FOURTH SECTION

DECISION

Application no . 16458/12 N. and OTHERS against the United Kingdom

The European Court of Human Rights ( Fourth Section ), sitting on 15 April 2014 as a Chamber composed of:

Ineta Ziemele, President, George Nicolaou, Ledi Bianku, Nona Tsotsoria, Zdravka Kalaydjieva, Paul Mahoney, Faris Vehabović, judges, and Françoise Elens-Passos , Section Registrar ,

Having regard to the above application lodged on 15 March 2012 ,

Having regard to the decision to grant priority to the above application unde r Rule 41 of the Rules of Court,

Having regard to the decision to grant the applicants anonymity,

Having regard to the observations submitt ed by the respondent Government, the applicant s and the third party interveners ,

Having deliberated, decides as follows:

THE FACTS

1. The first applicant is a Sri Lankan national who was born in 1961 and lives in Wattala . The second applicant is her mother, who was born in 1935 and is a Sri Lankan national who lives in Bromley. The third applicant is her brother, who was born in 1967 and is a British national who also lives in Bromley. All three applicants are represented by the Aire Centre.

A. The circumstances of the case

2. The facts of the case may be summarised as follows.

1. The first applicant ’ s arrival in the United Kingdom and her asylum claim

3. The first applicant is an ethnic Tamil who holds Sri Lankan citizenship. On 6 April 2009 she arrived at Heathrow airport on a flight from Sri Lanka via Kuwait. She held a valid visitor ’ s visa for the United Kingdom and passed through immigration controls.

4. The first applicant went to stay with her brother, the third applicant, who was resident in London. Her mother, the second applicant, resided with the brother.

5 . The first applicant subsequently instructed a solicitor who, by letter to the Home Office dated 24 April 2009, indicated that she wished to make an asylum claim on the ground that she feared mistreatment because of her imputed political opinion if returned to Sri Lanka. The letter recorded that she claimed to have a well-founded fear of persecution because she was an ethnic Tamil from northern Sri Lanka; she had been detained and tortured by the Sri Lankan authorities; the Sri Lankan authorities had a record of her as a suspected LTTE sympathiser; she was “confused and psychologically scarred”; she would be returning from London, which the Sri Lankan authorities regarded as a centre of LTTE activity and fundraising; and she had escaped from Sri Lankan government custody.

6. She attended an asylum screening interview on 27 April 2009 . Her interviewer was female. According to the applicant t he interview was conducted with the aid of a male, Tamil - speaking interpreter. She was asked if she had a preference whether she was interviewed by a man or a woman and answered that she did not.

7. On 29 November 2010 the first applicant ’ s asylum interview took place. The interview was conducted by a female interviewer assisted by a fe male, Tamil-speaking interpreter. The first applicant maintained her claim for asylum or humanitarian protection on gr ounds of an alleged risk of ill ‑ treatment if returned. She claimed that o n 4 February 2009, she had been stopped at an army checkpoint in Colombo. Because her identity card listed her place of birth as Karampon, a town in a predominantly T amil area of northern Sri Lanka, she had been accused of planning acts of violence and detained by government agents for several days at an unknown location . Her husband and others had managed to secure her release, provided that she report to the authorities weekly.

8. She further alleged that o n 27 March 2009, she had been assaulted by three Criminal Investigation Department (“CID”) officers who had come to her home looking for her husband while he and their three sons were out. She had been taken to a remote camp in an unknown, government ‑ controlled area of Sri Lanka for questioning, where she had been tortured. She had subsequently become ill and had been transferred to a hospital with a CID guard stationed in the hospital grounds. She had escaped after three days, at 2 a.m. when there was no guard, with the help of a nurse and her husband, who was a taxi-driver. She had paid them with a gold earring. She had not returned to her home in Colombo but had spent a week at the house of her husband ’ s friend in Wattala before leaving the country with the help of an agent, whom she had paid with her jewellery and the title deeds to her home. She had not contacted her husband or sons since her arrest but had heard that they were no longer living at her f ormer home. She had entered the United Kingdom on a visitor ’ s visa which she had obtained in November 2008 to enable her to visit the third applicant and his wife, who were resident in London and had just had a baby.

2. The asylum decisions

(a) Secretary of State ’ s decision

9 . The Secretary of State refused the first applicant asylum and humanitarian protection on 20 January 2011.

10 . On the question of the credibility of her account of events in Sri Lanka prior to her arrival in the United Kingdom, the Secretary of State made a number of comments. First, she did not accept as credible, having regard to immigration control procedures, the first applicant ’ s claim at the asylum interview that she did not speak to an immigration officer when passing through immigration control. She concluded that the first applicant had gained illegal entry to the United Kingdom by verbally deceiving the immigration officer and placed “significant weight” on the mandatory damage done to her credibility in this regard. She further found that her credibility was damaged by the fact that she had not claimed asylum immediately on arrival at Heathrow but “ four months ” after (in their written submissions, the Government accepted that the reference to “four months” was an error and should have read “three weeks”) .

11 . Second, i n respect of the first applicant ’ s alleged arrest in February 2009, the Secretary of State found that, having lived in Col o mbo for a number of years, the first applicant would already have registered with the authorities there (referring to information contained in the Country of Origin Information Report for Sri Lanka, November 2010 – the “COI Report 2010”) . Doubt was cast on her account of events because her claim that she was detained for the reason that her ID card stated that she was from Karampon was not considered consistent with the purpose and use of compulsory registration in Col o mbo, which was to identify and question further those not from the area at the time of registration. Her account was also vague: she could not say who the people who had come with her husband to collect her were, or how her husband had secured her release. Despite having been released with an obligation to report on a weekly basis, she did not know to who m she had reported , where she had reported or how many times she had reported. The Secretary of State considered that her vague responses cast doubt on her claim. She therefore did not accept that the first applicant had been arrested and detained in the circumstances claimed, and this damaged her credibility.

12 . Third, i n respect of her alleged arrest in March 2009, the Secretary of State considered the first applicant ’ s claim that she was o f interest to the CID to be inconsistent with her account that the guard left the hospital, enabling her to escape . T he Secretary of State also noted that she had all the necessary documents and means to leave Sri Lanka legally and would not have required the assistance of an agent. Her account that she was assisted by an agent was therefore not consistent with her personal circumstances. Further, since the first applicant had been too afraid to return to her home address, she had not explained how she had obtained her 2008 passport for travel. This, too, cast doubt on the claim that she had left Sri Lanka in the circumstances described. The Secretary of State was of the view that a lthough the first applicant had stated that she had had no contact with her husband or children since her arrest , it was unlikely that she would have fled Sri Lanka without attempting to warn them of the CID ’ s interest in her husband. For all of these reasons, the Secretary of State did not accept that she had been arrested or detained in March 2009 and her credibility was damaged as a result.

13 . The Secretary of State considered the risk to the first applicant on return to Sri Lanka in light of these adverse credibility findings and the relevant case-law. As the material facts of her claim were not accepted, the Secretary of State concluded that the Sri Lankan authorities would have no adverse interest in her. In terms of the r isk factors identified by the Asylum and Immigration Tribunal in the leading country guidance case of LP (see paragraphs 70- 71 below), the only ones applicable to her were her Tamil ethnicity, her return from London and the fact that she had made an asylum claim abroad. Th ese did not create , either separately or cumulatively , a real risk of ill-treatment on return.

14 . As for Article 8, the Secretary of State noted that the first applicant relied on her relationships with her mother, brother and sister (who had arrived in the United Kingdom with the first applicant and had also claimed asylum). There was no evidence that these relationships involved more dependency than the usual emotional ties, and she had failed to show family life with her sister. There was equally no evidence that she had established private life in the United Kingdom since her arrival on 6 April 2009.

(b) The appeal to the First-tier Tribunal

15 . The first applicant appealed to the First-tier Tribunal (Immigration and Asylum Chamber). Her appeal was heard with that of her sister, who had also been refused asylum. The hearing took place before a male Immigration Judge and with the assistance of a male interpreter. The judge had before him, inter alia , a copy of the screening and asylum interview records, the Secretary of State ’ s reasons for refusal and the grounds of appeal. He also had before him a witness statement in which the first applicant set out full details of her account, and claimed in particular that she had never registered in Colombo; that her passport had been in a locker at the bank; and that her husband ’ s friend had recovered her passport on her behalf. The applicants relied on the COI Report 2010 together with relevant case-law and other supporting documents and objective material. The judge heard oral evidence from the applicant, her sister and her brother.

16. The appeal was dismissed on 17 March 2011. The judge made a number of findings of fact, explaining that he had given careful attention to the oral evidence in the case, the reasons for refusal letter, the grounds of appeal, the applicant ’ s witness statement and the supporting documents, including the country evidence and the country guidance cases of LP and TK (see paragraphs 70- 71 below).

17. He upheld the Secretary of State ’ s finding that the first applicant would have had to register with the police in Colombo , explaining that had she not done so , she would have been stopped at checkpoints long before February 2009. He also observed that the Sri Lankan authorities had issued her with a passport in November 2008, even though they knew she was from Karampon. He commented on her description of her release from the February 2009 period of detention, noting that her husband could not have known where she was being detained when she herself did not know and that she was unable to provide details of the reporting requirement imposed. He made an adverse finding of credibility.

