JOINT DISSENTING OPINION OF JUDGE S GARLICKI AND KALAYDJIEVA

1. It is with regret that we cannot follow the position of the majority in this case.

We do not challenge the general finding that, given the evolution of the situation in Sri Lanka , group-based protection may no longer be necessary. However, we are of the opinion that the applicant ’ s personal situation does not allow his deportation to this country without a risk of exposing him to treatment contrary to Article 3 of the Convention.

2. The majority identified (see paragraphs 73-77) eight “risk factors” in the applicant ’ s case: (1) Tamil ethnicity; (2) asylum claim abroad; (3) return from London; (4) probable lack of identity documents; (5) previous membership of the LTTE; (6) active nature of that membership; (7) previous arrest because of the LTTE involvement; (8) scarring on scalp, legs and elbows.

It may be added that while the applicant did not jump bail or escape from custody, one of the conditions of his release was to report regularly to the army camp. It seems that he never complied with that condition and, therefore, his situation is, at least to some extent, analogous to the two above-mentioned factors.

The position of the majority seems to be based on two assumptions: (1) that no record of the applicant ’ s previous arrest had been kept (paragraph 75); and (2) that the applicant ’ s scarring would not cause him to stand out or bring him to the attention of the authorities. As to the latter, we would like, however, to draw attention to Dr Smith ’ s report, which described the applicant ’ s scars as “visible and significant” (paragraph 78).

We agree that, with some luck, the applicant may avoid arrest and detailed investigation on his arrival at Colombo airport. We are not sure, however, that our understanding of human rights allows us to make someone ’ s fate contingent on being lucky in relation to the authorities rather than on a reliable assessment of the probability of the risk faced in the specific individual circumstances.

3. We are convinced that the cumulative assessment of the risk factors mentioned above suggests that the applicant may be exposed to a clear and genuine danger of ill-treatment if returned to Sri Lanka .

Of course, any assessment of the risks and consequences of deportation is speculative. That is why, a “lesser evil / lesser risk” approach may be proposed. If the applicant is not deported, even if there is no genuine risk of ill-treatment, the United Kingdom would be compelled to tolerate an illegal immigrant it does not want to keep on its soil. If the applicant is deported and if the risk of ill-treatment is genuine, he would at best be exposed to inhuman and degrading treatment by the Sri Lankan authorities.

In both situations an error of assessment would have negative consequences. The only difference is that if the former scenario materialises , the United Kingdom is likely to survive our mistake; whereas if the latter scenario comes true, the applicant may not survive. This difference leads us to the conclusion that we cannot afford any experimentation in this case.