RS (Sri Lanka) v Secretary of State: Reasonable likelihood that escaped detainee faces risk in the event of return

Monday, October 28, 2019

On 28 October 2019, the Court of Appeal published its ruling on RS (Sri Lanka) EWCA Civ 1796 concerning the refusal to grant international protection status to a Sri Lankan national who had escaped detention.  
The applicant, a Sri Lankan national, was detained following the end of the Sri Lankan civil war for 18 months, during which time he was tortured due to his association with the Tamil separatist organisation (LTTE). RS escaped from detention and used forged documents to travel to the UK, where he made an asylum application in May 2013. In July 2014, the application was rejected and the Secretary of State issued a notice of refusal of leave to enter.

RS argued that the First Tier Tribunal (FTT) and Upper Tribunal (UT) had made an error of law in considering his appeal as they had failed to give proper consideration to the fact that the applicant had escaped from detention when assessing the potential risk faced upon return. It was therefore argued, inter alia, that as an escaped detainee, RS would naturally be of more interest to Sri Lankan authorities upon return. It was further argued that the Court had previously ruled in the GJ and Others that those taken into detention in Sri Lanka faced the risk of physical abuse. Indeed, the injuries sustained by the applicant were consistent with evidence that he had already suffered torture at the hands of the Sri Lankan army.

In ruling, the Court noted, inter alia, that the central question in the case was whether the FTT had made an error of law in failing to identify the risk upon return. Indeed, the Court determined that the FTT had overlooked the possibility of a risk by failing to afford sufficient weight to the fact that RS had not been released but escaped from detention. There was therefore every reason to expect that an arrest warrant would be issued upon return. In light of this, it was held that the UT was wrong not to allow the appeal. As a result, the Court concluded that there was no need to show that RS was of interest to Sri Lankan authorities, but that there was a reasonable likelihood that this would be the case. The appeal was therefore allowed.

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is pusexblished but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.



Persecution Grounds/Reasons
Real risk
Standard of proof