18 . As regards the second period of detention in March 2009 , the Immigration Judge found that her account of her arrest made no sense: if the CID had wanted to find her husband they would have waited for him or gone to look for him, and would not have taken her in stead. The judge described the ill-treatment that she alleged had taken place, namely that a polythene bag with petrol in it had been placed over her head and her head had been repeatedly submerged in water, and found it not credible that during this treatment her gold earrings would have remained in place, allowing her to use them to bribe the nurse later . If the CID were interested in her and wished to obtain information through torture, the judge considered it not credible that they would have arranged for her medical treatment by a doctor and a nurse. He continued:

“32. ... Despite the fact that the CID had apparently seen fit to place a guard on the door they did not see fit to ensure that the guards changed shifts simultaneously thereby allowing the appellant to escape, dressed as a nurse having first given the genuine nurse her earrings which were also used to pay the nurse ’ s brother to pick her up in his rickshaw taxi and then to deliver her to a friend ’ s house even though he could not possibly have known in advance how long the journey would last or whether he would have enough petrol to make the trip because he did not know where the destination would be and [the first applicant] did not know where she was being held. I am trying to work out what was the point of dressing up as a nurse when there was nobody around to see her but there seems little point in picking up on small points when the entire story is so ludicrously lacking in credibility that it would struggle to be acceptable even as the plot of a ‘ Carry-on ’ film”.

19. As regards the first applicant ’ s seeking refuge with her husband ’ s friend in Wattala, the j udge observed that she and her driver “would have woken up the entire village” by knocking on doors to find out where her friend lived. He further observed that the first applicant had “apparently forgotten”, when claiming that she could not go home because no - one was there, that her husband and children would have come home and wondered where she had gone. He found her explanation that her friend had told her that they were living elsewhere to be “an embellishment designed to plug a gap in the evidence”. The judge made critical comments about the sisters ’ accounts of how they contacted each other by mobile phone and rejected the first applicant ’ s account of having used an agent, on the basis that she had a passport with a valid visitor ’ s visa so had no need for one. Her claim of having sold the house to pay the fees he said was “a total fabrication”.

20. The Immigration Judge found that the sisters had obviously put their heads together and that their escape from Sri Lanka was nothing more than “ a coordinated pleasure trip with a sinister intention, namely to deceive the UK autho rities by cooking up a story once they had arrived at their brother ’ s house ” . The j udge had no doubt that they had been in regular contact with their respective husbands and that the first applicant had been in contact with her sons. He reviewed all the applicable risk factors set out in LP (see paragraph 71 below) and concluded that the first applicant and her sister could be returned to Sri Lanka. In particular, there was no evidence that a failed asylum-seeker was per se subject to persecution on return and the first applicant and her sister were of no interest to the authorities. There was nothing about them save their ethnicity which could possibly cause any authority to make inquiries.

21. As to the manner in which the first applicant had claimed asylum, the judge commented on her failure to make a claim at Heathrow airport or immediately upon arrival at her brother ’ s house. He found that her mother ’ s alleged ill-health was not sufficiently serious to have prevented her from contacting the authorities immediately. He continued :

“ 40. ... The appellants claim to suffer from the effects of torture but I find that this is all part of the smokescreen. They have persisted in maintaining a false story and their conduct in seeking anonymity [in the course of pro ceedings before the Tribunal ] is but another aspect of the smokescreen which they have thrown up. They have taken advantage of the [National Health Service] and the local school system. Their brother has abused the society which gave him refuge. I have no hesitation in finding that their conduct adversely affects what remains of their credibility.”

22 . The judge concluded:

“41. I find in each case that the appellant is sufficiently resourceful to be able to return and to re-establish herself in a country where she spent most of her life and where her family still lives. She is not suffering from any life-threatening illnesses ... I find on all the evidence adduced that there are no compassionate circumstances or other matters showing why the appellant could not return to Sri Lan ka. I find that her ties are to Sri Lanka and not to the United Kingdom. Removal is appropriate and proportionate.

...

43. Given the conclusions as outlined above, I also find in each case that the appellant has not shown substantial grounds for believing that she will face a real risk of serious harm in her country of origin or that she is unable, or owing to such risk, unwilling to avail herself of the protection of her country of origin ... ”

(c) The application to the First-tier Tribunal for permission to appeal

23 . The first applicant and her sister sought permission to appeal against the Tribunal ’ s determination on grounds , inter alia , of bias and the fact that the Immigration Judge had failed properly to consider their case under Articles 2 and 3 of the Convention.

24 . On 4 April 2011 t he application was dismissed by a different Immigration Judge of the First-tier Tribunal who explained :

“The Immigration Judge spent some time dealing with the appellants ’ cases and for a number of perfectly clear reasons disbelieved the entirety of their accounts. It is clear that he expresses himself in very forceful terms; however , for each matter he disbelieves he gives clear reasons [which] do not display bias , but which simply explain why he has reached the conclusion , and whilst many might not have expressed themselves so forcefully the expressions themselves do not display an arguable error of law.

While it is true that there is no clear evaluation in relation to a rticle 8, in looking at the appellants ’ and [their] witness ’ s statements there is nothing in them to suggest any real family life or private life for either appellant save for presence with other adult family members. I see no skeleton argument for either, which sugge sts that no real article 8 case was put forward. As a result there appears to me to be no realistic prospect of success on appeal in relation to article 8...”

(d) The application to the Upper Tribunal for permission to appeal

25 . The first applicant and her sister renewed their application to the Upper Tribunal . O n 6 July 2011 the application was dismissed for the reasons given in April by the First-tier Tribunal. The Senior Immigration Judge added that, although the initial Immigration Judge ’ s opinions had been robustly expressed, there was no evidence of bias.

26 . With the rejection of the application to appeal, the first applicant ’ s appeal rights were exhausted.

3. Events following the conclusion of the asylum proceedings

27. In August 2011 the first applicant ’ s NHS counselling psychologist informed her general practitioner that she was “ having suicidal thoughts of throwing herself in front of a train or traffic ” and that she claimed to have stepped out in front of a car two weeks earlier, which had fortunately stopped in time.

28. On 6 September 2011, the general practitioner confirmed that the first applicant suffered from depressive illness “due to her family situation” , that her antidepres sant medication was not working, that she had been referred to a psychiatrist and that her prognosis would be poor until support for her to remain in the United Kingdom had been achieved. He referred to her “suicidal ideation” and problems with her status in the United Kingdom.

29. On 14 September 2011 the United Kingdom Border Agency ( “ UKBA ” ) issued directions for the first applicant ’ s removal to Sri Lanka by charter flight at 3 p.m. on 28 September 2011. She was taken into immigration detention.

30. On 15 September 2011 medical personnel at the immigration removal centre recorded in an R35 report that the first applicant had told them that she had been tortured by the Sri Lanka army and that , as part of that torture, had been raped.

4. The first applicant ’ s further submissions

( a ) The further submissions to the Secretary of State

31 . On 15 September 2011 , with the assistance of new legal representation, the first applicant made further submissions to the Secretary of State. Her representatives submitted that details of her ill-treatment while in detention had not previously been disclosed because she was too traumatised to give full disclosure to her brother, her male lawyer and the male interpreter at the asylum interviews, and that trauma could cause individuals to block out painful events. They explained that she had been referred to the Helen Bamber Foundation for further investigation and included a copy of the R35 report.

32 . The further submissions also referred to the fact that the first applicant had disclosed suicidal thoughts and that there were concerns for her well-being. The various letters from her GP and counselling psychologist were enclosed. Relying also on Article 3 of the Convention, the first applicant submitted that return to the place where torture and ill ‑ treatment had taken place could cause further mental deterioration.

(b) The Secretary of State ’ s decision

33 . On 23 September 2011 the Secretary of State inf ormed the first applicant that her removal would proceed as planned . In her letter, the Secretary of State reiterated that it had not been accepted that the first applicant had ever been detained by the Sri Lankan authorities and that the First-tier Tribunal had not believed her account, even to the smallest degree. The Secretary of State further noted that while the first applicant claimed that her former reticence to disclose details of the rape was because she had male solicitors and interpreters, she had shown no compunction in raising the claim when removal became imminent.

34. As regards the first applicant ’ s mental health, the Secretary of State noted that she had not told her GP about her torture, and had attributed her depression and suicidal ideation to an undisclosed family situation and her placement in immigration detention. It was considered that she had not been honest with the United Kingdom authorities and was seeking to claim that she had been raped as a means of remaining in the United Kingdom , perhaps to obtain medical treatment or to resolve problems with her family. The Secretary of State added that there was no reason to believe that she would not have access to medicine and treatment in Sri Lanka, and that her mental health problems did not meet the Article 3 threshold.

35. The Secretary of State maintained her position that removal would also be a proportionate interference with the first applicant ’ s rights under Article 8 since there was no evidence of the required level of dependency in her relationship with her mother and adult siblings; she had failed to come “even close to showing” that her moral and physical integrity would be breached on return to Sri Lanka; and she had not demonstrated anything more than the usual personal ties to the United Kingdom.

36 . In conclusion, the Secretary of State found that the points made by the first applicant in her submission, taken together with material previously considered, did not create a realistic prospect of success before an Immigration Judge (see paragraph 68 below). The submissions did not therefore amount to a fresh claim and there was no right of appeal against that decision.

5. The first applicant ’ s detention and psychiatrist ’ s report

37 . According to the first applicant ’ s detention records, on 22 September 2011 she attended a bail hearing where she claimed that she had tried to kill herself several times. Upon her return to the immigration removal centre, an immediate action plan was put in place. It was decided that she would be observed hourly in order to ensure that she remained safe. A healthcare appointment was arranged for her that night and a doctor ’ s appointment was arranged for the following day to explore her mental health issues. Regular case reviews subsequently took place.

