before he fled to Saudi Arabia.

The domestic authorities had taken adequate account of the most recent security situation in Sri Lanka. In particular the Secretary of State's letter to the applicant of 10 January 2007 (see paragraph 15 above) was fully reasoned and considered all available objective evidence and its approach was subsequently confirmed in the LP case. None of the available objective country information undermined the conclusions of the AIT in LP and the need for a detailed and careful risk assessment in relation to the personal circumstances of each applicant. While the general human rights situation in Sri Lanka had deteriorated, there was no generalised risk applicable to Tamils being returned there. This approach had been confirmed by the High Court when considering the applications of five Tamils in light of the exchange of letters between the Section Registrar and the Agent of the Government (see paragraph 21 above).

As to the applicant's reliance on Directive 2004/83/EC (see paragraphs 51 and 100 above), the Government observed that Article 53 of the Convention did not prevent Contracting Parties from providing a higher level of protection than that provided for by the Convention. The interpretation of the Directive was primarily for the European Court of Justice and ultimately could be subject to supervision by the Court (Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland[GC], no. 45036/98, ECHR 2005-VI).

In assessing whether there would be a violation of Article 3 if a Contracting State were to expel an individual to another State, the Court will consider the following principles, as they appear in its settled case-law.

In the first instance, Contracting States have the right as a matter of international law and subject to their treaty obligations, including the Convention to control the entry, residence and expulsion of aliens (Üner v. the Netherlands[GC], no. 46410/99, § 54, ECHR 2006-….; Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1985, Series A no. 94, p. 34, § 67, Boujlifa v. France, judgment of 21 October 1997, Reports 1997-VI, p. 2264, § 42). The right to political asylum is also not contained in either the Convention or its Protocols (Salah Sheekh, cited above, § 135, with further authorities). However, expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3. In such a case, Article 3 implies an obligation not to deport the person in question to that country (Saadi v. Italy[GC], no. 37201/06, § 125, 28 February 2008).

The assessment whether there are substantial grounds for believing that the applicant faces such a real risk inevitably requires that the Court assess the conditions in the receiving country against the standards of Article 3 of the Convention (Mamatkulov and Askarov v. Turkey[GC], nos. 46827/99 and 46951/99, § 67, ECHR 2005-I). These standards imply that the ill-treatment the applicant alleges he will face if returned must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this is relative, depending on all the circumstances of the case (Hilal v. the United Kingdom, no. 45276/99, § 60, ECHR 2001-II). Owing to the absolute character of the right guaranteed, Article 3 of the Convention may also apply where the danger emanates from persons or groups of persons who are not public officials. However, it must be shown that the risk is real and that the authorities of the receiving State are not able to obviate the risk by providing appropriate protection (H.L.R. v. France, judgment of 29 April 1997, Reports 1997-III, § 40).

The assessment of the existence of a real risk must necessarily be a rigorous one (see Chahal v. the United Kingdom, judgment of 15 November 1996, Reports 1996-V, § 96; and Saadi v. Italy, cited above, § 128). It is in principle for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he would be exposed to a real risk of being subjected to treatment contrary to Article 3 (see N. v. Finland, no. 38885/02, § 167, 26 July 2005). Where such evidence is adduced, it is for the Government to dispel any doubts about it.

If the applicant has not yet been extradited or deported when the Court examines the case, the relevant time will be that of the proceedings before the Court (see Saadi v. Italy, cited above, § 133). A full and ex nunc assessment is called for as the situation in a country of destination may change in the course of time. Even though the historical position is of interest in so far as it may shed light on the current situation and its likely evolution, it is the present conditions which are decisive and it is therefore necessary to take into account information that has come to light after the final decision taken by the domestic authorities (see Salah Sheekh, cited above, § 136).

