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Sri Lanka Asylum seekers: New challenges

”Since the end of the military conflict in Sri Lanka in May 2009, the situation with regard to asylum seekers from Sri Lanka has become even more of a challenge than before. Thousands of Tamils fled the island as the final military operations jeopardized civilians lives with impunity. Two years after, there are still many Tamils who want to leave the island due to their very real fears of arbitrary arrest, abduction and torture;”
by Sri Lanka Advocacy Group, 17th August 2011

Internal conflicts in Sri Lanka have generated a refugee outflow since the 1950s, but a sharp increase occurred after the anti-Tamil riots of 1983 and the repression of the JVP-led southern insurrection in the late 1980s.At different stages of time, members of all ethnic and religious communities in Sri Lanka have sought asylum abroad; while the members of the Sinhala community were individuals facing persecution due to their political activities or their work as journalists or as human rights defenders, the members of the Tamil community who fled could claim systemic discrimination and violation of human rights as a minority group.
Since the end of the military conflict in Sri Lanka in May 2009, the situation with regard to asylum seekers from Sri Lanka has become even more of a challenge than before. Thousands of Tamils fled the island as the final military operations jeopardized civilians lives with impunity. Two years after, there are still many Tamils who want to leave the island due to their very real fears of arbitrary arrest, abduction and torture; their fears are fuelled by the absence of a credible and independent civilian administration in the north, continued military presence, lack of any official process of clarifying the fate of hundreds known to have surrendered to the armed forces during the last days of the offensive, or to have been taken into custody as they arrived at the receiving centres and, most important, the absence of any visible commitment by the Sri Lankan state to create a process of reconciliation that would restore their dignity to the Tamil people.
Even though more than two years has elapsed since the defeat of the Liberation Tigers of Tamil Eelam (LTTE), the Sri Lankan state continues to claim that there are attempts to revive the LTTE, especially from among the Tamil communities in the diaspora. This means that having any links or connections with internationals, even if they are family or friends, is viewed with suspicion. In addition, be it Tamil or Sinhala or Muslim, anyone who is critical of the government’s disregard for human rights or democratic principles is viewed as a ‘traitor’ and vulnerable to attack. 
It is in this context that we look upon a growing trend outside Sri Lanka to dismiss claims for asylum from Sri Lankans with grave concern. We have put this document together because our first-hand experiences of protecting victims and survivors of human rights abuse in Sri Lanka leads us to believe that the situation is not safe for any return of a person who has had her or his asylum claims rejected.
The Context:         
It must be borne in mind that discrimination against the Tamil minority   community in Sri Lanka is endemic and has been heightened by the suspicion generated by many years of war. The systems of public accountability are flawed and porous, and a culture of impunity is deeply embedded within the structures. There are many cases of torture and deaths in Police custody[i], of prolonged and unlawful detention and bureaucratic delays in the justice system that are experienced by all communities in the country including by members of the majority Sinhala community. The Tamil community’s experiences of the system are made additionally difficult due to the on-going discrimination against them which includes denial of their equal right to use Tamil in their correspondence and engagement with the state and its agencies. This has led to a general mistrust of the systems of law and order and law enforcement in the country.   
All Tamils face discrimination on the basis of their equal rights to use Tamil as an official language for official purposes. Those from the North and East, and from the central highlands, are subject to mistrust and suspicion due to the activities of armed Tamil groups including of the LTTE By virtue of having lived in areas of the country that were under LTTE control for several years, Tamils from those areas are suspected of being LTTE supporters. This is although there is public knowledge of the various methods of coercion used by the LTTE to ensure that every family had one person within their ranks and that all persons living under their control had undergone a compulsory training. Their capacity to have access to justice is limited by these circumstances.
