Sri Lanka: Situation and treatment of returnees, including failed asylum seekers (2020–March 2022) [LKA200988.E]

Research Directorate, Immigration and Refugee Board of Canada

1. Overview

According to a report by the Sri Lanka government that was submitted to the UN Human Rights Committee, as of 30 September 2018, 4,870 refugees of Sri Lankan origin had returned to the country with 102,000 remaining in India, and 2,216 Internally Displaced Persons (IDPs) "to be resettled" remained in IDP camps in Jaffna (Sri Lanka 25 Apr. 2019, para. 57–58). The UN notes that as of November 2020, the UNHCR was assisting 207 refugee returnees, 619 IDPs who have returned and 25,110 IDPs (UN 30 Nov. 2020, 2). According to a country information report on Sri Lanka from the Australian Department of Foreign Affairs and Trade (DFAT), as of September 2021 the International Organization for Migration (IOM) reported 107 returnees for 2021 (Australia 23 Dec. 2021, para. 5.18).

2. Legislation

The DFAT report notes that individuals who leave Sri Lanka irregularly, either without a valid passport or without using an approved port of departure, have committed an offence under the Immigrants and Emigrants Act (Australia 23 Dec. 2021, para. 5.21). The Immigrants and Emigrants Act provides the following:

34. No person to whom this Part applies shall leave Sri Lanka from any place other than an approved port of departure.

35. No person to whom this Part applies shall-

  1. if he is a citizen of Sri Lanka, leave Sri Lanka unless he has in his possession a Sri Lanka passport; or
  2. if he is not a citizen of Sri Lanka, leave Sri Lanka unless he has in his possession a valid passport;

Provided, however, that any person to whom this Part applies and who belongs to any prescribed class or description of persons, shall not be deemed to contravene the preceding provisions of this section if he leaves Sri Lanka under the authority of a certificate in the prescribed form and issued to him by a prescribed officer. (Sri Lanka 1949)

3. Treatment by Authorities
3.1 Treatment of the Diaspora

Human Rights Watch (HRW) states that in February 2021, the government published a list "proscribing several 'terrorist organizations'" and naming "several hundred" individuals as "'terrorists'," which included diaspora groups advocating at the UN Human Rights Council and Tamil activists in the diaspora (HRW 7 Feb. 2022, 7). In an interview with the Research Directorate, an analyst covering Sri Lanka with International Crisis Group, speaking on their own behalf, stated that government organizations "regularly" denounce Tamil diaspora organizations as fronts for the Liberation Tigers of Tamil Eelam (LTTE) (Analyst 24 Mar. 2022). According to a summary of an August 2020 report by Suthaharan Nadarajah, a lecturer of international relations at the School of Oriental and African Studies (SOAS) University of London who has conducted research on Sri Lankan politics, written and cited by the UK Upper Tribunal's Immigration and Asylum Chamber in a decision analyzing the UK's country guidance on Sri Lanka, the Sri Lankan government perceives "political activities" by members of the Tamil diaspora as a "'primary threat'" to "'territorial integrity and national security'" (UK 27 May 2021, para. 83, 84, 85). Nadarajah is further cited as stating that the authorities "'conflat[e]'" advocating for Tamil issues with '"LTTE resurgence and Tamil separatism'" (UK 27 May 2021, para. 90).

According to a report from the International Truth and Justice Project (ITJP), an independent, non-profit organization based in South Africa that collects and documents evidence of "war crimes and ongoing human rights violations" in Sri Lanka (ITJP n.d.), since Gotabaya Rajapaksa was elected [in 2019], a "new trend" of "mapping the extended family network of Tamils" has begun (ITJP 8 Sept. 2021, 13). According to the same source, family members of ex-LTTE members living abroad have been questioned "on the same days in different parts of [Sri Lanka]," about their relationships to "people abroad" (ITJP 8 Sept. 2021, 13). The ITJP report further states that there has been "a concerted surveillance effort" within the country and at diaspora events around the world; since 2019 there have also been "signs of a more sophisticated intelligence operation abroad, including infiltration attempts, spoofing and impersonation and entrapment attempts" (ITJP 8 Sept. 2021, 13). According to an article from the Tamil Guardian, a news website covering Tamil issues, "Sri Lanka's embassies are … heavily invested in carrying out surveillance of, and advocating against Tamil communities in the diaspora" (Tamil Guardian 27 Mar. 2021). In a summary of an August 2020 report by Chris [Christopher] Smith, a freelance consultant who was also a senior research fellow at the University of London [from 2016 to 2019 (University of London n.d.)] (UN 5 Apr. 2019), as written in the UK Upper Tribunal decision, Smith noted that based on information provided in 2018 and 2019 by a "security source,"