38 . On 24 September the first applicant was interviewed by an independent male psychiatrist with the assistance of a female interpreter. According to his report of 26 September 2011, in that interview she gave further details of her rape by three men in uniform during her first period of detention in February 2009 and her beating and gang rape by four Sri Lankan officers during her second period of detention in March 2009. The psychiatrist noted that she had displayed clear signs of distress consistent with emotional trauma when giving her account of events.

39 . The psychiatrist was of the view that that the applicant presented with symptoms consistent with depression. He identified the main perpetuating factors as her pending repatriation and her current detention. He considered that on a balance of probabilities she was suffering from post-traumatic stress disorder , based on the assumption that the alleged detention and abuse in Sri Lanka had taken place.

40 . He recorded that he was fully aware of the unexplained discrepancies between the account given to him and that given to UKBA. He explained that he could not comment on her credibility, which was a matter for the courts. However, he observed that it was not unusual for patients who had suffered significant trauma to recollect peripheral information at the expense of other information, or to distort memories.

41 . The psychiatrist noted that the first applicant could not explain why she had not shared the information earlier. He considered that there was not enough evidence to suggest that she had dissociated herself from the traumatic events and therefore did not believe that dissociation was responsible for her previous omissions. However, he noted that during his interview with her, he was assisted by a female Tamil-speaker from India, and hypothesised that this might have reduced the threat of cultural stigma from the disclosure.

42 . Finally, the psychiatrist recorded that the first applicant had expressed a desire to commit suicide if returned to Sri Lanka, claiming that this would be preferable to being tortured and killed by soldiers. He recorded that officials at the immigration removal centre had placed the first applicant on suicide watch , and recommended that this be maintained . He was of the view that her recent detention had significantly contributed to worsening her mental state. He noted that she had no active plans to end her life unless sent back to Sri Lanka. He recommended various therapies but could not comment on whether they would be available in Sri Lanka.

43 . The first applicant ’ s detention record logs the results of the hourly observations of the first applicant from 5.30 p.m. on 22 September until 9.55 a.m. on 28 September. Aside from legal and medical appointments and discussions with staff members about her removal, the record shows that she regularly ate meals with friends, she attended church, she talked to other detainees, she washed her clothes and she slept.

6. The first applicant ’ s further submissions and request to have a fresh asylum claim considered

44 . On 27 September 2011, on the basis of the psychiatrist ’ s report and other fresh evidence, including a letter from a Sri Lankan lawyer stating that the she had been detained in February 2009 and had appeared before Colombo Magistrates ’ Court, represented by him , the first applicant made further, urgent representations to the Secretary of State.

45. A t 11.41 a.m. on 28 September 2011 , her further representations were rejected. The Secretary of State noted that the first applicant had previously made no mention of having been produced before Colombo Magistrates ’ Court. There were also inconsistencies between the lawyer ’ s account and that of the first applicant: he said that she had been released on cash bail to report to a particular police station; she said that she had been released with a weekly reporting requirement but did not know where. The Secretary of State therefore concluded that the letter was not reliable.

46. As regards the first applicant ’ s mental health, the Secretary of State noted that according to the psychiatrist ’ s report this had been worsened by her detention and concluded that it would therefore improve after removal. There was no clear evidence of a real risk that the f irst applicant would commit suicide if returned . Despite the first applicant ’ s representations to the contrary, the Sri Lankan health system provided adequate treatment for depression. There were no exceptional or extreme circumstances in her case. Her ability to travel had been assessed and had there been any doubts, her removal would not have proceeded. However, there had been no doubts.

47. Finally, as regards Article 8, the Secretary of State accepted that the first applicant had family life in the United Kingdom but maintained that her removal would be proportionate.

7. The judicial review claim and the first applicant ’ s removal

(a) The lodging of the claim and the flight ’ s departure

48. Upon receiving the Secretary of State ’ s decision the first applicant commenced judicial review proceedings in the High Court. She claims that the papers were lodged at some time prior to 2 p.m. on 28 September 2011. In her judicial review application, she alleged that the Secretary of State ’ s failure to treat the post-appeal evidence concerning her rapes, psychiatric illness and suicide risk as a fresh claim violated domestic law as well as Articles 3 and 8 of the Convention. She also sought an injunction to stop the Secretary of State removing her prior to consideration of her judicial review claim. The various tribunal decisions were not lodged with the claim.

49. According to the detention records, the first applicant was asked by immigration removal centre staff on the morning of 28 September whether she would go to the airport without causing problems and answered that she would. She was therefore taken to reception for transfer to the flight at 9.55 a.m., and no problems were reported. According to the first applicant, s he was c arried on to the flight to Sri Lanka at or around 3 p.m. by two men .

50. Many of the forty-nine other Sri Lankans on the flight manifest had also applied to the High Court for permission for judicial review on the basis that they faced a real risk of tor ture upon arriving in Sri Lanka. Twenty-three individuals were removed from the flight manifest prior to departure as the High Court ordered that they were not to be removed pending those proceedings. However, the first applicant ’ s case was not considered in time to prevent her removal (see paragraph 52 below) and no order was made to suspend removal pending consideration of her case.

51. T he flight departed with fifty Sri Lankan nationals on board at 4.15 p.m. on 28 September 2011 .

( b ) The High Court ’ s determination of the judicial review claim on the papers

52 . On 30 September 2011 the High Court refused permission to seek judicial review on the papers. As to the failure to consider the applicant ’ s claim before her deportation, t he High Court judge stated:

“The claimant was due to be removed to Sri Lanka at 15.00 on 28 September. The directions for her removal had been served on her on 14 September. However , it was not until 28 September that her claim for judicial review proceedings challenging the directions for her removal was lodged. Her application for a stay on her removal directions came before me on 28 September as the ‘ immediates ’ judge. The claimant was one of 20 or so failed asylum-seekers due to be removed on the same flight who were asking for a stay on their removal. Although some of the applications could be considered by other judges when they became available , it was plain by about 14.00 that I would not be able to consider all the remaining applications by 15.00.

In those circumstances , I was informed by [UKBA ’ s Operational Support and Certification Unit] which of the remaining applicants were on the main manifest , and which were on a reserve list – and therefore liable to be included on the main manifest only if someone on the main manifest was removed from the flight. Although my priority was to deal with the applications of those on the main manifest , I had not reached the claimant ’ s case by 15.28 when I was told that the doors were about to close. I was informed yesterday that the claimant had been on the flight. ”

53 . On the merits o f the claim, the judge noted that if he had considered the first applicant ’ s case on 28 September, his difficulty would have been that her solicitors had not included in the bundle of documents the decision of the I mmigration Judge. He said:

“It would not have been possible for me to conclude that it was arguable that the rejection of the claimant ’ s solicitors ’ representations, and the refusal to treat those representations as fresh claims, was legally flawed without reading that decision.”

54 . The judge concluded that since the applicant had now been removed to Sri Lanka, no purpose would be served by reconsidering the matter once the decision of the I mmigration J udge had been provided or by permitting her claim to p roceed.

( c ) The renewed application for permission

55 . The first applicant renewed her application for permission to seek judicial review on 4 October 2011 . The application was refused on 18 January 2012 following an oral hearing . The judge summarised the applicant ’ s case as follows:

“9. ... [T]he claimant ’ s case was that there was in this case post appeal evidence of additional brutality and its after effects, in particular creating an increased dependency on her family in the UK and a risk of suicide, those justifying the Secretary of State in treating this application as a fresh application for asylum, engaging both issues of Article 3 and human rights consideration in addition pursuant to Article 8.”

56 . He reviewed the determination of the First-tier Tribunal and observed:

“11. It is clear that, having heard evidence from both the claimant and her sister ... the judge concluded , in emphatic terms , that neither sister was credible in any relation to the claims for asylum. In short , he concluded that both the claimant and her sister had told a pack of lies.

12. It follows that it is against that very unpromising background of evidence from the claimant having been heard and considered by a judge and effectively damned in such strong terms that the question whether the Secretary of state was right to conclude that any further claim based on additional materials stood no reasonable prospects of success.”

57 . He noted the arguments of the first applicant ’ s counsel, namely that the Secretary of State had failed adequately to take into account the psychiatrist report in reaching her co nclusion on the Article 8 issue ; that it was not open to the Secretary of State, in light of that report and the Sri Lankan lawyer ’ s letter, to conclude that the first applicant ’ s evidence was inconsistent and untrue; and that it was perverse for the Secretary of State to have reached the findings she did on the first applicant ’ s suicide risk, given the evidence. He continued:

“15. In my view, the problem with the submissions that [ c ounsel for the applicant] has advanced ... is that they overlook the fundamental question of credibility and the context in which this new evidence was raised very much at the eleventh hour. The immigration judge ’ s determination was , as I have indicated , a savage series of findings in terms of the credibility of the claimant ’ s account. On the face of it, in circumstances where this claimant had given evidence dealing with her alleged treatment in custody in Sri Lanka in 2009 and the brutal treatment meted out to her, all of which evidence was considered by the immigration judge, it seems to me that the Secretary of State was well entitled to conclude that there was no realistic prospect of success in circumstances where completely new allegations were now being advanced some two days before removal directions were set and in circumstances where none of that evidence, including the medical evidence ... , provided a sensible or satisfactory explanation for the failure to mention these important allegations at the time of the original appeal. ”

58 . He found that in these circumstances, it was impossible to characterise the Secretary of State ’ s decision as unlawful and dismissed the renewed application for judicial review.