The foregoing principles, and in particular the need to examine all the facts of the case, require that this assessment must focus on the foreseeable consequences of the removal of the applicant to the country of destination. This in turn must be considered in the light of the general situation there as well as the applicant's personal circumstances (Vilvarajah and Others v. the United Kingdom, judgment of 30 October 1991, Series A no. 215, § 108). In this connection, and where it is relevant to do so, the Court will have regard to whether there is a general situation of violence existing in the country of destination.

However, a general situation of violence will not normally in itself entail a violation of Article 3 in the event of an expulsion (see H.L.R., cited above, § 41). Indeed, the Court has rarely found a violation of Article 3 on that ground alone. For example, in Müslim v. Turkey, no. 53566/99, 26 April 2005, where the Court considered the expulsion of an Iraqi national of Turkmen origin to Iraq, it found the mere possibility of ill-treatment because of the unstable situation in that country at the material time would not in itself amount to a breach of Article 3 (paragraph 70 of the judgment). Equally, in Sultani, cited above, § 67, the Court took notice of the general situation of violence at that time in Afghanistan but found that this, without more, was not sufficient to find a violation of Article 3. Moreover, in the Thampibillai and Venkadajalasarma judgments relied on by the parties in their observations in the present case, the Court considered the considerable improvement in the security situation in Sri Lanka and the ‘very real progress’ in the peace process at the material time as relevant factors in its finding that there were no substantial grounds for believing that the applicants would be exposed to a real risk of ill-treatment contrary to Article 3 (Thampibillai at paragraphs 64 and 65; Venkadajalasarma at paragraphs 66 and 67). In the earlier case of Vilvarajah and Others, cited above, the Court recognised the possibility of detention and ill-treatment in respect of young Tamil males returning to Sri Lanka. However, it insisted that the applicants show that special distinguishing features existed in their cases that could or ought to have enabled the United Kingdom authorities to foresee that they would be treated in a manner incompatible with Article 3 (paragraphs 111–112 of the judgment). Finally, while in Ahmed v. Austria, judgment of 17 December 1996, Reports 1996-VI, the Court did find a violation of Article 3 partly on account of conditions in Somalia in the early 1990s, it also noted that the Austrian Government had not contested the applicant's submission that there was no observable improvement in the general situation and had also accepted that at the material time the applicant could not be returned there without being exposed to the risk of treatment contrary to Article 3 (see paragraph 5 of the judgment).

From the foregoing survey of its case-law, it follows that the Court has never excluded the possibility that a general situation of violence in a country of destination will be of a sufficient level of intensity as to entail that any removal to it would necessarily breach Article 3 of the Convention. Nevertheless, the Court 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.

Exceptionally, however, in 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 (see Saadi v. Italy, cited above, § 132). In those circumstances, the Court will not then insist that the applicant show the existence of further special distinguishing features if to do so would render illusory the protection offered by Article 3. This will be determined in light of the applicant's account and the information on the situation in the country of destination in respect of the group in question (see Salah Sheekh, cited above, § 148). The Court's findings in that case as to the treatment of the Ashraf clan in certain parts of Somalia, and the fact that the applicant's membership of the Ashraf clan was not disputed, were sufficient for the Court to conclude that his expulsion would be in violation of Article 3.

In determining whether it should or should not insist on further special distinguishing features, it follows that the Court may take account of the general situation of violence in a country. It considers that it is appropriate for it to do so if that general situation makes it more likely that the authorities (or any persons or group of persons where the danger emanates from them) will systematically ill-treat the group in question (see Salah Sheekh, § 148; Saadi v. Italy, §§ 132 and 143; and, by converse implication, Thampibillai,§§ 64 and 65; Venkadajalasarma,§§ 66 and 67, all cited above).

In the light of the large amount of objective information placed before it by the parties, the Court also considers it necessary to restate the approach it takes to the assessment of such information before considering what conclusions may be drawn from it the present case. This is particularly important given that there is a dispute between the parties as to the weight to be attached to the UNHCR's assessment of the general situation in Sri Lanka (see paragraphs 96 and 102).