authorities gather information on diaspora activities by the use of infiltrators, informants, and other forms of surveillance such as taking photographs at demonstrations. All such intelligence is sent back to the Ministry of Foreign Affairs and then on to relevant intelligence sections within the [State Intelligence Service (SIS), Terrorism Investigation Division (TID), Criminal Investigation Department (CID)], and the Ministry of Defence. Information gathered by informants is handed over to the Defence Attaché in the [Sri Lanka High Commission] whose job description specifically includes, amongst other things, the monitoring and notification of anti-government activities in the United Kingdom. The Defence Attaché files a weekly report back to the Chief of National Intelligence in Sri Lanka whereupon further analysis is conducted. (UK 27 May 2021, para. 34, 50)

3.2 Treatment of Returnees and Failed Asylum Seekers

In an interview with the Research Directorate, a professor at an American university who focuses on South Asian politics stated that asylum seekers are viewed as having "undermined or shamed the country" and that returnees who sought asylum are viewed as "traitors" (Professor 18 Mar. 2022). In correspondence with the Research Directorate, the Executive Director of Law & Society Trust (LST), a not-for-profit "engaged in legal research, advocacy and human rights documentation" (LST n.d.), noted that there is "resentment and antipathy" toward both Tamil refugees and Tamil asylum seekers as the government believes that they have "aired negative views about Sri Lanka and the government abroad" (Executive Director 15 Mar. 2022).

The Professor noted that there is a database with people on a watch list (Professor 18 Mar. 2022). Citing the summary of Smith's report, the UK Upper Tribunal decision states that as of 2016 all police stations in Sri Lanka "appear … to have become" "electronically networked" and SIS has a "parallel electronic network" (UK 27 May 2021, para. 37). Smith, citing an SIS source, also noted that the database, which is the basis for a "stop" list [for arrests/detentions] and a "watch" list [for surveillance], contains "many thousands of names" and can be accessed at the airport (UK 27 May 2021, para. 38). In a follow-up interview with the UK Upper Tribunal, Smith, citing information obtained in 2019 from a security officer, stated that the stop list includes those with an existing warrant and that those on the watch list will be allowed to leave the airport, but the local authorities in their area of residence will be notified of their return (UK 27 May 2021, para. 73). A summary of oral evidence provided to the UK Upper Tribunal by Rohan Gunaratna, a professor of security studies at Nanyang Technology University in Singapore who has conducted research on the LTTE, indicates that the database is "'detailed and elaborate'"; while there is a "'gradient'" with those suspected of more serious crimes, such as obtaining weapons, "treated more harshly," "even those at a low level would not be tolerated"; everyone in the database would "'certainly' be detained" (UK 27 May 2021, para. 116, 130). According to the DFAT report, upon arrival failed asylum seekers will be interviewed by the Chief Immigration Officer and depending on their "personal history" and the conditions under which they left Sri Lanka, they "may" also be interviewed by the Criminal Investigation Department (CID), SIS and Sri Lankan Navy Intelligence (SLNI) which will "check travel documents and identity information against the immigration databases, intelligence databases and records of outstanding criminal matters"; individuals who left illegally will be referred to the CID and charged, then taken to court, bailed, and released (Australia 23 Dec. 2021, para. 5.17).

According to the Professor, Tamil or Muslim individuals have a "greater" chance of being on the watch list (Professor 18 Mar. 2022). The summary of Smith's report cited in the UK Upper Tribunal decision indicates that Tamil returnees who were "'active in the diaspora'" would be "high, if not top, of the 'list'" (UK 27 May 2021, para. 39).