The Prevention of Terrorism Act (PTA), which remains in force, allows for any person suspected of being a terrorist, linked to the LTTE or alleged to have provided shelter or any kind of support to a suspected terrorist to be detained for prolonged periods and to have their property acquired by the government. There have been repeated calls for the repeal of this law, which contravenes all internationally accepted human rights and legal standards, from the UN and human rights groups within and outside Sri Lanka. The existence of this Act is a deterrent to any individuals or groups who want to come forward to provide any assistance and services to Tamils who are victims of human rights violations. The Emergency Regulations, which had draconian provisions and was used to detain many persons for long periods, often without access to lawyers and families were relaxed in May 2010, but the prevalence of the PTA has made this meaningless. The Prevention of Terrorism Act and Emergency Regulation has been used primarily against the Tamil community although some Sinhalese critical of the government have also suffered under these laws in the period concerned.
Recourse available to Tamils in North who are victims of human rights violations
1. If a Tamil person in North is a victim of human rights violations, where can they go to file a complaint, both officially and unofficially? (for example, police stations, civil society, legal services, etc.) What is the process to file a human rights complaint?
Officially, everyone is supposed to be able to file a complaint at the Police Station closest to their home, and with the closest branch of the National Human Rights Commission. However, the situation varies.
For Tamils, filing a complaint at most Police Stations is difficult because often, there are no Tamil-speaking officers who can write the complaint down in the language in which it is made. There are many examples of cases in which Tamil suspects were made to sign statements and confessions in Sinhala, a language that they could not read.  There is also an extra level of scrutiny for a Tamil who wants to make a complaint, especially if it is against a state institution or an act allegedly committed by an officer of the state. Tamils with National Identity Cards indicating that they were born in the North or East or in the Central highlands are subjected to more questioning and suspicion.
There are reported cases of persons going into Police Stations to make a complaint being turned away and told that their complaint cannot be registered. There are also cases in which they have been abused, assaulted and arrested.
The situation is especially precarious for women who face the possibility of sexual abuse and violence when going into a Police Station to make a complaint. Often, women have found that there are no woman police officers in Police stations when they go to make a complaint.
In areas of the North and East where post-war re-settlement is taking place, policing is often undertaken by the military and the prevailing levels of insecurity mean that people in those areas are reluctant to have any engagement with the Police or military.
Although technically anyone can send a written complaint in to the Police Headquarters by Registered Post, this is not often done because a return address is required and people fear to reveal this information in case it falls into the hands of those who can then come after them.
Work in the offices of the National Human Rights Commission (NHRC) in Colombo and in the Districts has been affected by the crisis within the Commission. Public confidence in the institution has been undermined because of the appointment of Commissioners by the Executive. In addition, the HRC has displayed little or no regard for cooperation with civil society, and has been unable to respond effectively to the emergency situation in the country. In 2011, new members have been appointed to the Commission, but there is no indication that the situation may improve. The NHRC has a mandate to initiate investigations of their own accord without any complaint, including into imminent violations, but there have been no known cases where the HRC had done this, despite publicly available reports of violations that have happened and may happen. At present, persons who face human rights violations file complaints with the NHRC, more as a matter of record than with any expectation of a remedy. Past actions of the NHRC, where they have been known to collude with Police and Military, also have affected the confidence of the victims and complainants.
The ICRC offices in Jaffna and Vavuniya was by far the most preferred institute for people of the North to lodge complaints, in view of the respect it paid to complainants, the ability of ICRC officials to communicate in Tamil and the presence of international staff who were seen and perceived as neutral. The ICRC’s proven track record of being able to trace some missing persons and to visit detainees acted as a buffer against torture in detention; this provided further confidence for people to take their complaints to them. However, during the period covered, the government severely restricted the access of the ICRC to some areas and detention facilities, and finally, compelled the ICRC to close down their office in Jaffna, and the whole of North and East.
Those who are victims of human rights violations also register complaints with politicians and civil society groups that monitor the human rights situation in the country, including church-based groups. Some of this information is usually sent to the UN human rights system as well as to international human rights organizations working on human rights in Sri Lanka.
2.  What is the legal recourse available for Tamils in North who are victims of human rights violations?
If they are able to file a complaint with the Police, the Police must investigate, report to Magistrate Courts and then formulate a charge sheet and hand it on to the Attorney General’s Department for further action. Sri Lanka is notorious for laws delays.