8. Events following the applicant ’ s return to Colombo

(a) The first applicant ’ s account

59 . The first applicant alleges that, after arriving at Colombo airport, she was detained and interrogated by Sri Lankan authorities. One of her interroga tors struck her on the forehead . She further claimed that, when released from this initial detention and preparing to leave the airport, s he was abducted, blindfolded and removed to an unknown location by an unknown person . He r clothing was forcibly removed. Her captors asked whether she was “still” linked with the LTTE and had taken part in LTTE activities whil e living in the UK. They accused her family of funding the LTTE. The men showed her copies of her asylum papers they had found in her bag, which she claimed had been packed by United Kingdom officials at the immigration removal centre , and asked her questions about them. They then beat her , kicked her, stabbed her with a broken ballpoint pen and did further “unspeakable bad things” to her. Eventually they forced her to sign statements written in Sinhalese.

60 . The first applicant alleges that her interrogators ultimately released her from their custody. After seeking treatment at a hospital, she became frightened, went into hiding and was unable to contact her family in the United Kingdom for more than three months. She has submitted a copy of a letter from a doctor at the National Hospital of Sri Lanka in Colombo addressed “to whom it may concern”. The letter states that , according to the hospital records, on 6 October 2011, the first applicant “presented with multiple physical injuries and psychological trauma.” She had “sustained head , arm and leg injuries , scratches around [her] neck and bruises on her face caused by torture and other ill-treatment”.

61 . The first applicant also maintains that, since emerging from detention, she has twice attempted to commit suicide, as documented by a letter from the same doctor dated 14 January 2012 . She claims that she is currently staying with an acquaintance and that h er husband and sons remain missing.

(b) The evidence of the British High Commission

62 . Two officials from the British High Commission in Colombo met the first applicant ’ s flight as it arrived at the airport. One of the officials has set out his account of events in a letter dated 3 October 2011. He explained that the group of fifty returnees was escorted to a seated area in immigration arrivals. They were addressed by a Tamil-speaking migration officer who explained the processes that they would have to go through. The British High Commission official then addressed them in English. In his letter, he said:

“None of the returnees appeared ill or distressed in any way and their main concerns seemed to be around being reunited with their baggage and belongings.”

63. The first returnees were interviewed from around 11.15 a.m., by the Department of Immigration and Emigration first and then by the State Intelligence Service and CID jointly to ascertain their mode and route of travel to the United Kingdom, what they had been doing there and whether they had been involved in previous criminal activity in Sri Lanka. Once the interviews were completed, their passports were stamped allowing them to leave. They were then addressed by a representative of the International Organization for Migration, who gave them a travel grant equivalent to GBP 50 for onward travel and accommodation if required and took their contact details.

64. The first returnee was allowed to leave at 1.20 p.m. The last of the returnees passed through customs at approximately 5 p.m. The official accompanied most of the returnees to the baggage reclaim area, where he oversaw the collection of their bags. The official was made aware that one of the first male returnees processed had been identified as the subject of an outstanding criminal arrest warrant and would therefore be arrested once he had completed immigration procedures. The official was provided a copy of the court warrant. He was subsequently informed that the arrest had taken place and spoke to the police officer who had made the arrest and the returnee himself.

65. By supplementary letter dated 13 September 2012, intended to address questions arising in the proceedings before this Court, the official confirmed that no female on the flight was questioned for any considerable length of time. Aside from the one returnee who was arrested, no other returnees were detained. All returnees were addressed either by him or his colleague, and one of the two accompanied every single passenger to the baggage reclaim area and reunited them with their bags. The officials gave the returnees their business cards. The official emphasised that he and his colleague remained with the passengers throughout the whole process and would have noticed had any of them shown signs of illness, injuries or distress. Each of the returnees had ample opportunity to seek assistance from him and his colleague.

66 . The official accepted that in theory a returnee could have been apprehended as she was about to leave the airport. He continued:

“The arrivals area is normally crowded with waiting friends and relatives, plus the media were in attendance specifically for the charter flight. It would however be questionable as to why the authorities would wait until that stage when the person could have been arrested or detained during the border control process if they were of further interest.”

B. Relevant domestic law and practice

1. Asylum appeals

67. Section 82(1) of the Nationality, Immigration and Asylum Act 2002, provides a right of appeal to the First-tier Tribunal (Immigration and Asylum Chamber) against an immigration decision made by the Secretary of State for the Home Department , inter alia, on the grounds that the decision is in compatible with the Convention. Section 11 of the Tribunals, Courts and Enforcement Act 2007 provides a further right of appeal to the Upper Tribunal, with the permission of the First-tier Tribunal or the Upper Tribunal, on a point of law.

68 . Paragraph 353 of the Immigration Rules provides that further submissions made after an asylum claim has been determined will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content: (i) ha s not already been considered; and (ii) taken together with the previously considered material, create s a realistic prospect of success.

2 . UKBA ’ s policy instruction on judicial review and removal

69. UKBA ’ s policy instruction on judicial review and injunctions provides that UKBA will normally defer removal where a judicial review application has been properly lodged with the High Court in accordance with the applicable Practice Direction. However, where it is considered appropriate because of the complexity, practicality and cost of a charter flight, a judicial review application may not defer removal unless an injunction is obtained from the High Court.

3 . Country guidance determinations in respect of Tamils returning to Sri Lanka

70 . The country guidance case-law applicable at the relevant time was set out in LP (LTTE area – Tamils – Colombo – risk?) Sri Lanka CG [2007] UKAIT 00076 (“ LP ” ) (subsequently endorsed by this Court in NA. v. the United Kingdom , no. 25904/07, § 95 , 17 July 2008 ) and TK (Tamils – LP updated) Sri Lanka CG [2009] UKAIT 00049 (“ TK ” ). The findings in both cases are set out in detail in the Court ’ s judgment in E.G. v. the United Kingdom , no. 41178/08 , § § 13-16 , 31 May 2011 .

71 . In short, the risk factors identified in LP and confirmed in TK were the following:

(1) Tamil ethnicity;

(2) a previous record as a suspected or actual LTTE member ;

(3) a previous criminal record and/or outstanding arrest warrant ;

(4) bail jumpi ng and/or escaping from custody;

(5) having signed a confession or similar document ;

(6) having been asked by the security forces to become an informer;

(7) the presence of scarring;

(8) return from London or other centre of LTTE fundraising;

(9) illegal departure from Sri Lanka;

(10) lack of an ID card or other documentation;

(11) having made an asylum claim abroad;

(12) having relatives in the LTTE.

4 . UKBA ’ s policy instruction on gender-related asylum claims

72. Section 7 of UKBA ’ s policy instruction on gender issues in asylum claims covers interviewing and assessment of credibility. Section 7.1 notes that e ach applicant will have been asked at screening to indicate a preference f or a male or female interviewer. It explains that it should normally be possible to comply with a request made in advance of an interview. It clarifies that r equests made on the day of an interview for a male or female interviewer or interpreter should be met “ as far as is operationally possible”.

73. Section 7.2 states that w hile the substantive asylum interview represents an applicant ’ s principal opportunity to provide full disclosure of all relevant factors, the disclosure of gender-based violence at a later stage in the determination process should not automatically count against her credibility. It explains that there may be a number of reasons why an applicant might be reluctant to disclose information, for example feelings of guilt, shame, and concerns about family honour, or fear of traffickers or having been conditioned or threatened by them. In particular, it refers to the possibility that the applicant has suffered trauma , which could lead to memory loss or distortion. It provides that d ecision-makers should be aware of this and how such factors might affect how a woman responds during interview.

C. Relevant Council of Europe and international law materials on gender-related asylum claims

1. UNHCR ’ s guidelines

74. UNHCR ’ s “Guidelines on International Protection: Gender-Related Persecution within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees” set out a series of procedural best practices “in order to ensure that gender-related claims, of women in particular, are properly considered in the refugee status determination process” (paragraph 36). Paragraph 35 of the guidelines refers to claimants ’ possible reluctance to identify the true extent of the persecution suffered or feared because of, inter alia , trauma and shame.

75. The guidelines also propose that claimants be informed of the choice to have interviewers and interpreters of the same sex as themselves, and they should be provided automatically for women claimants (paragraph 36(iii)). They further suggest that both open-ended and specific questions which may help to reveal gender issues relevant to a refugee claim be incorporated into all asylum interviews, in part because female claimants may fail to relate questions that are about torture to the types of harm which they fear (such as rape, sexual abuse, female genital mutilation, honour killings, forced marriage, etc.) (paragraph 36(vii)).

2. Parliamentary Assembly of the Council of Europe Resolution 1765

76. Parag raph 6 of Resolution 1765 on gender-related claims for a sylum provides:

“In addition to the problem of gender issues not being properly taken into account in the assessment of asylum claims, the asylum procedure in member states often makes it difficult for women to tell their full story. A woman who faces a male interviewer or interpreter can be reluctant to speak freely and give a full account of the violence she has experienced, whether gender based or not. Moreover, the officials involved in the asylum procedure often lack adequate training on gender issues and therefore fail to ask the right questions or to analyse the evidence before them properly. This problem may be exacerbated by the use of country of origin information that ignores gender issues or has little gender relevance.”

77. Paragraph 8 states:

“W omen and girls seeking asylum in Council of Europe member states have the right to have their protection claims assessed by an asylum system that is sensitive, in all aspects of its policy and operation, to the particular forms of persecution and human rights abuses that women face because of their gender.”

78. Paragraphs 9.3, 9.6 and 9.7 call on member States to ensure that women are automatically provided with assistance and interpretation by female counsellors and interpreters when formulating their asylum claims and filling out their applications; to guarantee that interviewers and interpreters dealing with female asylum seekers are always women; and to ensure that the asylum interview is carried out in a gender-sensitive way and, in particular, that questions relevant to gender-based violence and gender -related persecution are asked.