The Analyst noted that there have been "credible allegations" over the years of people thought to have connections to the LTTE being arrested, detained and tortured and there is "deep mistrust" among security forces of Tamil returnees (Analyst 24 Mar. 2022). The Professor stated that if there is a reason for the authorities to believe the person was connected to the LTTE during the war, even for something such as transporting goods for a Tamil person that they did not know was connected to the LTTE, they are "taken into custody and tortured, [and face] extortion" (Professor 18 Mar. 2022). The Executive Director noted that "there are reports" that asylum seekers have been questioned by security personnel (Executive Director 15 Mar. 2022). According to the Professor, individuals who have been forced to return, provided the authorities have been notified of their arrival, face "vary[ing]" "degrees of harassment," depending on their ethnicity, how long they have been away, whether they are on a watchlist and whether they are perceived to have ties with the LTTE (Professor 18 Mar. 2022). The same source added that "ethnicity matters" and Tamils face "more scrutiny," especially those who are failed asylum seekers (Professor 18 Mar. 2022). In correspondence with the Research Directorate, a sessional lecturer at a Canadian university, who has conducted field work in Sri Lanka with a research focus on conflict prevention and peacebuilding, noted that in their view, drawing on research compiled by NGOs and the country guidance from the UK Upper Tribunal decision, returnees involved in Tamil diaspora activism, such as being a member of a diaspora organization or attending a protest, and that individuals with "any association" with the LTTE, are "at risk of persecution on return to Sri Lanka" (Sessional Lecturer 28 Mar. 2022). According to the DFAT report, local sources have indicated that "some" returnees, particularly individuals in the North and East with suspected LTTE links, are monitored by the authorities, including visits to their home and telephone calls by the CID (Australia 23 Dec. 2021, para. 5.29).

4. Treatment by Society

Information on the treatment of returnees by society was scarce among the sources consulted by the Research Directorate within the time constraints of this Response.

According to the Professor, in "every" village there are people who will alert the authorities to the individuals entering the village, making it impossible to remain hidden (Professor 18 Mar. 2022). The DFAT report notes that "some" returnees are "pressured" by their communities for receiving financial assistance for reintegration and others experienced "resentment" due to the money spent on their failed attempt to leave the country (Australia 23 Dec. 2021, para. 5.31).

5. Reintegration of Returnees

The DFAT report notes that returnees face "practical challenges" upon return, including debt from the cost of leaving; difficulties in finding employment and housing; and delays in receiving identity documents, which limit access to social welfare programs, education and employment (Australia 23 Dec. 2021, para. 5.28, 5.30). The same report states that "[s]ome" voluntary returnees receive assistance from the government, the UN and NGOs, but this assistance requires individuals to meet "strict" eligibility requirements and offers "minimal" support (Australia 23 Dec. 2021, para. 5.28). The Executive Director indicated that refugee that have come back from India as part of planned repatriation say that they receive "little support" (Executive Director 15 Mar. 2022). According to the US Department of State's Country Reports on Human Rights Practices for 2021, "[t]he government cooperated with the [UNHCR] and other humanitarian organizations in providing protection and assistance to IDPs, refugees, returning refugees, stateless persons, and other persons of concern" (US 12 Apr. 2022, 31). The same source also notes that IDPs have "full freedom of movement," but "most" are not able to return home due to

land mines; restrictions designating their home areas as part of [High Security Zones]; lack of economic opportunities; inability to access basic public services, including acquiring documents verifying land ownership; lack of government resolution of competing land ownership claims; and other war-related reasons. (US 12 Apr. 2022, 30)

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.

References

Analyst, International Crisis Group. 24 March 2022. Interview with the Research Directorate.

Australia. 23 December 2021. Department of Foreign Affairs and Trade (DFAT). DFAT Country Information Report: Sri Lanka. [Accessed 30 Mar. 2022]

Executive Director, Law & Society Trust (LST). 15 March 2022. Correspondence with the Research Directorate.

