An Insignificant Change: The Review and Potential Withdrawal of Tamil Refugee Status in the UK

Guest post by Rachel Seoighe, Lecturer in Criminology (human rights and criminal justice), Department of Criminology and Sociology, School of Law, Middlesex University. Rachel is on Twitter @racheladrianne. This is the eighth instalment of Border Criminologies’ themed series on 'Seeking Refuge in Europe' organised by Monish Bhatia.

Sri Lankan Tamil refugees in the UK have begun to receive letters from the Home Office’s Deprivation & Revocation Team informing them that the Secretary of State is ‘considering ceasing’ their refugee status. These letters are arriving at the doors of refugees who were granted, as is now standard practice under the Immigration Rules, a five-year term of leave to remain rather than indefinite leave to remain. The latter, more concrete status was the result of a successful pre-2005 application for refugee status. Today, the official awarding of refugee status is marked by uncertainty. That status is subject to ‘review’ at any time, dependent on a number of factors within and outside of the refugee’s control, from her own conduct to the political and social realities of her country of origin. An automatic review is carried out to ascertain the refugee’s continuing right to refuge at the end of the initial five-year term.

There are indications that the Home Office is beginning to carry out these reviews more systematically, driven by the state’s irrepressible impulse to expel and eject non-nationals. In the current political climate, the populist politics of exclusion marks out (in racialised and xenophobic ways) ‘enemies’ and ‘threats’ to British values and security alike. It is perhaps unsurprising that the state’s focus has expanded beyond dramatically limiting and qualifying the claims of incoming immigrants and asylum seekers to dismantling the protections already granted. The post-2005 creation of a type of ‘probationary’ refugee status works to continuously exclude and marginalise those seeking sanctuary by actively undermining the rights of those recognised as ‘genuine’ refugees and unsettling their ability to build lives in the UK long-term. The ‘bad’ immigrants – those framed as ‘bogus,’ ‘fraudulent,’ ‘illegal’ and ‘economic’ - have been under popular attack for some time. Now the ‘good’ ones, the ‘real’ refugees - who have proven their claims through evidence of their ordeals and have managed to surmount the significant bureaucratic challenges and culture of disbelief within the asylum application system - are subject to continuous review and threat of removal for a further five years.

The already lengthy and arduous process of seeking asylum, during which time asylum seekers suffer financial and social hardship and exclusion, is extended further past the actual grant of asylum. Certainty and permanency is further from grasp; refugees are suspended in circumstances of non-belonging, temporariness and marginalisation. This has both symbolic and legal implications. Offering a ‘trial’ status to refugees, contingent on their behaviour and the circumstances in their country of origin, signals the official reluctance to fully welcome refugees, while simultaneously demanding that they demonstrate their commitment to the UK and their worth as economic subjects and ‘active citizens’. As the Refugee Council predicted in 2005, this probationary refugee status has the effect of limiting employment and educational opportunities, as well as severely impacting the mental health of refugees. These already vulnerable people must suffer another five years of anxiety about the prospect of deportation as this new process of review has essentially undermined the security and relief intrinsic to the status of ‘refugee’.

The reason for review laid out in the letters received by Tamil refugees is that ‘there has been a significant change in the country situation since your grant of asylum.’ Deep in the text, the recipient is told that the Secretary of State is ‘merely reviewing’ whether she has a ‘continuing entitlement to refugee status.’ Yet, the letter states that the Secretary of State is ‘satisfied’ that the cessation clauses in article 1C of the Refugee Convention have been met, as has paragraph 339A(v) of the Immigration Rules: the refugee ‘can no longer, because the circumstances in connection with which he has been recognised as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of nationality.’

In one of these letters, the Deprivation & Revocation Team summarises the refugee’s case, which includes a history of torture, interrogation in custody and being forced under threat of violence to identify other members of the Liberation Tigers of Tamil Eelam (LTTE) - the militant group that waged a war for Tamil nationhood. The summary provided in these letters seeks to undermine the refugee’s claim to continuing protection. Moreover, aspects of the evidence and testimony that purportedly serve to displace the refugee from the tight categories of ‘risk’ outlined in the country guidance are emphasised. In the letter, she is re-categorised outside of the UK’s protection responsibilities, enabling the Home Office to justify the review and withdrawal of refugee status.