In this connection, the Court recalls the principles recently set out in Saadi v. Italy, cited above, §§ 128–133, that in assessing conditions in the proposed receiving country, the Court will take as its basis all the material placed before it or, if necessary material obtained proprio motu. It will do so, particularly when the applicant — or a third party within the meaning of the Article 36 of the Convention — provides reasoned grounds which cast doubt on the accuracy of the information relied on by the respondent Government. The Court must be satisfied that the assessment made by the authorities of the Contracting State is adequate and sufficiently supported by domestic materials as well as by materials originating from other reliable and objective sources such as, for instance, other Contracting or non-Contracting States, agencies of the United Nations and reputable non-governmental organisations (see Salah Sheekh, cited above, § 136; Garabayev v. Russia, no. 38411/02, § 74, 7 June 2007, ECHR 2007-… (extracts)). As regards the general situation in a particular country, the Court has often attached importance to the information contained in recent reports from independent international human-rights-protection organisations such as Amnesty International, or governmental sources, including the US State Department (see Saadi v. Italy, cited above, § 131).

In assessing such material, consideration must be given to its source, in particular its independence, reliability and objectivity. In respect of reports, the authority and reputation of the author, the seriousness of the investigations by means of which they were compiled, the consistency of their conclusions and their corroboration by other sources are all relevant considerations (see Saadi v. Italy, cited above, § 143).

The Court also recognises that consideration must be given to the presence and reporting capacities of the author of the material in the country in question. In this respect, the Court observes that States (whether the respondent State in a particular case or any other Contracting or non-Contracting State), through their diplomatic missions and their ability to gather information, will often be able to provide material which may be highly relevant to the Court's assessment of the case before it. It finds that same consideration must apply, a fortiori, in respect of agencies of the United Nations, particularly given their direct access to the authorities of the country of destination as well as their ability to carry out on-site inspections and assessments in a manner which States and non-governmental organisations may not be able to do.

While the Court accepts that many reports are, by their very nature, general assessments, greater importance must necessarily be attached to reports which consider the human rights situation in the country of destination and directly address the grounds for the alleged real risk of ill-treatment in the case before the Court. Ultimately, the Court's own assessment of the human rights situation in a country of destination is carried out only to determine whether there would be a violation of Article 3 if the applicant in the case before it were to be returned to that country. Thus the weight to be attached to independent assessments must inevitably depend on the extent to which those assessments are couched in terms similar to Article 3. Thus in respect of the UNHCR, due weight has been given by the Court to the UNHCR's own assessment of an applicant's claims when the Court determined the merits of her complaint under Article 3 (see Jabari v. Turkey, no. 40035/98, § 41, ECHR 2000-VIII). Conversely, where the UNHCR's concerns are focussed on general socio-economic and humanitarian considerations, the Court has been inclined to accord less weight to them, since such considerations do not necessarily have a bearing on the question of a real risk to an individual applicant of ill-treatment within the meaning of Article 3 (see Salah Sheekh, cited above, § 141).

In considering whether the applicant has established that he would be at real risk of ill-treatment in Sri Lanka, the Court observes as a preliminary matter that the Government propose to remove him to Colombo. In the light of this, the Court does not consider it necessary to examine the risk to Tamils in LTTE controlled areas or any other part of the country outside Colombo and will proceed to examine the risk to Tamils returning to Sri Lanka on this basis.

