{"id":7377,"date":"2018-05-02T21:05:44","date_gmt":"2018-05-02T21:05:44","guid":{"rendered":"https:\/\/namathueelanadu.com\/?p=7377"},"modified":"2018-05-30T20:54:39","modified_gmt":"2018-05-30T20:54:39","slug":"the-tamils-have-new-grounds-for-asylum-even-if-their-refugee-claims-refused","status":"publish","type":"post","link":"https:\/\/namathueelanadu.com\/?p=7377","title":{"rendered":"The Tamils have new grounds for asylum even if their Refugee Claims refused"},"content":{"rendered":"
\"image_pdf\"PRINT<\/span><\/a><\/div>

\u00a0<\/span>A <\/span><\/span>big<\/span><\/span><\/strong> achievement by the Tamil lawyers in the European Court of Justice<\/strong> <\/span><\/span><\/h4>\n

On last Tuesday the 24<\/span><\/span>th<\/span><\/span> April 2018, t<\/span><\/span>he European Court of Justice (ECJ) ruled <\/span><\/span>that the third country nationals who had been<\/span><\/span> tortured <\/span><\/span>in the past <\/span><\/span>by the authorities <\/span><\/span>of their <\/span><\/span>country of origin <\/span><\/span>would be<\/span><\/span> eligible for <\/span><\/span>asylum known as <\/span><\/span>subsidiary protection <\/span><\/span>when<\/span><\/span> it <\/span><\/span>was<\/span><\/span> justified<\/span><\/span> that <\/span><\/span>there <\/span><\/span>could be<\/span><\/span> a <\/span><\/span>real risk of them being intentionally deprived of <\/span><\/span>appropriate care for the<\/span><\/span>ir\u00a0<\/span><\/span>ph<\/span><\/span>ysical and mental after-effects of that<\/span><\/span> torture<\/span><\/span> if <\/span><\/span>they were <\/span><\/span>returned. <\/span><\/span>T<\/span><\/span>he European Court of Justice ruled as such in a case advanced by Barrister <\/span><\/span>Arun<\/span><\/span> Gananathan<\/span><\/span> and legal advisor\u00a0<\/span><\/span>Geeth\u00a0<\/span><\/span>Kulasegaram<\/span><\/span>. The case <\/span><\/span>involve<\/span><\/span>s<\/span><\/span> an Eelam Tamil. \u00a0 <\/span><\/span><\/h4>\n

The <\/span><\/span>European Court of Justice<\/span><\/span> admits, If a<\/span><\/span> person seeking <\/span><\/span>protection\u00a0<\/span><\/span>under the European Convention on Human Rights<\/span><\/span> was<\/span><\/span> found <\/span><\/span>tortured by the authorities <\/span><\/span>of<\/span><\/span> his <\/span><\/span>country of origin <\/span><\/span>in the past <\/span><\/span>and <\/span><\/span>whose physical and psychological health could seriously deteriorate leading to a serious risk of committing suicide on account of <\/span><\/span>the <\/span><\/span>trauma resulting from the <\/span><\/span>past <\/span><\/span>torture <\/span><\/span>would be<\/span><\/span> eligible for subsidiary protection <\/span><\/span>even <\/span><\/span>though he<\/span><\/span> would <\/span><\/span>no longer fa<\/span><\/span>ce<\/span><\/span> a risk of being tortured <\/span><\/span>again <\/span><\/span>if returned to that country<\/span><\/span>. However, <\/span><\/span>it <\/span><\/span>further clarifies that it <\/span><\/span>was<\/span><\/span> a matter for the<\/span><\/span> national courts of the European member states <\/span><\/span>to determine if there could be a real risk <\/span><\/span>that\u00a0<\/span><\/span>the <\/span><\/span>appropriate <\/span><\/span>medical <\/span><\/span>care for the physical and mental after-effects of that torture <\/span><\/span>would be withheld <\/span><\/span>in his country of origin<\/span><\/span>.<\/span><\/span><\/p>\n

Case Background<\/span><\/span><\/strong><\/p>\n

The <\/span><\/span>petitioner<\/span><\/span> of this case is an Eelam Tamil who was tortured by the Sri Lankan authorities in the past <\/span><\/span>as<\/span><\/span> he <\/span><\/span>had been a member of the\u00a0<\/span><\/span>Liberation Tigers of Tamil Eelam. The<\/span><\/span> petitioner<\/span><\/span>,<\/span><\/span> for his <\/span><\/span>own <\/span><\/span>safety<\/span><\/span>, <\/span><\/span>identified in ECR documents as “MP”<\/span><\/span> instead of his real name <\/span><\/span>arrived in Britain in 2005 as a student<\/span><\/span>. He<\/span><\/span> applied for political asylum in 2009 <\/span><\/span>since<\/span><\/span> he <\/span><\/span>couldn\u2019t<\/span><\/span> return to Sri Lanka <\/span><\/span>for the reason\u00a0<\/span><\/span>that there was a <\/span><\/span>real <\/span><\/span>threat to his life. <\/span><\/span><\/p>\n

