Sweden – Migration Court of Appeal, 2 April 2008, UM 1436-07

Facts:

The applicant was a Tamil and from north-eastern Sri Lanka. In his asylum application the applicant stated that he had carried out tasks for the Tamil rebels Liberation Tigers of Tamil Eelam (LTTE) by transporting packages to Colombo and that he was wanted by both the LTTE and the Karuna faction because he did not wish to continue receiving these shipments. An invitation from June 2007 that the applicant's parents received from the Karuna group confirmed that they were looking for him. The applicant's family had been subjected to threats and harassment by armed groups. The applicant's mother turned to the Sri Lanka Monitoring Mission and complained. The applicant stated that his family now faced pressure from both the Karuna group and the LTTE and that he therefore did not have access to protection anywhere in Sri Lanka.

The Migration Board rejected the applicant's claim on the grounds that it was not proven that the applicant was wanted by the LTTE and the decision was then determined by the Aliens Appeals Board . Furthermore, it was found that if the applicant was still risk of being subjected to harassment, he would have the opportunity to seek protection in other parts of Sri Lanka.

The Migration Board took up the applicant's case again in the ‘temporary law’ (15.11.2005 - 30.3.2006) and rejected his application. The temporary law allowed for a re-examination of a concluded case by the Migration Board based on protection criteria but also on humanitarian grounds that were more generous than the regular Aliens Act (especially to families). The Migration Board found no reason to suspend execution of the applicant's deportation order pursuant to Chapter 12. § 18 of the new Aliens Act, or to grant a new trial pursuant to Chapter 12. § 19 of that Act. The Migration Court dismissed the applicant's appeal and the Migration Court of Appeal did not grant leave to appeal.

A few months later the applicant applied again for review with reference to the worsening situation in Sri Lanka but the Migration Board decided not to grant a new assessment. The applicant appealed against the decision, citing a new report from the UNHCR, according to which there was no realistic possibility of internal protection in Sri Lanka. The Migration Court dismissed the appeal on the grounds that the applicant’s argument about the issue of internal protection was not sufficient to lead to a new assessment. The applicant appealed to the Migration Court of Appeal which suspended the Migration Board's decision to expel the applicant.

Decision & reasoning:

The applicant argued in his appeal to the Migration Court of Appeal that the Migration Court's assessment of the potential for internal protection and the situation in Sri Lanka was wrong. The applicant maintained that the situation of Tamils from the northern and eastern parts of Sri Lanka had steadily deteriorated, and that there was an ongoing armed conflict. In support of this the applicant referred to UNHCR's new general guidelines for asylum seekers from Sri Lanka, where UNHCR stated that Tamils should be perceived as refugees or in need of subsidiary protection and that no internal protection was available.

The Migration Court of Appeal held that the question of the possibility of internal protection must be considered as a new factor because the UNHCR guidelines and recommendations should be seen as guidance in the assessment of asylum claims.

The applicant also stated in his appeal that he was subjected to torture by the Karuna commander in 2004 to force him to continue working for the LTTE and carry out orders for them. The reason he had not previously mentioned this was that he felt that he had given details of the threats and the beatings he suffered, and that didn't previously have the occasion to distinguish between the word "torture" and the word "abuse".

The Migration Board considered that the situation in Sri Lanka had not changed so much that it could be seen as a new circumstance in accordance with the Aliens Act. They further argued that despite the serious security situation, there was scope for internal protection. The Migration Board also pointed out that UNHCR's assessment concerned the possibilities of travelling within the country but that the applicant could avoid the potential dangers associated with internal travel, since he would travel from Sweden and could go directly to Colombo. The Migration Board also said that the applicant could be considered to have some connection to Colombo as in his work he commuted between the city and his community. The Board further pointed out that the applicant was unmarried and had no dependent children. The Migration Board also referred to a report by Britain's Home Office on Sri Lanka where it appeared that there were differing views on how the situation in Sri Lanka was to be assessed. The Migration Board said that the dossier the applicant lodged did not show that the applicant's individual risk profile regarding abuse had changed in such a way as to constitute a permanent obstacle to enforcement. As for the applicant's reference to being tortured, the Migration Board acknowledged that it certainly was a new fact but that there was no acceptable explanation as to why the fact was not invoked before.

The Migration Court of Appeal noted that the UNHCR's new evaluation of the security situation and the possibility of internal protection in Sri Lanka was a new fact. The question which the court had to consider was whether the new fact was also likely to be such a persistent obstacle to enforcement under Chapter 12.1, 2 or 3 § Aliens Act.

The Migration Court of Appeal pointed out that in an earlier ruling (MIG 2007:33) it had noted that UNHCR reports are an important source of guidance, but that its recommendations are not Swedish law. In the case of Sri Lanka, UNHCR had determined that persons who were wanted by the LTTE or other groups were to be considered refugees and that even other persons who did not meet the criteria for refugee status under the Convention should be granted protection because of the situation and the widespread violence in northern and eastern Sri Lanka. No internal protection was available for these groups because of persecution by both the LTTE and the authorities. In the report by the UK Home Office Immigration Service, which the Migration Board relied on it is stated that the authorities in Sri Lanka wanted and were able to offer protection to Tamils in the areas authorities’ controlled, except for people who had held high positions in the LTTE. The report did not share the UNHCR's view that there was no internal protection alternative.

The Migration Court of Appeal considered that in view of the findings on the situation in Sri Lanka and that the applicant belonged to that group that the UNHCR believed should be granted protection, there was reason to believe that there could be a permanent impediment to enforcement. There was therefore reason to grant a new assessment pursuant to Chapter 12. § 19 Aliens Act.

Outcome:

The Migration Court of Appeal allowed the appeal and submitted the case to the Migration Board for re-examination of the issue of granting a residence permit.

Other sources:

UNHCR Position on the International Protection Needs of Asylum-Seekers From Sri Lanka, 22 December 2006