The applicant is Tamil who claimed asylum in the UK on grounds he feared persecution by the Sri Lankan army due to his involvement with the LTTE. Before the ECtHR it was common ground that he had been detained, and ill-treated by the army in 1996 because of his LTTE involvement.
The First Tier Tribunal accepted that scaring on his scalp, legs and elbows were caused by shell fragments but noted they were not readily visible, and so would not cause the applicant to stand out. In essence the Tribunal held the applicant was of no current interest to the Sri Lankan authorities.
Applicability of CG cases and Country evidence
The ECtHR considered a range of country evidence, and in light of that viewed the current situation in Sri Lanka to be accurately set out in TK (Tamils–LP updated) Sri Lanka CG  UKAIT 00049.
The Court also took note of the country evidence issued since TK- specifically the November 2010 COI report, detailing the relaxation of certain procedures at Colombo airport, and the July 2010 UNHCR Guidelines stating that given the improved situation group-based protection is no longer necessary; each case should be assessed on its individual merits with regard to “risk profiles.”
It went on to find that the risk factors identified in LP (LTTE area–Tamils-Colombo–risk?) Sri Lanka CG  UKAIT 00076 endorsed by the ECtHR in NA v. the United Kingdom continued to apply, but noted that because the conflict had ended, the likelihood of a Tamil being the subject of adverse interest on return to Colombo had probably declined.
Drawing on all these sources the majority identified eight “background risk factors” (see AN & SS (Tamils – Colombo – risk?) Sri Lanka CG  UKAIT 00063) that were applicable to the appellant: (1) Tamil ethnicity; (2) asylum claim; (3) return from London; (4) probable lack of ID; (5) previous LTTE membership; (6) active nature of that membership; (7) previous arrest because of LTTE involvement; (8) scarring on scalp, legs and elbows.
Crucially, the ECtHR concluded failing to report, was not the same as having jumped bail or escaping custody (“risk factor per se”-AN & SS); subsequent travel through Sri Lanka, including checkpoints, without problems demonstrated a lack of state interest. Additionally, although he bore scars these were not readily identifiable and the applicant had not engaged in LTTE activity for 10 years. Accordingly, there was no real risk of Article 3 treatment on return to Colombo.
Contrary to the majority, two judges including the President found the eight background risk factors cumulatively established a genuine risk.
The minority added that while the applicant did not jump bail or escape from custody, a condition of his release was to report regularly to the army camp and because he failed to comply, his situation was analogous to those two other scenarios.
They also stressed that the medical evidence described the appellant’s scars as ‘significant and visible’ (contrary to the majority who, like the tribunal, attached limited weight to the medical report).
The minority explained what rests at the core of judgments about future risk, specifically where such judgments are finely balanced. They stated:
We agree that, with some luck, the applicant may avoid arrest and detailed investigation on his arrival at Colombo airport. We are not sure, however, that our understanding of human rights allows us to make someone’s fate contingent on being lucky in relation to the authorities rather than on a reliable assessment of the probability of the risk faced in the specific individual circumstances…
… Of course, any assessment of the risks and consequences of deportation is speculative. That is why, a “lesser evil / lesser risk” approach may be proposed. If the applicant is not deported, even if there is no genuine risk of ill-treatment, theUnited Kingdomwould be compelled to tolerate an illegal immigrant it does not want to keep on its soil. If the applicant is deported and if the risk of ill-treatment is genuine, he would at best be exposed to inhuman and degrading treatment by the Sri Lankan authorities.
In both situations an error of assessment would have negative consequences. The only difference is that if the former scenario materialises, the United Kingdom is likely to survive our mistake; whereas if the latter scenario comes true, the applicant may not survive. This difference leads us to the conclusion that we cannot afford any experimentation in this case.