The NHRC will conduct its own inquiry into the complaint and can recommend action by the relevant parties. However, the NHRC has no capacity to enforce implementation of its own recommendations.
 Many seek recourse to filing cases alleging violation of rights guaranteed by the fundamental rights section of the Constitution. This can only be done in situations where state culpability is clear so does not apply to violations committed by private/non-state actors even when carried out in complicity with the state. FR cases can only be heard by the Supreme Court which is based in Colombo and with few exceptions, need to be filed within 30 days of the violation. The procedure is cumbersome, and very expensive.
There is also recourse to writ applications, particularly Habeas Corpus. However, in practice, there have been very few Habeas Corpus and writ applications filed, as those that have been filed, have not yielded positive results in favor of the complainants and victims. [ii]
A few organizations offer legal aid and assistance, and there are a handful of lawyers who undertake pro bono work on behalf of human rights defenders. Many professional lawyers refuse to take up sensitive cases such as disappearances, extrajudicial executions, and occupation of land by military, detention under PTA and Emergency Regulations and torture due to concerns for their own safety and security.
3.  What government protection and services are available for Northern Tamils that are victims to human rights violations?
The mistrust and suspicion of Tamils, especially those who are from the North and East and from the Central highlands, as well as those who lived in the Vanni areas of the north during the last phase of the war in 2008/2009 leads to their being denied protection of their rights. In general, Tamils in Sri Lanka, including those who live in Colombo and other urban centres and who are professionals or from the public sector, live in a state of insecurity and fear due to the prevailing climate of mistrust and the systematic failure of the government to provide any credible responses to allegations of human rights violations, especially during the conflict period. The north and east remain heavily militarized, with an extremely high military presence in the Vanni. [iii]
The lack of confidence within the Tamil community in any of the institutions created to guarantee their protection makes them reluctant to seek support and services.
The absence of a Witness/Victim Protection Act also deprives Tamils of any measure of safety if they come forward to bear witness to human rights violations.
There are also few services available that can provide much needed counseling and support for victims and survivors of conflict, including those with lifelong mental and physical disabilities as a result of their exposure to the conflict.  We have received news of doctors refusing to treat injuries caused by Police and Military torture.
The absence of specific services which are culturally sensitive and available in Tamil for Tamil women who have been the victims of sexual violence and abuse creates a special obstacle for women.
4.  What non-governmental services and protection are available for Northern Tamils that are victims of human rights violations?
Few NGOs, lawyers and church groups provide legal assistance, advice and accompaniment to lodge complaints to state and international bodies. Often, these are done in secrecy due to fear of being targeted. There have been systematic attacks – direct threats as well as though media – by government officials and politicians on civil society groups and NGOs including church-based groups that have attempted to provide legal aid and other services to Tamils who are victims of human rights abuse. Even politicians of opposition parties, who have taken up cases of human rights violations, have been threatened and attacked. In May 2011, a Tamil MP from Jaffna received a threatening phone call and an meeting of the Tamil National Alliance in Jaffna was subject to attack in June 2011. The prevailing climate of impunity, the existence of the PTA and Emergency Regulations and negative publicity have placed obstacles in the way of groups that want to provide support to Tamils who are victims of human rights violations. The Non-Violent Peace Force, a key international NGO that provided direct protection and intervened on behalf of victims and their families was compelled to shut down their Jaffna office due to difficulties in getting work permits and visas for international staff and constant criticism from the government, including in the media.
Most NGOs and church groups are based in major towns of Jaffna, Vavuniya and Mannar, and those living in former LTTE controlled Vanni and in interior villages have very little access to assistance from these groups.
Colombo Police Registration for Sri Lankan migrants
1. Is it a requirement for Sri Lankan migrant citizens entering Colombo to register with the police? What is the process and by when should the migrant register?
The issue of registration is a confusing one. There is no legal requirement that any ‘outsider’ in Colombo and other cities should register with the local Police, since the May 2010 relaxation of Emergency Regulations. However, Police still do inquire into registration from Tamils and subject them to extra scrutiny if they do not have the document with them. 