The Court first observes that it is accepted by the parties to the case that there has been a deterioration in the security situation in Sri Lanka. The Court finds no reason to disagree with the parties' assessment and notes that all the objective evidence before it supports this conclusion. This deterioration took place before the present application was lodged with the Court and has continued while the case has been pending, particularly since the formal end of the ceasefire in January 2008. It is also clear to the Court that the evidence before it supports the conclusion that the deterioration in the security situation in Sri Lanka has been accompanied by an increase in human rights violations, on the part both of the LTTE and the Sri Lankan Government. Killings, abductions and disappearances have increased (see the UNHCR Position Paper at paragraph 65 above; the United Nations High Commissioner for Human Rights at paragraph 69 above; the 2007 Amnesty International report at paragraph 76 above; and the Human Rights Watch report at paragraph 78 above). Investigations into such serious human rights violations are inadequate (see the IIGEP at paragraph 75 above and the Human Rights Watch report ‘Recurring Nightmare’ at paragraph 80 above). Torture and ill-treatment are common place (see the conclusions of the United Nations Special Rapporteur on Torture at paragraph 70 above) and there is also clear evidence of what the AIT described as ‘a culture of torture with impunity’ (see paragraph 35 above and the 2008 Amnesty International report at paragraph 77 above).

However, the Court also notes that the domestic authorities, while recognising this deterioration and the corresponding increase in human rights violations, did not conclude that this created a general risk to all Tamils returning to Sri Lanka (see in particular the findings of the AIT in LP in paragraphs 232 –234 of the determination; set out at paragraph 43 above), nor has the applicant in the present case sought to challenge that conclusion in his submissions. The Court has examined closely the developments in Sri Lanka since the AIT's determination in LP, particularly the information that has become available since that determination (see paragraphs 53–85 and 124 above). It considers that there is nothing in that objective information which would require the Court to reach a different conclusion of its own motion.

The Court also finds that in reaching the conclusions they did, the United Kingdom authorities, including the Secretary of State, the AIT and the High Court, gave serious and anxious consideration to the risk to Tamils returning to Sri Lanka (see paragraphs 58–59, 30–46, and 50 above). They considered all the relevant objective evidence and, just as importantly, considered the appropriate weight to be given to it.

In respect of the UNHCR Position Paper (see paragraphs 65–68 above) and in light of its own observations at paragraphs 118–122 above, the Court shares the view of the AIT in LP that ‘substantive weight’ should be accorded to it. However, the Court also accepts the domestic authorities' view that the UNHCR Position Paper, by its nature, speaks in necessarily broad terms. In contrast to the findings made by the UNHCR and relied on by the Court in the Jabari judgment, cited above, §§ 18 and 41, the UNHCR's Position Paper is a general survey of the varying risks to each of Sri Lanka's different ethnic groups. As such, the views expressed in that paper could not themselves be decisive in the domestic authorities' assessment of the risk to Tamils returning to Sri Lanka and cannot be decisive in the Court's own assessment of the same. Indeed, the Position Paper said that Tamils ‘with certain profiles’ were liable to suffer serious human rights transgressions and that where individual acts of harassment did not in and of themselves constitute persecution, taken together, they might cumulatively amount to a serious violation of human rights and therefore be persecutory.

It follows that both the assessment of the risk to Tamils of ‘certain profiles’ and the assessment of whether individual acts of harassment cumulatively amount to a serious violation of human rights can only be done on an individual basis. Thus, while account must be taken of the general situation of violence in Sri Lanka at the present time, the Court is satisfied that it would not render illusory the protection offered by Article 3 to require Tamils challenging their removal to Sri Lanka to demonstrate the existence of further special distinguishing features which would place them at real risk of ill-treatment contrary to that Article (see Salah Sheekh, cited above, § 148 and paragraphs 116–117 above).

The Court therefore considers that it is in principle legitimate, when assessing the individual risk to returnees, to carry out that assessment on the basis of the list of ‘risk factors’, which the domestic authorities, with the benefit of direct access to objective information and expert evidence, have drawn up. The Court also notes that the AIT in LP considered all the relevant risk factors identified and put before it by the appellant in that case and that the AIT itself was careful to avoid the impression that these risk factors were a ‘check list’ or exhaustive. It further notes that in the present case, the parties' observations as to the individual risk to the applicant are made with reference to the same risk factors considered in LP. Furthermore, the applicant has not identified any further risk factors which were not considered in LP but which would assist the Court in its assessment. As it has recalled, the Court's own assessment must be full and ex nunc (paragraph 112 above) but on the basis of the objective evidence before it, the Court itself does not consider it necessary to identify any additional risk factors which have not been duly considered by the domestic authorities or raised by the parties in their observations.