Human Rights Watch (HRW). 7 February 2022. "In a Legal Black Hole": Sri Lanka's Failure to Reform the Prevention of Terrorism Act. [Accessed 29 Mar. 2022]

International Truth and Justice Project (ITJP). 8 September 2021. Yasmin Sooka and Frances Harrison. Sri Lanka: Torture and Sexual Violence by Security Forces 2020-2021. [Accessed 28 Mar. 2022]

International Truth and Justice Project (ITJP). N.d. "About." [Accessed 31 Mar. 2022]

Law & Society Trust (LST). N.d. "About Us." [Accessed 1 Apr. 2022]

Professor, a university in the US. 18 March 2022. Interview with the Research Directorate.

Sessional Lecturer, a university in Canada. 24 March 2022. Correspondence with the Research Directorate.

Sri Lanka. 25 April 2019. Sixth Periodic Report Submitted by Sri Lanka Under Article 40 of the Covenant, Due in 2017. (CCPR/C/LKA/6) [Accessed 30 Mar. 2022]

Sri Lanka. 1949. Immigrants and Emigrants Act. [Accessed 1 Apr. 2022]

Tamil Guardian. 27 March 2021. "Sri Lanka Proscribes Hundreds Alongside Tamil Diaspora Organisations." [Accessed 5 Apr. 2022]

United Kingdom (UK). 27 May 2021. Upper Tribunal, Immigration and Asylum Chamber. KK and RS (Sur Place Activities: Risk) Sri Lanka CG UKUT 130 (IAC) of 2021. [Accessed 28 Mar. 2022]

United Nations (UN). 30 November 2020. UN High Commissioner for Refugees (UNHCR). Fact Sheet: Sri Lanka. [Accessed 30 Mar. 2022]

United Nations (UN). 5 April 2019. UN Development Programme (UNDP). "Dr Christopher Smith – Freelance Consultant & Senior Research Fellow, Inst. of Commonwealth Studies, London on How Do We Better Integrate These Groups in #LKA." [Accessed 27 Apr. 2022]

United States (US). 12 April 2022. Department of State. "Sri Lanka." Country Reports on Human Rights Practices for 2021. [Accessed 27 Apr. 2022]

University of London. N.d. School of Advanced Study. "Dr. Chris Smith." [Accessed 27 Apr. 2022]

Additional Sources Consulted

Oral sources: Adayaalam Centre for Policy Research; American Institute of Sri Lankan Studies; Amnesty International – representative in Canada; Centre for Policy Alternatives; Council of NGOs – Jaffna District; Front Line Defenders; INFORM Human Rights Documentation Centre; International Truth and Justice Project; Journalists for Democracy in Sri Lanka; lecturer in conflict and justice with a research focus on Sri Lanka at a university in the UK; lecturer in political science at a Sri Lankan university; The National Peace Council of Sri Lanka; People for Equality and Relief in Lanka; professor at an American university with a research focus on politics and security in South Asia; professor at a UK university with a research focus on peace and conflict studies and research experience in South Asia; professor of conflict analysis at an American university with specialization in Sri Lanka; Sri Lanka – Human Rights Commission of Sri Lanka; UN – UNHCR.

Internet sites, including: Amnesty International; Asylum Research Centre; BBC; Belgium – Commissariat général aux réfugiés et aux apatrides; Bertelsmann Stiftung; Centre for Policy Alternatives; Challenges; The Conversation; Daily Financial Times; Daily Mirror; Denmark – Danish Immigration Service; ecoi.net; EU – European Commission, EU Agency for Asylum; Factiva; Fédération internationale pour les droits humains; France – Office français de protection des réfugiés et apatrides; Free Movement; International Crisis Group; IRARA; Minority Rights Group International; The New Humanitarian; News.lk; Observer Research Foundation; openDemocracy; South Asia Terrorism Portal; Sri Lanka – Department of Census and Statistics, Permanent Mission of Sri Lanka to the UN; Tamil Refugee Council; UK – Home Office, Travel Document Information Guide; UN – International Organization for Migration, UN News; Voice of America; World Bank.