COMPLAINTS

79. The first applicant complains under Articles 2 and 3 of the Convention that she was forcibly returned to Sri Lanka, despite a real risk of ill-treat ment contrary to those Articles and a real risk of suicide.

80. She further complains, under Article 6, that the failure , prior to her removal , to provide her with a hearing on whether her fresh claim for asylum was in fact a fresh claim violated her right to a fair trial .

81. All three applicants submit that the first applicant ’ s removal to Sri Lanka violated their right to respect for their private and family li ves under Article 8.

82. The first applicant further submits that the rejection of her fresh representations as not amounting to a fresh claim deprived her of an effective remedy under Article 13 of the Convention read in conjunction with Articles 2 and 3.

83. Finally, the first applicant submits that the failure of the domestic authorities to give proper consideration to her claim to have been raped was in violation of Article 14 when taken with Articles 2, 3, 6 and 8.

THE LAW

I. THE GOVERNMENT ’ S OBJECTION OF NON-EXHAUSTION

A. The parties ’ submissions

84. The Government argued that the applican t s had failed to exhaust domestic remedies since the first applicant had not sought permission to appeal the High Court ’ s judgment of 18 January 2012 to the Court of Appeal. The fact that the first applicant had been removed from the United Kingdom by the time the High Court decision was handed down, did not render the remedy illusory. It was noteworthy that the first applicant had continued with her judicial review claim via her legal representative in January 2012, despite the fact that she had at that stage been removed three months earlier. Although she appeared to suggest that funding for an application to the Court of Appeal had later been denied, she had not appealed the refusal to grant legal aid and had not explained why not.

85. The applicants argued that judicial review proceedings were not effective. They emphasised that they had no automatic suspensive effect, which was a requirement in cases giving rise to an arguable claim under Article 3 of the Convention. They added that they had pursued judicial review until their representatives had ceased acting because funding was refused. They also emphasised that they were challenging the fairness of the proceedings on Article 6 grounds. They therefore invited the Court to join the Government ’ s objection to the merits of their complaints.

B. The Court ’ s assessment

86 . Article 35 § 1 of the Convention provides:

“1. The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law .. .”

88 . The only remedies which Article 35 § 1 of the Convention requires to be used are those that relate to the breaches alleged and at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness. In some cases there may be special circumstances which absolve the applicant from the obligation to exhaust the domestic remedies at her disposal. However, the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust domestic remedies (see Akdivar and Others , cited above, §§ 66-68 and 71; and Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09 , § 52 , ECHR 2013 ).

89. In so far as the applicants complain of violations of their rights under Article 8 of the Convention, there is no general requirement that the remedy afforded by national law must have the effect of suspending the first applicant ’ s removal (see De Souza Ribeiro v. France [GC], no. 22689/07, § 83 , ECHR 2012 ). This is because in most Article 8 cases, no “irreversible harm” will arise if the applicant is removed. There is nothing in the applicants ’ complaints under Article 8 to suggest that their case concerns exceptional circumstances whereby the first applicant ’ s removal prior to the examination of these complaints would lead to “irreversible harm”. Similarly, the first applicant has failed to demonstrate that her removal gave rise to any risk of irreparable harm as a result of the alleged breach of Article 14 taken together with Article 8 of the Convention. There was accordingly no need for a remedy with suspensive effect in respect of these complaints. The absence of suspensive effect does not therefore render the judicial review proceedings ineffective for the purposes of Article 35 § 1.

90. In so far as the applicants claimed that legal funding for an appeal had been denied, they have failed to provide any evidence supporting their claim and have equally failed to show that they appealed any decision to refuse legal aid.

91. In these circumstances, the Court is satisfied that the applicants ’ complaints under Article 8, taken alone and in conjunction with Article 14, are inadmissible for failure to exhaust domestic remedies and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

92. As regards the first applicant ’ s complaints under Articles 2 and 3, alone and taken in conjunction with Article 14, the Court ’ s case-law has clarified that w here a complaint concerns allegations that the person ’ s expulsion would expose him to a real risk of suffering treatment contrary to Article 3 of the Convention, effectiveness requires that the person concerned should have access to a remedy with automatic suspensive effect ( see M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 293 , ECHR 2011 ; and De Souza Ribeiro , cited above, § 82 ). However, it is significant that the present application was lodged with this Court almost six months after the first applicant ’ s removal to Sri Lanka, and shortly after her renewed application for permission to seek judicial review had been refused on the papers. It is clear, therefore, that in lodging her application to this Court the first applicant was not seeking to prevent her removal but to have examined her claim that her removal (including the lack of suspensive effect in practice of her final attempt to seek judicial review) had breached her Article 2, 3 and 13 rights and appropriate ex post facto redress provided. She could have made such complaints in the aforementioned judicial review proceedings, which she pursued before the domestic courts in October 2011 after her return to Sri Lanka (see paragraphs 55-58 above), and achieved, in the ex post facto phase of those domestic proceedings, the same outcome as she now seeks in the present proceedings. It is further significant that the applicant delayed until the very last minute to lodge her judicial review claim in the first place, around one or two hours prior to the scheduled departure time of the charter flight, despite having been notified some two weeks earlier of the date and time of removal and some five days earlier of the Secretary of State ’ s refusal to treat her further submissions as a fresh asylum claim (see paragraphs 29, 33 and 48 above). It was the consequence of the late lodging of her claim that her request for an injunction was not considered by the “immediates” judge before the flight ’ s departure (see paragraph 52 above). Had she lodged her claim in a timely manner, the judge would have had the opportunity to examine it. In any event, it is clear from the judge ’ s findings following the applicant ’ s departure that her failure to comply with the procedural requirements for lodging judicial review proceedings, namely her failure to include in her application a copy of the Immigration Judge ’ s decision, would have made it impossible for her request for an injunction to be upheld (see paragraph 53 above).

93. However, since the first applicant ’ s complaints under Articles 2, 3 and 13 and her associated Article 14 complaint are in any event inadmissible on other grounds, it is not necessary to give a ruling whether she has failed to exhaust available remedies in the specific circumstances of her case.

II. THE ALLEGED VIOLATION OF ARTICLES 2 AND 3 OF THE CONVENTION

94. The first applicant complains that she was forcibly returned to Sri Lanka, despite a real risk of ill-treat ment contrary to Articles 2 and 3 of the Convention . The Court finds it appropr iate to examine the applicant ’ s complaint from the standpoint of Article 3 of the Convention only (see NA. , cited above, § 95; and Samina v. Sweden , no. 55463/09 , § 33 , 20 October 2011 ), which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A. The parties ’ submissions

1. The Government

95. The Government argued that the applicant ’ s asylum claim was considered carefully and by reference to all relevant factors and information. The Secretary of State ’ s refusal letter had addressed the specific facts of the applicant ’ s case in considerable detail, referring to relevant country background information and case-law. As to the findings regarding the February 2009 arrest, the Secretary of State was correct to focus on explaining why the system of registration in Colombo undermined the first applicant ’ s story, rather than referring to objective evidence about the ill-treatment of Tamil civilians at checkpoints. An assessment of the first applicant ’ s account was made on the basis of the specific facts of her case, against the general backdrop of the objective evidence. Her inability to provide basic details, for example, about the nature of the reporting requirement and in particular where she had gone to report, justified the adverse credibility findings.

96. The Government further rejected the first applicant ’ s explanation for the late disclosure of the rape allegation. The applicant had been asked at her screening interview, conducted by a female officer, whether she wished to have an interviewing officer of the same gender, and had answered that she had no preference. Despite having failed to make a gender request, her asylum interview was in fact conducted by a female officer assisted by a female interpreter. Still, the first applicant did not disclose that she had been raped or had suffered sexual violence. The Government emphasised that the interview had taken place in a private room, and that the first applicant ’ s suggestion in her written submission that the room nonetheless did not afford adequate privacy had never previously been advanced. It had also been open to the first applicant to request a female judge before the First-tier Tribunal, but she had not done so. The Government submitted that they had complied with their international obligations and with recommended best practice. It was further noteworthy that the applicant had enjoyed the benefit of legal representation from the outset by solicitors who specialised in immigration law and had Law Society accreditation in that respect. They were also Sri Lankan and could therefore be expected to be familiar with conditions and cultural considerations specific to Sri Lanka and the possibility of gender-related violence.

97. As regards the tribunal decision, the Immigration Judge had made it clear that he did not make adverse credibility findings simply because the first applicant ’ s story was vague but had also considered explanations for that vagueness. The determination, read as a whole, was not immoderate in tone or unjudicial. It set out in objective language the first applicant ’ s claims and the evidence. The language in a few isolated sentences was not to be presented out of context as evidence of bias. In particular, if a judge considered a claim to be “ludicrously lacking in credibility” (see paragraph 18 above), he was entitled to say so. Neither the decision of the First-tier Tribunal to refuse leave to appeal nor the decision of the Upper Tribunal found that the language betrayed any bias. The High Court in the judicial review proceedings was satisfied that while the judge ’ s findings on credibility were “savage”, he had considered all the evidence. The Government argued that the findings were justified in the light of the vague and implausible account given by the first applicant.