Moreover he mentioned in his application that he was suffering from Post-traumatic Stress Disorder and Depression due to the tortures he underwent in Sri Lanka. <\/span><\/span><\/p>\n

\"\"<\/a>Though MP\u2019s asylum application was initially rejected<\/span><\/span>,<\/span><\/span> owing to the hard work of Barrister <\/span><\/span>Arun<\/span><\/span> Gananathan<\/span><\/span>, <\/span><\/span>his case was <\/span><\/span>chosen<\/span><\/span> as a<\/span><\/span>n example<\/span><\/span> case <\/span><\/span>and accepted as one of the country guidance cases<\/span><\/span> for Sri Lanka. Subsequently, s<\/span><\/span>everal appeal hearings brought the case before Britain’s Supreme Court<\/span><\/span>. His lawyers <\/span><\/span>argued<\/span><\/span> in the Supreme Court that the British government must make a new policy for the grant of asylum <\/span><\/span>for<\/span><\/span> those who were <\/span><\/span>psychologically victimized <\/span><\/span>like him <\/span><\/span>due to the tortures.<\/span><\/span><\/p>\n

The Britain\u2019s Supreme Court upon hearing this case <\/span><\/span>asked the Luxembourg-based court to rule on the scope of the EU’s 2004 directive that\u00a0s<\/span><\/span>ets minimum standards known as <\/span><\/span>subsidiary <\/span><\/span>protection <\/span><\/span>for<\/span><\/span> third country nationals or stateless persons.<\/span><\/span> Accordingly, a team of lawyers at the helm of Barrister, <\/span><\/span>Arun<\/span><\/span> Gananathan<\/span><\/span> have successfully <\/span><\/span>argued<\/span><\/span> the case before the European Court of Justice. \u00a0<\/span><\/span><\/p>\n

Last Tuesday, the European Court of Justice in its Judgment clarified that the tortured victims would be able to claim <\/span><\/span>the asylum known as <\/span><\/span>Subsidiary Protection <\/span><\/span>even if their refugee claim had been rejected. <\/span><\/span>In this particular case of MP, <\/span><\/span>It has further <\/span><\/span>said <\/span><\/span>that <\/span><\/span>it was <\/span><\/span>then<\/span><\/span> up <\/span><\/span>to <\/span><\/span>the British justice to decide\u00a0whether his health would be endangered by lack of adequate <\/span><\/span>medical care<\/span><\/span> on <\/span><\/span>his <\/span><\/span>return<\/span><\/span>. <\/span><\/span>\u00a0 <\/span><\/span><\/p>\n

Subsidiary Protection<\/span><\/span><\/strong><\/p>\n

Previously, u<\/span><\/span>nder <\/span><\/span>the 2004 EU directives, the term subsidiary protection<\/span><\/span>\u00a0applies to a third country national\u00a0or a stateless person\u00a0who doe<\/span><\/span>s not qualify as a refugee but <\/span><\/span>would face a real risk of suffering <\/span><\/span>or serious harm<\/span><\/span> such as the death penalty or execution, torture, or serious threat if <\/span><\/span>returned<\/span><\/span> to the country of origin.<\/span><\/span> Now, the concerns of medical care<\/span><\/span> and treatment<\/span><\/span> are<\/span><\/span> also necessitated <\/span><\/span>by the judgment in view of <\/span><\/span>\u201cthe European Convention on Human Rights\u201d<\/span><\/span><\/p>\n

Advocate General Yves <\/span><\/span>Bot<\/span><\/span><\/strong><\/p>\n

Yves <\/span><\/span>Bot<\/span><\/span>, one of 11 advocate<\/span><\/span> general<\/span><\/span>s<\/span><\/span> in the European Court of Justice <\/span><\/span>in his opinion<\/span><\/span> wrote<\/span><\/span> and <\/span><\/span>submitted last October<\/span><\/span>, <\/span><\/span>\u201c<\/span><\/span>If returned, he seemed suicidal and determined to kill himself<\/span><\/span>\u201d<\/span><\/span>. <\/span><\/span><\/p>\n

Bot<\/span><\/span> said <\/span><\/span>that<\/span><\/span> Sri Lanka<\/span><\/span>,<\/span><\/span> as the nation accused of committing the torture <\/span><\/span>was required under the <\/span><\/span>\u201c<\/span><\/span>1984<\/span><\/span> international Convention\u00a0<\/span><\/span>against Torture<\/span><\/span>\u201d<\/span><\/span> to provide rehabilitat<\/span><\/span>ion and redress to the claimant and<\/span><\/span> in the event of h<\/span><\/span>is death<\/span><\/span> to his dependents.<\/span><\/span><\/p>\n

He further said, the inadequacy<\/span><\/span> of Sri Lanka’s h<\/span><\/span>ealth system was not contested and it was solely <\/span><\/span>up to <\/span><\/span>the<\/span><\/span> EU member state\u2019s <\/span><\/span>national <\/span><\/span>court to assess whether the man<\/span><\/span> would remain protected from ill-health in terms of<\/span><\/span> the ECHR if returned.<\/span><\/span><\/p>\n

