UK - Court of Appeal, 6 November 2008, PS (Sri Lanka) v Secretary of State for the Home Department [2008] EWCA Civ 1213

Country of Decision:
Country of Applicant:
Date of Decision:
06-11-2008
Citation:
[2008] EWCA Civ 1213
Court Name:
Court of Appeal
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Headnote: 

State protection should be assessed in the applicant’s home area, in the absence of an internal relocation alternative.  The Tribunal erred in finding that the fact that the applicant had been raped at her home on 3 separate occasions over a short period by government soldiers had the same effect on assessing future risk as if she had been raped by civilians. The soldiers appeared to act with impunity whereas that would not necessarily be the case for civilians. In assessing future risk past experience was central, as reflected in Art 4(4) of the Qualification Directive and by common sense. 

Facts: 

The applicant was a Tamil woman from the Jaffna Peninsula in Sri Lanka, an area where the LTTE had long been active. In November 2006 she was raped in her home, which was also a grocery shop, by two Sri Lankan soldiers who used to make purchases there. Five days later one of them returned with another soldier, and both of them raped her. A week or so later the same two returned and again raped her, holding her father at gunpoint so that he would witness it. The applicant later tried to kill herself by setting fire to herself. She failed, but her father took her to the home of her uncle who arranged her departure from the country.  Before she left she found out that she was pregnant and then miscarried or aborted. In the interim the soldiers had returned to her home, looking for her.

Her application for asylum was refused and she appealed.  Her appeal was initially allowed by the Immigration Judge.  However, the Secretary of State applied for reconsideration and the Tribunal dismissed the appeal.  It found that the applicant had not established that she was at risk of serious harm in the future and that the Tribunal’s current country guidance showed that there was adequate state protection in Sri Lanka.  The applicant appealed to the Court of Appeal.

Decision & Reasoning: 

The Court of Appeal allowed the appeal on the basis that the applicant was entitled to subsidiary protection.

The Tribunal had erred in finding that the country guidance decision of LP (Sri Lanka) supported a finding that the applicant could access state protection.  LP (Sri Lanka) only provided guidance on the availability of state protection for Tamils returned to Colombo.  As there was no allegation that the applicant could internally relocate, Lord Justice Sedley reasoned that “[t]he applicant’s experience and continuing fear was not of ill-treatment by the authorities in Colombo: it was of repeated sexual abuse by state military personnel in Jaffna. Her case is that, with perpetrators in the uniform of the state, there was no sensible possibility of state protection from conduct bearing clear hallmarks of toleration and impunity, and that is why she fled. To this I can see no answer on the evidence. The second immigration judge’s characterisation of the soldiers’ conduct as no different from that of civilian rapists is, with respect, unsustainable. The whole point was that, unlike ordinary criminals, the soldiers were in a position to commit and repeat their crime with no apparent prospect of detection or punishment”.

Secondly, the standard of proof in assessing future risk had been set at too high a level.  Contrary to the Tribunal’s finding there was a “real risk” that the soldiers would find out that she had returned.  Government soldiers were stationed in the vicinity of the applicant’s home and were able to act with impunity.  The Court found that “...given the legal test of risk and the centrality given (by [Art 4(4) of the Qualification Directive], but by common sense too) to past experience as a guide to future risk, the facts accepted by both tribunals established a real risk that, if returned home, the applicant would again be targeted for rape by rogue soldiers stationed in the locality”.  

Outcome: 

Appeal allowed, the case was remitted to the Secretary of State to determine what form of protection the applicant should be granted.

Observations/Comments: 

The Court of Appeal did not explore whether, on the facts of the case, the applicant was entitled to refugee status.

Case Law Cited: 

UK - R v Secretary of State for the Home Department Ex p Sivakumaran (and conjoined appeals) [1988] AC 958