The British House of Commons

The British House of Commons Foreign Affairs Committee, has in a very critical report, noted that there is scant evidence of progress in political and human rights in Sri Lanka.
Made up of House of Commons legislators, the report notes that as Prime Minister David Cameron remains committed to attend the Commonwealth Heads of Government Meeting (CHOGM) in Sri Lanka, he should obtain assurances from the Sri Lankan Government that people who approach him to talk about human rights while he is in Sri Lanka to attend the summit do not face reprisals or harassment by security forces.

The Committee recorded evidence from human rights groups including Amnesty International and also obtained written statements from the British Foreign Office before compiling the report.
The Committee wants the British Foreign Office, in its response to the report, state whether it still holds the view that there is no substantiated evidence of torture or maltreatment of people who have been returned by UK immigration authorities to Sri Lanka. (Colombo Gazette)

Report on Sri Lanka
The Government is clear that it has serious reservations about the state of human rights in Sri Lanka. In the 2012 Human Rights and Democracy Report, the FCO lists as its concerns:

· Restrictions on freedom of expression and opinion

· Attacks on, and intimidation of, journalists, legal professionals, human rights defenders and others

· Lack of progress on post-conflict reconciliation and the absence of an independent, thorough and credible investigation into allegations of violations of international humanitarian and human rights law by both sides during the military conflict

· Sri Lanka’s decision to reject a large number of recommendations at the UN Human Rights Council during its Universal Periodic Review in November 2012.

A number of these concerns were echoed in written submissions to our inquiry from Redress and Amnesty International.

THE 2013 CHOGM IN COLOMBO

14. The Government has come under pressure to show its disapproval of the more repressive actions of the Sri Lankan government by declining to attend the Commonwealth Heads of Government Meeting to be held in Colombo in November 2013. The Canadian Prime Minister, Stephen Harper, announced in September 2011 that he would not attend the Colombo CHOGM unless he saw evidence of progress in human rights conditions in Sri Lanka.  We recommended in our report on the Role and Future of the Commonwealth, published in November 2012, that the Prime Minister “should publicly state his unwillingness to attend [CHOGM] unless he receives convincing and independently-verified evidence of substantial and sustainable improvements in human and political rights in Sri Lanka”.

15. There is scant evidence of progress in political and human rights in Sri Lanka. Amnesty International told us in May that “we continue to witness a deterioration of human rights in Sri Lanka, including attacks on the judiciary and broader civil society”.  On 31 August, the UN High Commissioner for Human Rights, Navi Pillay, issued a statement following a seven-day mission to Sri Lanka, listing serious concerns about the treatment of human rights defenders and the curtailment or denial of personal freedoms, all of which suggested that the country was “heading in an increasingly authoritarian direction”. She also reported that Sri Lankans who had spoken to her during the visit had been harassed and intimidated by security forces. The FCO’s 2012 Human Rights and Democracy Report (published in April 2013) spoke of “a number of negative developments” in the country, where the human rights situation was already “of serious concern”. Nonetheless, the Foreign Secretary wrote to the Committee Chair on 3 May to say that he and the Prime Minister would attend the Commonwealth Heads of Government Meeting in Colombo in November. He said that “we will do so because of the importance of the Commonwealth to the United Kingdom and to other members” and he stressed that the UK would use the occasion “to highlight the need for effective commitment to the shared values and human rights for which the Commonwealth stands”.

16. We asked witnesses from Amnesty International and Human Rights Watch for their views on the Government’s decision to attend. Kate Allen, Director of Amnesty International (UK), said that “we very much regret that decision”, and David Mepham, UK Director of Human Rights Watch, regretted that the Government had decided to attend at prime ministerial level. However, neither argued specifically in favour of a boycott: given that the decision had been taken to hold the CHOGM in Colombo, Ms Allen argued that “we need to be using all mechanisms between now and that meeting to put pressure on the Sri Lankan Government in terms of its human rights record”, and she recommended that the Foreign Secretary and the Prime Minister should meet representatives of NGOs and civil society in Sri Lanka and travel to the north of the country. Mr Mepham expressed similar views. We note that the Prime Minister remains committed to attending the CHOGM. However, we recommend that the Prime Minister should obtain assurances from the Sri Lankan Government that people who approach him to talk about human rights while he is in Sri Lanka to attend the CHOGM do not face reprisals or harassment by security forces.