Despite this conclusion, the Court emphasises that the assessment of whether there is a real risk must be made on the basis of all relevant factors which may increase the risk of ill-treatment. In its view, due regard should also be given to the possibility that a number of individual factors may not, when considered separately, constitute a real risk; but when taken cumulatively and when considered in a situation of general violence and heightened security, the same factors may give rise to a real risk. Both the need to consider all relevant factors cumulatively and the need to give appropriate weight to the general situation in the country of destination derive from the obligation to consider all the relevant circumstances of the case (see the Hilal judgment, cited above, § 60).

Moreover, the Court finds that the information before it points to the systematic torture and ill-treatment by the Sri Lankan authorities of Tamils who will be of interest to them in their efforts to combat the LTTE. This was the underlying conclusion which formed the basis of the elaboration of the risk factors in LP (see paragraphs 227 and 232 of the determination, set out at paragraphs 42–43 above). Indeed, as Mr Justice Collins later put it (see paragraph 50 above):

The Court observes that the evidence which has become available since the domestic authorities considered the return of Tamils to Sri Lanka provides further support for this conclusion. The United Nations Special Rapporteur on Torture found that torture is widely practiced in Sri Lanka and observed it was ‘prone to become routine’ in the context of counter-terrorism operations (see paragraph 70 above). This is corroborated by the annual reports of the US State Department and Amnesty International (see paragraphs 76, 77 and 71 above) and the report of the Medical Foundation for the Care of Victims of Torture (see paragraph 83 above). The culture of impunity identified by the AIT in LP was also noted by the United Nations High Commissioner for Human Rights in her visit to Sri Lanka: her press release described the prevalence of impunity as ‘alarming’ (see paragraph 69 above).

On the basis of this evidence, the Court therefore finds that, in the context of Tamils being returned to Sri Lanka, the protection of Article 3 of the Convention enters into play when an applicant can establish that there are serious reasons to believe that he or she would be of sufficient interest to the authorities in their efforts to combat the LTTE as to warrant his or her detention and interrogation (see Saadi v. Italy, cited above, § 132).

In respect of returns to Sri Lanka through Colombo, the Court also finds that there is a greater risk of detention and interrogation at the airport than in Colombo city since the authorities will have a greater control over the passage of persons through any airport than they will over the population at large. In addition, the majority of the risk factors identified by AIT in LP will be more likely to bring a returnee to the attention of the authorities at the airport than in Colombo city. It is also at the airport that the cumulative risk to an applicant arising from two or more factors will crystallise. Hence the Court's assessment of whether a returnee is at real risk of ill-treatment may turn on whether that person would be likely to be detained and interrogated at Colombo airport as someone of interest to the authorities. While this assessment is an individual one, it too must be carried out with appropriate regard to all relevant factors taken cumulatively including any heightened security measures that may be in place as a result of an increase in the general situation of violence in Sri Lanka.

In this connection, the Court notes that the objective evidence before it contains different accounts of the precise nature of the procedures followed at Colombo airport and the nature of the information technology there (see the British High Commission letters and the Immigration and Refugee Board of Canada report at paragraphs 60–63 and 74 above). Indeed, the evidence suggests that the procedures followed by the Sri Lankan authorities may change over time. However, the Court also notes that, with the exception of the extracts of the British High Commission's letter of 25 January 2008 that appeared in the March 2008 COI Report (see paragraph 60 above), all the above evidence was considered by the AIT in LP where it was undisputed that records were kept and interviews conducted at the airport and where the AIT found that computerised records were available to the police at the airport, from which they could identify possible ‘bail jumpers’ (see paragraph 35 above). In the light of the extensive evidence before the AIT on this subject and its findings, the Court cannot come to a different conclusion on the basis of the uncorroborated British High Commission's letter of 25 January 2008 and the observations therein that the Sri Lankan CID do not use computers, particularly when, as the COI Report noted, in its letter of 24 August 2006, the British High Commission had previously reported that ‘the Sri Lankan authorities have a good IT system to track arrivals and departures at the main airport and are able to track, in most cases, whether an individual is in the country or not’ (see paragraph 60 above). The Court also considers it to be of some significance that both the British High Commission letters and the assessment of the Immigration and Refugee Board of Canada indicate that there are established and routine procedures for briefly detaining and questioning returnees at the airport.