Bot<\/span><\/span> wrote<\/span><\/span>,<\/span><\/span> it<\/span><\/span> is <\/span><\/span>an <\/span><\/span>established case-law that the application of EU law must be independent of that of <\/span><\/span>the <\/span><\/span>international humanitarian law<\/span><\/span>. T<\/span><\/span>he <\/span><\/span>international<\/span><\/span> la<\/span><\/span>w and the 2004<\/span><\/span> EU<\/span><\/span> directive pursue <\/span><\/span>different aims and establish <\/span><\/span>quite<\/span><\/span> distinct protection mechanism<\/span><\/span>s<\/span><\/span>.<\/span><\/span><\/p>\n

Geeth<\/span><\/span> Kulasegaram<\/span><\/span><\/strong><\/p>\n

\"\"<\/a>Geeth<\/span><\/span> Kulasegaram<\/span><\/span>, one of the legal experts<\/span><\/span>\u00a0who worked hard for the success of this case<\/span><\/span> in his opinion said, \u201c<\/span><\/span>Even though this judgment is beneficial to all the ethnic people who come to Europe from any <\/span><\/span>country in the world <\/span><\/span>seek<\/span><\/span>ing<\/span><\/span> to claim <\/span><\/span>their<\/span><\/span> asylum<\/span><\/span> it<\/span><\/span> gives a great <\/span><\/span>relief<\/span><\/span> to<\/span><\/span> the Tamil asylum seekers<\/span><\/span> in particular<\/span><\/span>.<\/span><\/span> The Tamils who were tortured <\/span><\/span>in the past <\/span><\/span>and escaped from the torture camps have been seeking asylum in the western countries. However<\/span><\/span>,<\/span><\/span> many of them are <\/span><\/span>being distressed <\/span><\/span>in such a situation that they are to be deported back to Sri Lanka as their claims refused on various grounds. <\/span><\/span>Many of them are suffering from severe physical and physiological health issues. Accordingly, <\/span><\/span>this judgment opened a new way for <\/span><\/span>those r<\/span><\/span>ejected<\/span><\/span> refugee claimants who are h<\/span><\/span>iding in the EU countries to have this sort of <\/span><\/span>protection<\/span><\/span> by making a fresh claim.<\/span><\/span>\u201d<\/span><\/span> \u00a0<\/span><\/span> \u00a0<\/span><\/span><\/p>\n

He further added, <\/span><\/span>\u201cThis judgment ruled by the European Court of Justice gives a great relief and contentment for <\/span><\/span>the Tamils<\/span><\/span> who were <\/span><\/span>seeking asylum in the <\/span><\/span>EU as<\/span><\/span> they are <\/span><\/span>badly <\/span><\/span>affected due to the tortures <\/span><\/span>of<\/span><\/span> Sri Lankan state<\/span><\/span>. Barrister, <\/span><\/span>Arun<\/span><\/span> Gananathan<\/span><\/span> must be <\/span><\/span>appreciated<\/span><\/span> for successfully <\/span><\/span>handling<\/span><\/span> this case in such a way that it is <\/span><\/span>helpful<\/span><\/span> not only <\/span><\/span>for<\/span><\/span> the Tamils <\/span><\/span>but also for<\/span><\/span> the <\/span><\/span>asylum claimants of all the ethnic groups in t<\/span><\/span>he world who had undergone <\/span><\/span>torture. <\/span><\/span>The <\/span><\/span>Tamil <\/span><\/span>Ethnic nation would be proud of him for this achievement.\u201d<\/span><\/span><\/p>\n

For more information<\/span><\/span><\/strong><\/p>\n

http:\/\/curia.europa.eu\/juris\/document\/document.jsf?text=&docid=201403&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=358836\u00a0<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

\u00a0A big achievement by the Tamil lawyers in the European Court of Justice On last Tuesday the 24th April 2018, the European Court of Justice (ECJ) ruled that the third country nationals who had been tortured in the past by the authorities of their country of origin would be eligible for asylum known as subsidiary 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subsidiary…","_links":{"self":[{"href":"https:\/\/namathueelanadu.com\/index.php?rest_route=\/wp\/v2\/posts\/7377","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/namathueelanadu.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/namathueelanadu.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/namathueelanadu.com\/index.php?rest_route=\/wp\/v2\/users\/40"}],"replies":[{"embeddable":true,"href":"https:\/\/namathueelanadu.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=7377"}],"version-history":[{"count":7,"href":"https:\/\/namathueelanadu.com\/index.php?rest_route=\/wp\/v2\/posts\/7377\/revisions"}],"predecessor-version":[{"id":8038,"href":"https:\/\/namathueelanadu.com\/index.php?rest_route=\/wp\/v2\/posts\/7377\/revisions\/8038"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/namathueelanadu.com\/index.php?rest_route=\/wp\/v2\/media\/7255"}],"wp:attachment":[{"href":"https:\/\/namathueelanadu.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=7377"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/namathueelanadu.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=7377"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/namathueelanadu.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=7377"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}