17. Whatever the rights and wrongs of the Government’s decision, we do not believe that continuing discussion on whether or not the Prime Minister and Foreign Secretary should attend the 2013 CHOGM in Colombo would necessarily be productive. Nor do we believe that the question of the venue should be reopened at this late stage: as the Foreign Secretary said in his letter of 3 May to the Committee Chair, “there has been no widespread support for a change in location of CHOGM, and there is concern that the Commonwealth itself … should not be damaged, weakened or undermined by divisions over the location of the Heads of Government meeting”.

18. What concerns us now is how the Government has come to find itself in this position, and whether the FCO played its hand poorly, both in the discussions which led to the decision that Sri Lanka would be the hosts in 2013 and subsequently. We therefore wrote to the Foreign Secretary in May 2013, asking specific questions about those discussions and the FCO’s policy at the time. He replied on 30 May, observing that:

· The Commonwealth Secretariat was responsible for identifying the venue for each CHOGM, and it was for Commonwealth Heads of Government to agree to either support or oppose the proposals;

· The UK had made it clear to the Commonwealth Secretary-General both prior to and during the 2009 CHOGM in Port of Spain that the UK would be unable to support Sri Lanka’s bid to host the 2011 CHOGM; and

· The decision to hold CHOGM in Sri Lanka in 2013 had been taken at the Port of Spain CHOGM in 2009, as part of a package which allocated the 2011 CHOGM to Australia and the 2015 CHOGM to Mauritius. It was not conditional on specified improvements in the standards of human rights in Sri Lanka.
From this letter, it became evident that the FCO had objected to Sri Lanka’s offer to host the 2011 CHOGM, which was subsequently offered to Australia, but not its offer to host the 2013 CHOGM.

19. The Foreign Secretary also stated, in his letter of 30 May, that “the Commonwealth is a consensus-based organisation”. We therefore asked Baroness Warsi, as Senior Minister of State at the FCO, why the UK had not objected in 2009 to the decision that Sri Lanka would host the 2013 CHOGM. She replied that “my understanding is that we did raise those concerns, but the appetite at the Commonwealth meeting was not such that it would prevent Sri Lanka from holding the Heads of Government meeting”. When we pointed out that decisions in Commonwealth meetings were taken by consensus, she replied that “yes they are, but not unanimously”. Pressed further, she explained that “you can have consensus without everyone around the table having completely agreed to the situation”.

20. On the information available to us, the policy followed by the FCO during discussions at the 2009 Commonwealth Heads of Government meeting in Port of Spain on venues for future Commonwealth Heads of Government Meetings seems to have been inconsistent. The FCO objected to a proposal that Sri Lanka might host the 2011 CHOGM on human rights grounds but did not obstruct a proposal that it might do so in 2013; nor did it insist that Sri Lanka’s right to host in 2013 should be conditional on improvements in human rights. That approach now appears timid. The UK could and should have taken a more principled stand in 2009, and should have taken a more robust stand after the 2011 CHOGM in the light of the continuing serious human rights abuses in Sri Lanka.

ALLEGATIONS OF TORTURE OF SRI LANKANS REMOVED FROM THE UK

21. Our report last year on the FCO’s human rights work considered allegations of torture within Sri Lanka, specifically of Sri Lankan Tamils who had been returned from the UK following an unsuccessful application for asylum. Under Article 3 of the UN Convention Against Torture, signed by the UK in 1985, no state party “shall expel, return (“refouler”) or extradite a person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture”. If this had indeed been the case in relation to people returned by the UK to Sri Lanka, there would be grounds for arguing that the UK had acted in breach of its obligations under the UN Convention Against Torture.