This evidence on procedures and facilities at the airport must also be placed alongside the AIT's finding on the availability of lists of failed asylum seekers to the Sri Lankan authorities, which was based on the British High Commission's letter of 24 August 2006 (see paragraph 40 above) and the evidence that scarring has been used in the past by the authorities as a means of identifying Tamils who will be of interest to them (see the finding of the AIT set out at paragraph 37 above). The Court notes the AIT's finding, in light of that evidence, that ‘failed asylum seekers are processed relatively quickly and with no difficulty beyond some possible harassment’ (see paragraph 44 above) but it considers that at the very least the Sri Lankan authorities have the technological means and procedures in place to identify at the airport failed asylum seekers and those who are wanted by the authorities. The Court further finds that it is a logical inference from these findings that the rigour of the checks at the airport is capable of varying from time to time, depending on the security concerns of the authorities. These considerations must inform the Court's assessment of the risk to the applicant.

Finally, in the Court's view, it cannot be said that there is a generalised risk to Tamils from the LTTE in a government controlled area such as Colombo. The Court accepts the findings of the domestic authorities that individual Tamils may be able to demonstrate a real and personal risk to them from the LTTE in Colombo. However, it also accepts their assessment that this will only be to Tamils with a high profile as opposition activists, or as those seen by the LTTE as renegades or traitors (see in particular the PS determination of the IAT at paragraph 47 above). The Court therefore considers that it must also examine any complaint as to the risk from the LTTE in the context of the individual circumstances of the applicant's case.

On the basis of the foregoing observations, the Court will examine the applicant's particular circumstances in order to determine whether there would be a violation of Article 3 if he were to be expelled to Sri Lanka. As the Court has observed, the applicant complained that he was at real risk from both the LTTE and the Sri Lankan authorities. Consequently, it will examine each of these aspects of his complaint in turn.

Before doing so, it observes that the Government do not appear to have disputed the Adjudicator's findings as to the credibility of the applicant's account. These were that the applicant bears scars from ill-treatment during detention; that he was arrested by the army six times between 1990 and 1997 on suspicion of his involvement with the LTTE and that on the last occasion he was photographed, fingerprinted and released after his father signed a document (see paragraph 8 above). The Court also notes the Adjudicator's finding that, following the ceasefire agreement, the applicant would be of no interest to the Sri Lankan authorities because he had been held for short periods and released without charge on each occasion (see paragraph 9 above). Finally, the Court notes the Adjudicator's findings that it was unlikely that the LTTE would have any interest in the applicant and unlikely that they could track him down in Colombo (see paragraph 10 above).

However, the Court also observes that the Adjudicator's decision of 27 July 2003 was the last full factual assessment by the domestic authorities of the applicant's case. As it has noted at paragraph 91 above, the basis for the applicant's subsequent fresh asylum claim and successive applications for permission to apply for judicial review was the deterioration in the security situation in Sri Lanka. As the Court has found, by the time the applicant's case was listed for an oral hearing, three of the four High Court judges who had considered the applicant's claim had formed the view that the situation in Sri Lanka had deteriorated but that in itself was not sufficient to alter the decisions of either the Adjudicator or the Secretary of State and the applicant did not, therefore, renew his application for permission to apply for judicial review at the oral hearing. In these circumstances, the Court is called upon to assess the risk to the applicant without the benefit of a recent and full factual assessment by the domestic authorities in his case.