The current country guidance on Sri Lanka – GJ & Others – is taken as evidence that a ‘significant change’ in the country’s political situation has occurred that places certain refugees outside of risk of harm on return. GJ & Others describes the risk posed to Tamil returnees as dependent on several contingencies: former or continuing membership of the LTTE; diasporic advocacy for Tamil nationhood or efforts towards reviving the militant separatist movement; or testimony offered to a Sri Lankan post-war commission relating to state-perpetrated war crimes. The guidance case also describes ‘stop’ or ‘watch’ lists available to airport security in Colombo. These lists place returnees who are subject to an outstanding arrest warrant or court order at risk of surveillance, detention and subsequent violence. It is clear from these categories that those who have fled state-instituted persecution – overwhelmingly Tamils with connections to the LTTE and prior victims of state violence - can be expected to be identified and face persecution on return.

The environment is ‘definitely not conducive to return,’ a Sri Lanka-based lawyer told me last summer. The security services are automatically notified of a returnee’s arrival at Colombo Airport. Whether on a ‘list’ or not, the person is put under surveillance, subjected to sustained harassment and can be taken into detention at any time under the Prevention of Terrorism Act (which allows for detention for up to 18 months without charge and allows evidence extracted from a tortured defendant to be heard in court). ‘Nobody is secure on return,’ another lawyer told me. In this context, the Home Office cannot claim that a ‘significant change’ has taken place in Sri Lanka that negates the need for international protection.

The letters received by Tamil refugees suggest that they can now seek protection from their home country. For the Tamil community, the prospect of seeking meaningful protection in and from the Sinhala-Buddhist dominated Sri Lankan state is unthinkable. This is a state that has waged a persecutory war against the Tamil people since the separatist militant movement began in the early 1980s. This is a state that has tortured, killed, burned and dispossessed Tamils with impunity, as the majority ethnic population has sought to consolidate power on Sinhala-Buddhist principles. The Rajapaksa government, which oversaw the mass killing of Tamil militants and civilians alike in 2009 in a rush of immense violence that ended the civil war, was democratically defeated in early 2015. This government was notorious for its reliance on ‘white van’ abductions and disappearances, torture in custody and ‘excesses’ by the state military. It would be a mistake to consign this violence to the past and to consider the risk of violence to have subsided with the fall of the Rajapaksa government. Despite the new Sirisena coalition government’s discourse of reform and improved engagement with international human rights mechanisms, Tamils still face violence, discrimination and injustice: genocidal persecution, which the Rajapaksa government made explicit in the mass killings of 2009, persists in different form today.

Torture and rape in custody are institutionalised and the vast majority of victims are Tamils. A recent report by the UN Special Rapporteur on Torture stated that ‘the citizens of Sri Lanka continue to live without minimal guarantees of protection against the power of the State, in particular its security forces.’ Tamils are dispossessed and denied access to their own land. They are subject to constant, normalised intimidation and surveillance by the military. The process of ‘rehabilitation’ established to detain and politically pacify the surviving LTTE cadres (and any persons even loosely associated with them) now operates as an alternative criminal justice disposal, where Tamils can be detained without trial or conviction. Lawyers in Sri Lanka describe this as a process of criminalisation and detention outside of the criminal justice system, which keeps the Tamil people under threat, afraid and vulnerable to detention at any time.

Though the war is over and the new Sirisena coalition government propagates good governance, reform and peace, a deep, persecutory violence persists. The categorisation of risk in the country guidance should be regarded as fluid and changeable. The review of Tamil refugee status relies on a purported country change that is, contrary to the Secretary of State’s contention, insignificant and non-temporary. The categories of ‘risk’ are not exhaustive; the continuing risk posed to Tamil returnees has not ceased despite the war’s end.

The Home Office’s attention to whether the country is now ‘safe enough’ to deprive refugees of their refugee status is written through with an urge to expel. It is more and more difficult to attain stable, permanent status and citizenship in the UK. The dismantling of protective instruments goes hand in hand with restructuring the ‘worthy’ refugee along the lines imposed by capitalist concerns: those who can be expected to ‘contribute’ to the economy. It also treats refugees as portable – devoid of histories, fears, social dependencies or the need for real security and stability. As a legal subject and category, the ‘refugee’ is moved into the realm of the ‘deportable’ – a space inhabited by all non-citizens, which has, as De Genova (see here and here) tells us, profound disciplinary repercussions, operating as a coercive force of social control and assimilation. The assault on refugee status is emblematic of our current populist, exclusionary politics and policies, where we are forced to defend protections that we thought we had already won. The ‘refugee’ becomes another category of non-citizen defined by her deportability, reduced to her ‘undesirability’ along lines of citizenship, race and belonging, and ultimately expelled from ‘our’ country at the earliest possible moment.

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How to cite this blog post (Harvard style)

Seoighe, R. (2017) An Insignificant Change: The Review and Potential Withdrawal of Tamil Refugee Status in the UK. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2017/05/insignificant (Accessed [date]).