Registration of persons in the North by the military continues todate, even after an assurance given by the Attorney General to Courts that this will not be done. This includes photo registration, and has been the cause of great fear and unrest among the Tamil community living in those areas
2. Is police registration based on where a migrant comes from? For example, if they are from Jaffna or other specific areas in Sri Lanka. Or, is registration based on whether the person is Tamil or Sinhalese?
Under the Police Ordinance, every Sri Lankan citizen must be registered with a Village Division (Grama Sevaka Division) where he or she resides. It is with this registration that one can apply for a National Identity Card. The Grama Sevaka officer informs the Police if he/she suspects that the information receives from a person is incorrect or false.
Police registration was put in place during the conflict years and made it compulsory for every householder in Colombo and other major urban centres to register temporary residents of the household (visitors and employees) with the local Police. In practice, this was only adhered to in the case of Tamils, and most severely, for those from North and East, and even more severely, for those who were born or resident in areas controlled by the LTTE. Even at check points, Sinhalese were often waved through, while Tamils were compelled to register, subjected to interrogation, detention and even beating, although this has recued since 2010. .
Usually, names and other details of a Tamil person is written in Sinhalese AND Tamil, while names and other details of a Sinhalese person is written in Sinhalese ONLY.  Also, in most cases, most Sri Lankan’s ethnicity could be identified based on the family name. Thus, although there is no specific clause in the National Identity Card that indicates ethnicity, it is structured in a way that is easy to determine whether a person is Tamil
3. Do Colombo residents that house migrants have to report to the police when they receive new people?
This is not the case with individual houses, but with places which house groups of people. Police require that all hotels, guest houses, lodges and residential training centres submit a daily record of residents to the local Police, along with photocopies of National Identity Cards or Passports.  Even five star hotels must comply with this.
4. Do the police perform searches/sweeps of the city to make sure people are registered?
The Police continue to conduct cordon and search operations in areas where there are a large number of Tamils resident, in the urban centres and also in the plantations. While the purpose of these operations is not to check on registration, Police often ask for and scrutinize National Identity Cards and Police registration as a means of verifying a person’s identity and place of residence.
5.  What are the consequences if a person does not register with the police upon arrival in Colombo?
They could be subject to detention, questioning, abuse and intimidation and arrest and even torture.
Sri Lankan Returnees
1. What are the security procedures for Tamil (and other) returnees, including failed refugee claimants, at the Colombo airport?
2. What are the repercussions, upon return, for not having proper government authorization to leave Sri Lanka, such as a passport?
If there is any doubt as to whether travel documents are forgeries, there will be extended questioning and possible detention.
Immigration authorities are alerted about the impending arrival of those who are deported or who are ‘returned’ as a result of failed asylum processes. They are also identifiable by the fact that they travel on temporary travel documents. These individuals are taken out of immigration queues and subjected to special questioning by the Police, and by members of the Terrorist Investigation Department. They are almost always detained, sometimes for few hours, and sometimes for months, until security clearance is obtained. In situations in which most families of the deported/returned persons have been displaced due to the war, are not contactable by telephone, and in which Police records that could attest to their legitimate address and non-involvement in criminal or terrorist activity have often been misplaced due to the constant cycles of displacement undergone by the entire community of the North and East in the past years, obtaining the required security clearance may take months. If there is no family member to follow up, this may lead to indefinite detention.
There are several cases of arrest, detention and torture of deported/returned Tamils arising from their initial arrest at the airport in Colombo.[iv] There are also reported cases of extortion by Immigration/Police officials.[v]
According to Phil Glendenning, Director of Edmund Rice Centre, Australia, which conducts research into situation of asylum seekers sent back from Australia, “we found that all asylum seekers returned to Sri Lanka in recent months, are handed over to the CID, the Sri Lankan Police, and taken into custody. Some are detained, some have been assaulted. One man who is still in jail has lost the hearing in one ear given the severity of the assault he suffered, and another has received damage to his sight. At this time, we hold grave concerns for the ongoing safety of these people, and of all deported asylum seekers to Sri Lanka”[vi]. In his statement, Mr. Glendenning further states that “We know that of the asylum seekers removed by Australia back to Sri Lanka in the Howard years, nine were later killed”, although the period referred the specific years these persons were killed is not clear.