In respect of the alleged risk to the applicant from the LTTE, the Court reiterates that it accepts the domestic authorities' assessment that while there may be a risk to Tamils in Colombo from the LTTE, this will be only to Tamils with a high profile as opposition activists, or those seen by the LTTE as renegades or traitors. Like the domestic authorities, it can discern no such factors in the applicant's case and is persuaded that, since his encounter with the LTTE took place ten years ago, if returned to Colombo he would be of little interest to them. He would therefore not be at real risk of ill-treatment contrary to Article 3 by the LTTE if returned to Colombo.

In assessing the risk to the applicant from the Sri Lankan authorities, the Court will examine the strength of the applicant's claim to be at real risk as a result of an accumulation of the risk factors identified in LP (see paragraphs 30–46 above). However, it will do so in light of its own observations set out in paragraphs 130–136 above. In particular, the Court underlines first, the need to have due regard for the deterioration of the security situation in Sri Lanka and the corresponding increase in general violence and heightened security; and second, the need to take a cumulative approach to all possible risk factors identified by the applicant as applicable to his case.

In LP, the AIT considered a previous criminal record and/or arrest warrant to be a significant factor, albeit with the qualification that it did not mean, of itself, that the applicant had a well-founded fear of persecution or other significant harm on return to Sri Lanka. The Court recalls that the AIT also found that the issue was to establish the credibility of the criminal record, or an arrest warrant, and to decide whether it was reasonably likely to exist in respect of the applicant in the particular case (see paragraph 34 above). In the Court's view, the present applicant, who was arrested and detained by the Sri Lankan authorities six times, photographed and fingerprinted, can rely on this risk factor, particularly since his claim was found credible on this point. The applicant did not jump bail or abscond from police custody so as to engage this separate risk factor identified by the AIT in LP (see paragraph 35 above) and the Court accepts the AIT's view that persons who jump bail or abscond are at a higher level of risk of being identified from police computers at the airport. However, the applicant's father signed a document to secure his son's release. Understandably, this document was not available to the parties and so was not put before the Court. Its precise nature is not known but the logical inference is that it would have been retained by the Sri Lanka authorities at the time of the applicant's release. The Court notes that the Government did not suggest that there was never such a document, rather they sought to question the weight to be accorded to it and argued that there was no evidence that this amounted to a confession and no evidence that it would be used against the applicant in Sri Lanka. The Court accepts that no firm conclusions can be drawn as to whether the document amounted to a confession or, as the AIT also considered in LP, a statement made in Sinhala which the applicant or his father did not understand. However, in the Court's view it is not necessary to consider whether such a document additionally engages the particular risk factor identified by the AIT as relating to confessions or statements (see paragraph 36 above) since whatever the nature of that document, at the very least it amounts to a record of the applicant's detention.

The Court also accepts the assessment of the AIT that scarring will have significance only when there are other factors that will bring the applicant to the attention of the authorities such as being wanted on an outstanding arrest warrant or a lack of means of identification (see paragraph 37 above). However, where there is a sufficient risk that an applicant will be detained, interrogated and searched, the presence of scarring, with all the significance that the Sri Lankan authorities are then likely to attach to it, must be taken as greatly increasing the cumulative risk of ill-treatment to that applicant.