98. The Government noted the first applicant ’ s acknowledgement that her case hung primarily on her credibility. Personal credibility was a matter in respect of which the Court had to give due weight to the assessment of the domestic authorities since they had enjoyed the opportunity to see, hear and assess the demeanour of the individuals concerned. Although asylum seekers were generally to be given the benefit of the doubt when it came to credibility assessment, where there were strong reasons to question the veracity of an account the asylum seeker was required to provide a satisfactory explanation for the discrepancies. The Government emphasised that the domestic authorities had found the first applicant ’ s account of events to be entirely lacking in credibility. The allegation that she had been raped had to be considered in the context of the prior rejection of the credibility of her entire account of events: if the claim that she had been detained and ill-treated was justifiably rejected, so too was her claim that the ill-treatment included rape. There was no evidence that the serious and fundamental inconsistencies and implausibilities in her account could be explained by her alleged rape.

99. The Government did not accept that the first applicant ’ s return on a charter flight placed her at serious risk of ill-treatment. The Asylum and Immigration Tribunal in TK had found that a return on a January 2009 charter flight was a “relatively minor contributing factor at best”, and this judgment had been broadly approved by this Court in E.G. , cited above , § 69 . There was nothing to suggest that, by September 2011, returning the applicant on a charter flight would lead to a violation of Article 3; nor was there any evidence since the applicant ’ s removal to demonstrate that return on a charter flight gave rise to a risk of ill-treatment. The British official who had met the flight reported no ill-treatment (see paragraphs 62-66 above). The Government did not accept that detention centre officials had packed the first applicant ’ s bags for her, but in any case the fact that the authorities were made aware that she had claimed asylum did not expose her to a risk of ill-treatment. As regards the letter provided from a doctor at the hospital where the first applicant claimed to have sought treatment (see paragraph 60 above), there were no reasons provided in the letter for the conclusion that the “scratches” and “bruises” were caused by torture. The Government considered that the first applicant ’ s poor credibility concerning events prior to her arrival in the United Kingdom inevitably cast doubt on her account of ill-treatment after her return.

100. Finally, the fact that the first applicant had threatened to commit suicide did not prevent her deportation. The first suggestion that she was suicidal came some two years after her asylum interview and the information available at the time of her return did not demonstrate either a high risk of suicide or any serious mental illness. Further, as the first applicant accepted, precautions were taken to alleviate any risk of suicide while in detention. In particular, she was placed on suicide watch, although the Government considered that the detention records did not support the claim that there was a genuine suicide risk in her case (see paragraph 43 above). There were no exceptional circumstances in the present case.

2. The first applicant

101. The first applicant maintained that s he had been at real risk of ill ‑ treatment upon her return to Sri Lanka. She insisted that, prior to her arrival in the United Kingdom and after her removal, she had been detained and tortured as described. She had further corroborated her account with letters from lawyers and doctors, although she accepted that some aspects of her treatment in Sri Lanka in 2009 had to be determined by reference to her credibility. In this respect, any inconsistencies in her account of events were minor and did not undermine the overall credibility of her story. In any event, they were explained by her mental health problems and by the severe physical, sexual and psychological trauma she had suffered. Her credibility was bolstered by the internal consistency of her descriptions, the direct documentation and the external consistency with abuse documented in other reports. However, in her case the decision-makers had not taken into account widely-available evidence concerning torture in Sri Lanka and had made unsupported and inaccurate findings in respect of her personal credibility . The particularly rigorous risk assessment required did not occur in her case. She invited the Court to make its own findings of fact.

102. On the question of her delay in making an asylum claim, the first applicant pointed out that she had made the claim a mere three weeks after arriving in the United Kingdom. She further emphasised that she spoke no language other than Tamil and would therefore not have been able to read signs at the airport in English; and that her mother had been admitted to hospital with gallstones and pancreatitis, and was kept in hospital for four days.

103. As to her failure immediately to disclose the fact that she had been raped, she explained that she had been traumatised and had felt unable to disclose it in front of her brother and other men. She claimed that the male translator at the screening interview had prevented her from speaking out, and argued that the authorities should provide woman claimants with female interpreters and interviewers automatically. Although the asylum interview was conducted by a woman with the aid of a female interpreter, she could hear conversations taking place outside the room, which diminished her sense of privacy. She further contended that questions relevant to gender-based violence and gender-related persecution ought to have been asked and alleged that, confronted with general questions about what had happened during her detentions, she did not understand that the interviewer would be interested in the sexual assaults she had experienced or that they would be relevant to her asylum claim. She contended that her interviewer ought to have realised from her account that sexual assault might have occurred and that inquiries ought to have been made. She referred to the findings in the psychiatric report that she had displayed “clear signs of distress consistent with emotional trauma” as she gave an account of her arrest, torture and rape at the hands of soldiers.

104. The first applicant further argued that the Immigration Judge had used language which called into question his reasoning. She maintained that there was a real possibility that the judge was prejudiced against her, although she clarified that she did not include “judicial bias” among her complaints. The Immigration Judge could have requested additional evidence regarding perceived inconsistencies but instead had adopted a hostile tone. She claimed that the judge ’ s prejudice prevented him from making accurate findings regarding the merits of her asylum claim, arguing that it was not possible to separate the judge ’ s reasoning from his inappropriate language. She did not accept that the determination was “not immoderate in tone or unjudicial”.

105. As to the events after her return, the first applicant argued that the presence of the British officials at Colombo airport to greet the flight indicated an awareness of the risk of ill-treatment. She maintained that immigration removal centre officials had packed her asylum papers in her bag, clarifying that she did not allege any malicious intent but negligence. The description of the procedure on arrival was consistent with her own account of her interrogation. The official ’ s second letter dated a year after her return did not provide any documentation to support its reliability. In any event, as she had explained, her rape and torture occurred after she had left the airport. There was no reason to doubt the authenticity of the doctor ’ s letter, which bore an official stamp.

106. Finally, the first applicant contended that her risk of suicide on return had not been adequately considered in the context of her challenge to removal. She contended that she had made a claim of mental illness in her original asylum application by her reference to the fact that she was “confused and psychologically scarred”. In her view any reasonable decision-maker would have understood the nature of her claim. She had provided extensive documentation attesting to her suicidal ideation and risk. In particular, the psychiatric report demonstrated that she faced a real risk of suicide if she was deported, and this was corroborated by the fact that she had been placed on suicide watch. She emphasised the “near-total lack” of qualified psychiatrists in Sri Lanka and the scarcity of other mental health professionals in the country. She maintained that the authorities had failed to carry out an assessment of the risk posed and that no comprehensive plan had been put in place.

107. The first applicant invited the Court to find that many of the other non-exclusive and recognised risk factors were also present in her case, which ought to have led to the conclusion that she was at risk of ill ‑ treatment. In particular, she was of Tamil ethnicity, was returned from London and had made an asylum application in the United Kingdom. She concluded that she had therefore been returned to Sri Lanka in breach of the respondent State ’ s obligation under Article 3 of the Convention.

3. The third-party interveners

108. Human Rights Watch (“HRW”) argued that in order to determine the extent of any risk of ill-treatment, it was appropriate for the Court to weigh a range of material, including general accounts of the situation in Sri Lanka and specific and credible reporting of particular incidents of ill-treatment. HRW agreed that the risk factors identified in LP and confirmed in TK remained the relevant minimum framework of assessment of risk on return at the relevant time.

109. As to the risk of suicide, HRW submitted that where a current risk of suicide was causatively linked to ill-treatment experienced in the receiving State, the case fell to be considered in a way that was conceptually different from the case of N. v. the United Kingdom [GC], no. 26565/05 , § 72, ECHR 2008 , because the reasoning in N. was applicable only to naturally occurring illness. HRW was of the view that Sufi and Elmi v. the United Kingdom , nos. 8319/07 and 11449/07 , § § 281-283 , 28 June 2011 , supported the argument that it was not appropriate to follow the N. analysis where the risk of suicide was the consequence of acts of the authorities of the receiving State. They accepted that the first step in any analysis required an applicant to demonstrate that she had in the past experi enced ill ‑ treatment from acts in the country of origin which had given rise to a risk of suicide.

B. The Court ’ s assessment

1. General principles

110. A s a matter of well-established international law, and subject to their treaty obligations , Contracting States have the right to control the entry, residence and removal of aliens. Neither the Convention nor its Protocols confer the right to political asylum. However, expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3. In such a case Article 3 implies an obligation not to deport the person in question to that country (see Saadi v. Italy [GC], no. 37201/06 , §§ 124-125, ECHR 2008 ; NA. , cited above, § 109; and F.N. v. the United Kingdom (dec.), no. 3202/09, § 26, 17 September 2013 ).

111. In order to determine whether there is a risk of ill-treatment, the Court must examine the foreseeable consequences of sending the applicant to the receiving country, bearing in mind the general situation there and her personal circumstances ( see Saadi , cited above, § 130; and F.N. , cited above, § 27) . Ill -treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim ( see N. , cited above, §§ 29-31 ; and F.N. , cited above, § 28 ).

112. In determining whether substantial grounds have been shown for believing that there is a real risk of treatment incompatible with Article 3, the Court will take as its basis all the material placed before it or, if necessary, material obtained proprio motu . Its examination of the existence of a real risk must necessarily be a rigorous one. It is in principle for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if the deportation measure were to be implemented, s he would be exposed to a real risk of being subjected to treatment contrary to Article 3 (see Saadi , cited above, §§ 128-133 ; and F.N. , cited above, § 27 ). O wing to the special situation in which asylum seekers often find themselves, it is frequently necessary to give them the benefit of the doubt when it comes to assessing the credibility of their statements and the documents submitted in support thereof. However, when information is presented which gives strong reasons to question the veracity of an asylum seeker ’ s submissions, the individual must provide a satisfactory explanation for the alleged discrepancies (see H.N. and Others v. Sweden (dec.), no. 50043/09, 24 January 2012; S.H.H. v. the United Kingdom , no. 60367/10, § 71 , 29 January 2013 ).

