Responses to Information Requests

Research Directorate, Immigration and Refugee Board of Canada

1. Overview

According to an article by The Guardian, human trafficking networks take advantage of Sri Lanka's economic crisis to "coerce some of the country's poorest and most marginalised" people to leave the country by boat (2022-06-25). The same article cites a Sri Lankan Tamil asylum seeker who was charged 900,000 Sri Lankan rupees (LKR) [C$4,095] for boat passage to Australia where he was eventually returned by authorities to Sri Lanka (The Guardian 2022-06-25). The Guardian article also notes that 79 asylum seekers aboard 3 different boats which reached Australian waters between 24 May 2022 and 10 June 2022 were "forcibly" sent back to Sri Lanka by the Australian authorities and were subsequently "arrested and jailed" upon return to Sri Lanka (2022-06-25). According to a senior police source cited in the same article, those who try to leave Sri Lanka by boat are "some of the poorest people in the country, from Tamil-majority areas previously ravaged by war such as Vavuniya, Killinochi, Mullaitivu and Trincomalee" (The Guardian 2022-06-25).

An article from the International Organization for Migration (IOM) website details the rescue of 303 Sri Lankan migrants who were saved from a sinking vessel while attempting to reach Canada (UN 2024-01-16). According to the same source, the migrants boarded the vessel from Myanmar; after the ship began sinking, the migrants were saved by a Japanese ship and transported to Vietnam where they were voluntarily repatriated by IOM back to Sri Lanka (UN 2024-01-16).

2. Legislation
2.1 The Immigrants and Emigrants Act

The 1948 Immigrants and Emigrants Act of Sri Lanka provides the following:

34. Persons to leave Sri Lanka from approved ports of departure.

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

35. Passports required for departure from Sri Lanka.

No person to whom this Part applies shall-

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

…

37. Identification of persons entering and leaving Sri Lanka.

(1) Every person entering or leaving Sri Lanka shall furnish to any authorized officer such information as that officer may require for the purpose of ascertaining whether that person is or is not a citizen of Sri Lanka.

…

38. Identification of persons.

For purposes of this Act it shall be lawful for any person authorised by the Controller, or for a police officer not below the rank of a sergeant, or for an authorised member of the Forces not below the rank of a corporal or leading seaman, to take all such steps as may be reasonably necessary for photographing, measuring. Finger printing and otherwise identifying—

1. any person who is not a citizen of Sri Lanka; or
2. any person who is suspected or alleged to have committed an offence under this Act.

…

45. Offences.

(1) