ECtHR - NA v UK, Application No. 25904/07

The Court found that it was more appropriate to deal with the compliant under Art. 2 in the context of its examination of the related compliant under Art. 3. The Court noted that the right to asylum is not contained in its Convention or Protocols but that expulsion may give rise to an issue under Art. 3 and hence engage the responsibility of the State under the Convention. The ill-treatment the Applicant alleges must attain a minimum level of severity if it is to fall within the scope of Art. 3. This assessment is relative, depending on all the circumstances of the case. The assessment must also be a rigorous one and a full and ex nunc examination is required. The general circumstances including whether there is a general situation of violence are relevant as well as the Applicant’s personal circumstances. The Court noted that a general situation of violence will not normally of itself entail a violation of Art. 3 in the event of an expulsion (para. 114). At this stage the Court examined the foregoing case-law of its Court on this issue of generalized violence concluding that (Para. 115) ‘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 Art. 3’. However 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.

The Court went on to state ‘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’ (Para.116).

The Court went on to then assess the objective information before it and set out some of the Court’s principles with respect to approaching country information (Para 118- 122). The Court stated in assessing risk that it is in principle letigimate, when assessing the individual risk to returnees, to carry out the assessment on the basis of the list of ‘risk factors’ as drawn up by the national authorities. The Court noted that the AIT in the UK was careful to avoid the impression that these risk factors were a ‘checklist’ or exhaustive (Para. 129). The Court itself on the basis of the evidence before it did not consider it necessary to identify any additional risk factors which had not been duly considered by the domestic authorities or raised by the parties in their observations. The Court found that the information placed before it pointed to systemic 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. On the basis of this evidence, the Court therefore found 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. It also took into account additional risks of detention and interrogation at the airport with respect to returns via Colombo. The Court said that though it cannot be said that there is a generalized risk to Tamils from the LTTE in a government controlled area such as Colombo, individuals may be able to demonstrate a real risk to them from the LTTE in Colombo if they have a high profile such as opposition activities or as those seen by the LTTE as renegades or traitors (Para 137).

Taking into account the Applicant’s individual circumstances, the Court found that there would be no real risk of ill-treatment contrary to Art. 3 by the LTTE if returned to Colombo. In assessing the risk to the Applicant from the Sri Lankan government due regard has to be taken for the deterioration of the security situation in Sri Lanka and the corresponding increase in general violence and heightened security. The Court took into account a number of risk factors including the Applicant’s scars, the fact he was a male Tamil of 32 years of age, probably existence of his last arrest and detention, his six arrests on the basis of suspicion of LTTE involvement and the fact he had made an asylum claim abroad, among others. The general climate of violence had to be taken into account as well and the Court found that there were substantial grounds for finding that the Applicant would be of interest to the Sri Lankan authorities in their efforts to combat the LTTE. In such circumstances there would be a violation of Art. 3 if the Applicant were to be returned to Sri Lanka.