113. Aliens who are subject to expulsion cannot in principle claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance and services provided by the expelling State. The fact that an applicant ’ s circumstances, including her life expectancy, would be significantly reduced if she were to be removed from the Contracting State is not sufficient in itself to give rise to breach of Article 3. The decision to remove an alien who is suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness are inferior to those available in the Contracting State may raise an issue under Article 3, but only in a very exceptional case, where the humanitarian grounds against the removal are compelling (see N. , cited above, §§ 42-45; H.N. and Others , cited above; and F.N. , cited above, § 28 ). T he fact that a person, whose deportation has been ordered, threatens to commit suicide does not require the Contracting State to refrain from enforcing the deportation provided that concrete measures are taken to prevent the threat from being realised (see H.N. and Others , cited above).

114. The existence of the risk must be assessed primarily with reference to those facts which were known or ought to have been known to the Contracting State at the time of expulsion (see Saadi , cited above, § 133 ; and F.N. , cited above, § 27 ). The Court is not precluded, however, from having regard to information which comes to light subsequent to removal (see Mamatkulov and Askarov v. Turkey [GC] , nos. 46827/99 and 46951/99, § 69 , ECHR 2005 ‑ I ) .

2. Application of the general principles to the facts of the case

115. The applicant ’ s Article 3 challenge to her removal consists of two separate arguments: first, that her removal to Sri Lanka put her at real risk of ill-treatment from the authorities there; and second, that her removal created or exacerbated a real risk of suicide and psychiatric illness.

( a ) Risk of i ll-treatment by the authorities

116. The Court has already accepted, in cases concerning returns to Sri Lanka, the legitimacy of assessing individual risk to returnees on the basis of a list of risk factors identified by the domestic authorities (see NA. , cited above, § 129; and E.G. , cited above, § 69). The list of relevant risk factors to which the domestic authorities referred at the time of the first applicant ’ s deportation in September 2011 was set out in the domestic country guidance cases of LP and endorsed in TK (see paragraph 71 above).

117. In E.G. , cited above, §§ 68-69, the Court confirmed the continuing applicability of the LP risk factors and agreed with the finding in TK that, since the end of hostilities in Sri Lanka, the likelihood of a returning Tamil being the subject of the Sri Lankan authorities ’ adverse interest had, if anything, declined. The judgment in E.G. was published on 31 May 2011, a mere four months before the first applicant ’ s removal from the United Kingdom. In a series of cases subsequent to the first applicant ’ s removal, the Court reiterated that the relevant risk factors remained those set out in LP and endorsed in NA . (see, for example, H.A.L. v. the United Kingdom (dec.), no. 61533/10, § 42, 22 May 2012; Mo. P. v. France (de c.), no . 55787/09, § 78 , 30 April 2013 ; and R.J. v. France , no. 10466/11 , § 37 , 19 September 2013 ). HRW, in their third party observations, accepted that the LP risk factors remained the framework for assessment of risk on return at the time of the first applicant ’ s removal. The Court will therefore examine the first applicant ’ s complaint by reference to these risk factors.

118. It is not in dispute that the first applicant has Tamil ethnicity (risk factor 1) and that she was returned from London (risk factor 8). The Court is further satisfied that, given the applicant ’ s return on a charter flight, the Sri Lankan authorities were at the very least likely to suspect that she had made an asylum claim abroad (risk factor 11). It is therefore prepared to proceed on the basis that this risk factor was also present and in these circumstances it is not necessary to resolve whether officials at the immigration removal centre accidentally packed her asylum papers in her luggage. The presence of other risk factors is disputed.

119. The three risk factors identified in the preceding paragraph are background factors which, on their own, are not sufficient to establish a risk of ill-treatment (see E.G. , cited above, § 73; and H.A.L. , cited above, § 44). It is therefore necessary for the first applicant to establish the existence of other specific factors which, when viewed alongside the background factors, would give rise to a real risk of ill-treatment. In addition to the three risk factors already mentioned, she claims that she was detained, tortured and raped by the Sri Lankan authorities (because she was perceived as an LTTE affiliate – risk factor 2); and that she escaped from custody in March 2009 (risk factor 4).

120 . The question whether these two specific risk factors have been made out depends on an assessment of the truth of her account of past events. The evaluation of her credibility is therefore an integral and key component of the assessment of the risk of ill-treatment on return. It is significant that her claim that she was arrested, detained and tortured in February and March 2009 was roundly rejected after detailed and careful examination by both the Secretary of State and the Immigration Judge, who had an opportunity to see the first applicant give evidence in person and to witness her demeanour. In particular, the latter described the first applicant ’ s account of her March 2009 detention and torture as “ludicrously lacking credibility”, highlighting a number of inconsistencies and gaps in her account. Although the judge used strong language, it is clear from his judgment that he had careful regard to all of the evidence presented and considered the facts of her case in the context of the wider objective evidence. He also turned his mind to possible explanations for the inconsistencies before rejecting them for sound reasons. In essence, the first applicant is seeking to litigate d e novo before this Court issues of fact and credibility which were already comprehensively considered and determined by the national executive and judicial authorities. However, no grounds have been established to permit this Court to go behind the domestic authorities ’ findings on these matters.

121 . The first applicant ’ s belated allegation that the ill-treatment, which the domestic authorities did not accept had ever occurred, sustained during a period of detention which the authorities found had never taken place, included rape was unlikely to, and ultimately did not, make any difference to the outcome of her asylum claim. In reaching their decision, the domestic authorities did not automatically make an adverse credibility finding simply on account of the first applicant ’ s delay in making the allegation. They had regard to the reasons advanced for the late disclosure of the rape allegations but found them to be unpersuasive for reasons which were fully explained. If the applicant was indeed dissuaded from disclosing the rape allegations because of the gender of those advising and assisting her, she has failed to explain satisfactorily why she did not request a female interviewer and interpreter when specifically asked in her asylum screening interview; why she did not disclose the fact that she had been raped when interviewed by a female interviewer and interpreter; or why she subsequently felt able to make a disclosure to staff at the immigration removal centre two weeks before her planned departure. Although she invoked the psychiatrist ’ s report in order to support her submission that she had failed to disclose the rape because of “trauma”, it is noteworthy that while he commented generally that it was not unusual for trauma victims to distort memories or forget details, he did not specifically find evidence of dissociation in the first applicant ’ s case (see paragraphs 40-41 above). The report did not offer any convincing or plausible reasons for the numerous inconsistencies and gaps in the first applicant ’ s account of events and the psychiatrist expressly declined to comment on her credibility. In the subsequent judicial review proceedings, the High Court judge who considered the first applicant ’ s renewed application for permission found that none of the late evidence submitted, including the medical evidence, provided a “sensible or satisfactory” explanation for the failure to mention these important allegations at the time of the original appeal (see paragraph 57 above). It is also important that the first applicant ’ s credibility had already been seriously undermined by the conclusions in the original asylum proceedings and the authorities were entitled to take that into account when assessing the plausibility and reliability of her latest allegations.

122 . As to the first applicant ’ s claim that she was detained, tortured and raped upon her return to Sri Lanka, the damage suffered to her credibility during the asylum proceedings inevitably undermines her account. The recollection of the British High Commission official (see paragraphs 62-66 above) tends to cast doubt on her version of events, since had the authorities wished to arrest her, they could have done so during their interrogation at the airport, as they did with another of the returnees on her flight. Further, as the Government have pointed out, there is no detailed medical report showing the full extent of her alleged injuries and exploring possible causes. The brief doctor ’ s letter provided (see paragraph 60 above) is insufficient to corroborate her account, even if it were sufficiently reliable to be taken into account. In particular it does not explain how the doctor reached the conclusion that the unspecified “injuries”, scratches around her neck and bruises on her face were caused by torture.

123 . In conclusion, the Court is satisfied that the domestic authorities considered all relevant factors in the applicant ’ s case and rejected her claim for asylum and humanitarian protection on grounds that were both fair and reasonable. She has therefore failed to adduce evidence capable of proving that there were substantial grounds for believing that, if returned to Sri Lanka, s he would be exposed to a real risk of being subjected to treatment contrary to Article 3.

(b ) Risk of suicide

124 . In respect of the first applicant ’ s claim that her return to Sri Lanka breached Article 3 on account of her risk of suicide, it is important to emphasise that the allegations concerning her fragile mental health were made at a very late stage in the proceedings. Her reference in her asylum application to being “confused and psychologically scarred” (see paragraph 5 above) appears to have been an attempt to rely on LP risk factor 7 (see paragraph 71 above). It was inadequate to amount to an allegation of serious mental illness or suicide risk, and no reasonable person would have understood the reference as constituting such an allegation. She first alerted the authorities when she was already in immigration detention, less than two weeks before her scheduled removal. Her claims were nonetheless considered by the Secretary of State and rejected, with reasons provided. The psychiatric report instructed on her behalf concluded that she was suffering from depression and, assuming that she had been tortured and raped in detention, post-traumatic stress disorder (see paragraph 39 above). However, as noted above, her version of events was rejected and, since it has not been established that there was any triggering traumatic event, the diagnosis of post-traumatic stress diso rder and the claim that her ill ‑ treatment caused her to contemplate suicide at the threat of return must also be in doubt.