22. Last year the Government acknowledged to us that maltreatment and torture happen in Sri Lanka, and this year’s Human Rights and Democracy Report notes that reports of torture in the country continue. The Government has until recently maintained that it had no substantiated evidence that people returned by the UK immigration authorities to Sri Lanka had been maltreated. In a recent Country Policy Bulletin on Sri Lanka, the UK Border Agency analysed allegations by a number of non-government organisations of specific instances of torture, and it dismissed them for a variety of reasons, concluding that no change in policy was warranted. It reiterated that each case was considered on its merits and that it did not believe that Tamils in general were at risk on return to Sri Lanka. This view has been supported in a recent determination by the Upper Tribunal (Immigration and Asylum Chamber). We note from a response by the UK Border Agency in February 2013 to a Freedom of Information request by Freedom from Torture that 15 Sri Lankan nationals were granted refugee status in the UK between May 2009 and September 2012 having been removed from the UK on a previous occasion. While this indicates clearly that the Sri Lankans concerned were deemed to be at risk if returned a second time to Sri Lanka, it does not prove conclusively that they would have been at risk when first returned (possibly several years previously), or that they had suffered torture in the intervening period.

23. Unlike the 2011 Human Rights and Democracy report, the 2012 Report does not mention allegations of torture of migrants returned to Sri Lanka from the UK, and it does not re-iterate the Government’s view that there is no substantiated evidence of torture of such people. David Mepham, UK Director of Human Rights Watch, told us that he believed that this was significant and that it showed that the Government “cannot stand by” its view and had now recognised that the evidence put forward by Human Rights watch and others was “credible”. When we asked Baroness Warsi whether it was still the Government’s position that there were no substantiated allegations, she declined to give a direct answer. We find it unsatisfactory that the Government should now be silent on a matter of such significance. We recommend that the FCO, in its response to this report, state whether it still holds the view that there is no substantiated evidence of torture or maltreatment of people who have been returned by UK immigration authorities to Sri Lanka.
Assessment of risk

24. Scrutiny of individual asylum decisions by the UK Border Agency, and of asylum policy, is not a matter for this Committee. Our locus is the role of the FCO which, alongside non-governmental organisations, the UN High Commission for Refugees and news media, provides the Country of Origin Information Service (part of the UK Border Agency until the UKBA’s absorption into the Home Office earlier this year) with information on potential risk to people returned from the UK. That information is collated and used to guide case officers considering asylum claims. The FCO told us last year that it was “rigorous in its evaluation of sources when offering advice on the human rights risks to the UK Border Agency”.

25. During the course of our inquiry, the Upper Tribunal (Asylum and Immigration Chamber) issued a long-awaited determination on three appeals by Sri Lankans, one against refusal of leave to enter the UK and two against decisions to remove to Sri Lanka. The Tribunal found in favour of two out of the three appeals, and it also concluded that there had been a significant change in the Sri Lankan Government’s approach, which now possessed “sophisticated, extensive intelligence as to those who are seeking to destabilise the unitary state, within the diaspora and in Sri Lanka itself”. The Tribunal found that this had implications for risk to those returned from the UK, and it drew up new guidance on “at risk” categories for return to Sri Lanka. The determination itself replaces all previous Sri Lanka country case law in the UK, and the Home Office has now published a revised Operational Guidance Note, in line with the Tribunal’s determination.

26. It is a matter of concern to us that the UK Border Agency’s assessment of risk to Sri Lankans on being returned from the UK to Sri Lanka, which will have been partly based upon information provided by FCO staff in Sri Lanka, was found by the courts to be flawed and in need of revision. The FCO should examine whether it could have enabled the UK Border Agency itself, rather than the courts, to have reached the conclusion that a change to the guidance on risk was required. We also observe that the FCO’s Strategy on the Prevention of Torture makes no mention of the UK’s obligations under Article 3 of the UN Convention Against Torture and how the FCO should play its part in ensuring that these are met. We recommend that the FCO amend its Torture Prevention Strategy accordingly.
October 17, 2013