The Court recognises that it has been over ten years since the applicant was last detained by the Sri Lankan army. However, the Court considers that the greatest possible caution should be taken when, as in the applicant's case, it is accepted that a returnee has previously been detained and a record made of that detention. As the AIT found in LP (see paragraph 44 above), such a record may be readily accessible to airport authorities, meaning the person in question may become of interest to the authorities during his or her passage through the airport. Where there is a likelihood that this will result in delay in entering the country, there is clearly a greater risk of detention and interrogation and with it a greater risk of ill-treatment contrary to Article 3 (see paragraphs 131–133 above). Equally, in light of its observations at paragraphs 130–136 and 142 above, the Court finds the passage of time cannot be determinative of the risk to the present applicant without a corresponding assessment of the current general policies of the Sri Lankan authorities (see, mutatis mutandis, Saadi v. Italy, cited above, § 43; the Jabari judgment; cited above, § 41, in fine). Their interest in particular categories of returnees is likely to change over time in response to domestic developments and may increase as well as decrease. In the Court's view, it cannot be excluded that on any given date if there is an increase in the general situation of violence then the security situation in Sri Lanka will be such as to require additional security at the airport. The Court also recalls its finding at paragraphs 134–136 above, notably that computerised records are available to the airport authorities. Given that it is undisputed that the applicant was arrested six times between 1990 and 1997, that he was ill-treated in detention and that it appears a record was made of his detention on at least one occasion, the Court considers that there is a real risk that the applicant's record will be available to the authorities at the airport. Furthermore, it cannot be excluded that on any given date the security situation in Sri Lanka would be such as to require additional security at the airport and that, due to his risk profile, the applicant would be at even greater risk of detention and interrogation.

Insofar as they have been relied on in this case, the Court has also examined the additional factors in LP: the age, gender and origin of a returnee, a previous record as a suspected or actual LTTE member, return from London, having made an asylum claim abroad and having relatives in the LTTE. It has also noted the relative weight which the AIT attached to each risk factor (see paragraphs 32, 33, 38, 40 and 41 above). It considers that, where present, these additional factors contribute to the risk of identification, questioning, search and detention at the airport and, to a lesser extent, in Colombo. In respect of having relatives in the LTTE, the Court accepts the Government's submission that this is of little weight in this case; few details of the involvement of the applicant's brother in the LTTE or his present whereabouts have been provided. However, the Court accepts that the remaining factors are all capable of being relied upon by the applicant and, on the facts of his case, their cumulative effect is to increase further the risk to him, which is already present due to the probable existence of a record of his last arrest and detention. He is a male Tamil who is thirty-two years of age and the AIT found there was a higher propensity on the part of the Sri Lanka authorities to target young men and women from the north and east in a period of ‘virtual civil war’ (see paragraph 32 above). This must apply a fortiori since the formal end of the ceasefire (see paragraph 54 above). On the applicant's account, which was found to be credible by the Adjudicator, his six arrests were on the basis of suspicion of LTTE involvement, even if he was ultimately found to have no such involvement. While the Court agrees with the AIT in LP that in respect of this risk factor it is of ‘vital importance’ to establish an applicant's profile and the credibility of his background in some depth (see paragraph 33 above), it also finds that this was so established in the present applicant's case and thus significant weight must be given to the Adjudicator's finding as to his credibility (see paragraph 8 above). Finally, any return of the applicant to Sri Lanka would be from London or another United Kingdom airport and clearly he has made an asylum claim abroad. In respect of the latter risk factor, the Court accepts the AIT's finding in LP that this would be a ‘contributing factor’ which would need other, perhaps more compelling factors before a real risk could be established but it also notes with concern the AIT's findings that lists of failed asylum seekers could form part of search operations in Tamil areas of Colombo and that application forms for replacement passports and travel documents might alert the Sri Lankan High Commission in London and that information could be passed on (see paragraph 40 above).

The Court has taken note of the current climate of general violence in Sri Lanka and has considered cumulatively the factors present in the applicant's case. It also notes its finding at paragraphs 131–133 above that those considered by the authorities to be of interest in their efforts to combat the LTTE are systematically exposed to torture and ill-treatment. There 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. This in turn would lead to the discovery of his scars. On this basis, the Court finds that these are substantial grounds for finding that the applicant would be of interest to the Sri Lankan authorities in their efforts to combat the LTTE. 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.