In the event that the deported/returned person is ‘cleared’ and allowed to leave the airport, they are in danger of being detained at check-points for any number of reasons, and also subject to intimidation and extortion. They also face a threat from paramilitary groups who may abduct and torture them for information or for purposes of extortion.
3.  Do Tamil returnees to Sri Lanka face detention? If yes, under what circumstances?
Yes. Tamil returnees are detained and questioned about their connections with the LTTE in Sri Lanka, prior to their leaving the country, about the circumstances of their departures and about their links while they were outside the country. This can be a long process and under the PTA persons can be detained for prolonged periods.
The conditions of detention are very brutal; Returnees are particularly vulnerable if they arrive individually, and if no one knows they are arriving.
4.   What challenges do returnees face with government authorities and Sri Lankan society? 
Other than the challenges faced at re-entry, returnees face many difficulties in obtaining accommodation and employment, locating and reuniting with families and securing the necessary documentation, most critically, a National Identity Card, without which, they could face re-arrest, detention and torture again.
In the absence of any planned programmes or policies on reintegrating of returnees, individuals are left to their own devices, and are most vulnerable to abduction and extortion by armed groups that engage this as a common practice.
In addition, the suspicion with which returnees are faced creates complications for them when they seek to return to their villages and families as well as with the broader society as a whole. Returnees are in general viewed as ‘traitors’, ‘those who brought the country to disrepute’ ‘those who have lied about the situation in the country abroad’ etc.. This attitude is strengthened by the systematic media attacks on the Tamil diaspora community as being LTTE mouthpieces and supporters.
  1. Story of detention, torture and continued threats – on return after attempting to claim asylum in Australia[vii]
  2. Threats, harassments and restrictions on former detainees and their families in Vanni [viii]

[i] For example, see reports of the UN Special Rapportuer on Torture – report of the visit to Sri Lanka – February 2008, available at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G08/111/35/PDF/G0811135.pdf?OpenElement and his assessment of implementation of recommendations – February 2010, available at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G10/116/20/PDF/G1011620.pdf?OpenElement  (pages 202-2008) and more recent report by the Asian Human Rights Commission in June 2011, available at http://www.humanrights.asia/countries/sri-lanka/countries/sri-lanka/resources/special-reports/AHRC-SPR-001-2011-SriLanka.pdf
[ii] For detailed analysis of failure of Habeas Corpus applications in Sri Lanka, see Habeas Corpus in Sri Lanka: Theory and Practice of the Great Writ in Extraordinary Times by Kishali Pinto Jayawardena and Jayantha de Almeida Gunaratne, available at http://www.lawandsocietytrust.org/web/images/PDF/habeas%20corpus%20in%20sril%20lanka_%20theory%20and%20practice%20of%20the%20great%20writ%20in%20extraordinary%20times.pdf
[iv] See Annex 1 about the case of a young male Tamil, who was detained and tortured, released, abducted and tortured again, and continues to receive threats. Full details could be provided on assurances of confidentiality. For details of three other Sinhalese men (W. A. Lasantha Pradeep Wijeratne, Indika Mendia, Sumith Mendis)who were sent back after seeking asylum in Australia, and detained and tortured on return in relation to their seeking asylum, see Amnesty International Urgent Appeal (ASA 37/013/2010, dated 2nd September 2010) http://amnesty.org/en/library/asset/ASA37/013/2010/en/4b0616d3-7a5f-4f75-87cc-6100a6023f29/asa370132010en.html and case numbers 298 and 299 of a report of 323 cases of torture in Sri Lanka, documented by Asian Human Rights Commission and available at  http://www.humanrights.asia/countries/sri-lanka/countries/sri-lanka/resources/special-reports/AHRC-SPR-001-2011-SriLanka.pdf


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