125. Further, there was nothing in the psychiatric report to indicate that she was imminently or actively suicidal or that she suffered from mental health problems of such a nature and degree that her removal would meet the Article 3 threshold on this account (see paragraph 42 above). Although various GP letters and reports record the first applicant ’ s own claim that she had tried to commit suicide, there is no independent evidence to corroborate any of the alleged suicide attempts. The detention records do not paint a picture of an individual at serious risk of self-harm or in the grips of depression, noting as they do that she socialised with others, ate regular meals and did her washing (see paragraph 43 above). Further, the psychiatrist ’ s report attributed the recent worsening of her mental state to her immigration detention (see paragraph 42 above), and it was therefore not unreasonable for the Secretary of State to conclude that it would improve after her return to Sri Lanka. While the first applicant referred to the “near-total lack” of qualified psychiatrists in Sri Lanka, she has failed to provide any evidence of the limited treatment options available. The psychiatrist explained that he was unable to comment on the availability of appropriate treatment in Sri Lanka (see paragraph 42 above). It is further of relevance that the United Kingdom authorities took steps to protect the first applicant as soon as they were alerted to the possibility that she might be a suicide risk. She was immediately placed on suicide watch in immigration detention, with hourly observations. Her fitness to travel was assessed and did not reveal any issue which would prevent her return on medical grounds. The applicant has not suggested that these steps were in any way inadequate to protect her safety.

126 . In light of the above, the Court is satisfied that t he contention that the first applicant ’ s removal would lead to an increased risk of suicide or a further deterioration in her mental health was largely speculative (see Bensaid v. the United Kingdom , no. 44599/98, § 39 , ECHR 2001 ‑ I ; S.H.H. , cited above, § 87; and F.N. , cited above, § 31) . H aving regard to the high threshold set by Article 3 , the first applicant has not shown that at the time of her removal her case was an exceptional one, with compelling humanitarian grounds against removal.

(c ) Conclusion

127. The first applicant has therefore failed to show that her removal to Sri Lanka violated her rights under Article 3. Her complaint is accordingly manifestly ill-founded and inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

I I I. ALLEGED VIOLATION OF ARTICLE 6 AND ARTICLE 13 TAKEN TOGETHER WITH A RTICLE 3

128 . The first applicant alleged that where a failed asylum seeker made a new claim with information which showed that there were serious grounds for believing there was a real risk that her expulsion would expose her to treatment contrary to Article 3, Article 6 required that she be allowed a hearing prior to her removal and Article 13 require d that the refusal of the claim be accompanied by a remedy with automatic suspensive effect. It is clear that the applicant ’ s Article 6 complaint is, essentially, a reformulation of her complaint under Article 13 that the holding of a hearing only after her removal did not allow proper consideration of her Article 3 complaint. The Court therefore considers it appropriate to assess the complaint under Article 13 only, which provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

A. The parties ’ submissions

1. The Government

129. The Government emphasised that the first applicant ’ s Article 3 claim had been given repeated and detailed consideration by the national authorities. She was interviewed twice by Home Office staff, was given a detailed decision letter, enjoyed a right of appeal to the First-tier Tribunal and had a right to seek permission to appeal from both the First-tier Tribunal and the Upper Tribunal. Despite having had the opportunity over two years to raise her claim of rape, she had failed to do so until 15 September 2011, after removal directions had been set and when she was already in immigration detention.

130. The Government further argued that the first applicant ’ s fresh representations were given careful consideration by the Secretary of State. If she had accepted that they constituted a fresh claim, the first applicant would have been entitled to go again to the First-tier Tribunal, proceedings which would have had suspensive effect. The threshold for a fresh claim was low but the first applicant had still failed to satisfy it because she did not establish that her claim for asylum had reasonable prospects of success in light of the new information. In particular, she had failed to address or undermine the reasons already given for rejecting her credibility. Her fresh representations could not be considered in isolation from her asylum claim generally, which had been considered in careful detail in proceedings which had suspensive effect so as to satisfy the requirements of Article 13. In so far as the further representations were to be considered separately, there was no “arguable” grievance to require a further remedy, as demonstrated by the refusal of permission in t he judicial review proceedings.

131. In conclusion, the Government argued that the first applicant ’ s case was far removed from cases such as Hirsi Jamaa and Others v. Italy [GC], no. 27765/09 , § 202 , ECHR 2012 , because she had had the benefit of repeated, detailed and individualised consideration of her claims by administrative and judicial authorities. They invited the Court to find that Article 13 had been satisfied.

2. The first applicant

132. The first applicant argued that when new information raised substantial grounds for believing that there was a real risk of ill-treatment on return, there had to be a remedy with automatic suspensive effect. This, she claimed, was an integral part of the effectiveness of the remedy under Article 13. She did not challenge in general terms the rule of domestic law which allow ed the Secretary of State to refuse to recognise representations as a “ fresh claim ” and accepted that i n some circumstances it would be entirely appropriate for the authorities to refuse to consider a subsequent asylum claim as a fresh claim.

133. She did not agree that her claim had been given repeated and detailed consideration by the national authorities. The first set of proceedings dealing with the asylum claim could not be considered an effective remedy but rather the decision against which an effective remedy was required. Further, the asylum proceedings were not conducive to her disclosing the rape, and so she could not have been expected to raise it. The examination of her credibility eclipsed a real examination of the harm that she had experienced. The revelation that she had been raped was so substantial as to amount to a new claim under Article 3. She agreed that her fresh claim submissions could not be looked at in isolation but had to be considered in the context of all the remedies enjoyed. The Immigration Judge ’ s assessment was inadequate, for the reasons given and the Government had not explained why the new claim was not an arguable complaint attracting Article 13 protection.

134. The first applicant emphasised that she had been permitted to lodge a last-minute judicial review claim. The authorities usually exercised their discretion to remove those who had lodged claims from a flight scheduled to depart. However, there was a difference in treatment concerning charter flights. The delay in her lodging her claim was irrelevant since the point was that judicial review proceedings had no suspensive effect. The policy was inadequate since there was only one “immediates” judge. It was also irrelevant that the First-tier Tribunal transcript had not been submitted since the judge did not reach her case before her departure. She invited the Court to give little weight to the comments of the High Court in the judicial review proceedings since they were made several months after her removal in proceedings without suspensive effect.

B. The Court ’ s assessment

135. T he primary responsibility for implementing and enforcing the guaranteed rights and freedoms is laid on the national authorities. The machinery of complaint to the Court is thus subsidiary to national systems safeguarding human rights. This subsidiary character is articulated in Articles 13 and 35 § 1 of the Convention . Article 13 guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief. The scope of the Contracting States ’ obligations under Article 13 varies depending on the nature of the applicant ’ s complaint; however, the remedy required by Article 13 must be “effective” in practice as well as in law ( see M.S.S. , cited above §§ 287-288).

136. In order to determine whether Article 13 applies to the present case, the Court must ascertain whether the first applicant ’ s further submissions that she had been raped in detention and that she was at risk of suicide amounted to an “arguable claim” that her removal to Sri Lanka would infringe Article 3 of the Convention in all the circumstances of her case .

137. In the context of the first applicant ’ s original asylum proceedings, her Article 3 claim was carefully examined and she enjoyed various remedies, all of which had suspensive effect. The outcome of those proceedings was that her claim was found to be wholly without credibility and her account that she had been detained and tortured by the Sri Lankan authorities was entirely rejected. The Court has upheld the integrity of those proceedings and the findings reached (see paragraph 120 above). It is against this backdrop that the Court must examine whether the first applicant ’ s subsequent allegations that she had been raped or that she was at risk of suicide amounted to an “arguable claim” under Article 3, for the purposes of Article 13.

138. The Court is satisfied that the further submissions did not disclose an “arguable claim”, for the reasons set out in the analysis of her Article 3 complaint (see paragraphs 120-126 above). The first applicant did not challenge the Secretary of State ’ s general discretion to refuse to recognise representations as a “ fresh claim ”, and she has not shown why the Secretary of State ’ s conclusion in her case was objectionable. She did not address the serious credibility issues which had led to the failure of her original asylum claim. The psychiatric report upon which she relied to justify her failure to mention the rape earlier and to provide evidence of her poor mental health depended on the assumption that a primary traumatic event had occurred, but this assumption had already been found to be incorrect; and the report did not offer any convincing or plausible reasons for the numerous inconsistencies and gaps in the first applicant ’ s account of events. In the subsequent judicial review proceedings, the High Court considered all of the evidence relied upon, including the medical evidence, and held that the first applicant had provided no sensible or satisfactory reason for the delay in making the rape allegations.

139. In the circumstances, since the applicant had no arguable claim in respect of her complaint under Article 3 that she had been raped in detention in Sri Lanka or that she was at risk of suicide on return, Article 13 did not apply to the decision to refuse to treat her further submissions as a fresh asylum claim. The complaint under Article 13 is accordingly rejected under Article 35 §§ 3 (a) and 4 of the Convention.

IV . ALLEGED VIOLATION OF ARTICLE 14 TAKEN IN CONJUNCTION WITH ARTICLE 3 OF THE CONVENTION

140. Finally, the first applicant claimed that where an applicant has made an arguable claim that she was raped, the authorities of the State in which asylum was claimed had to examine the allegations in a manner that reflected the unique and grave nature of the harm inflicted by gender-based violence, as distinct from other forms of ill-treatment. She relied on Article 14, taken together with Article 3, which provides:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

141. The Court has found that the first applicant ’ s claim that she had been raped was, in the context of the previous consideration of her asylum claim and allegations of ill-treatment, not arguable. In the circumstances there is no evidence of any issue under Article 14 of the Convention. The complaint under Article 14, taken together with Article 3, must therefore be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court by a majority

Declares the application inadmissible.

Françoise Elens-Passos Ineta Ziemele Registrar President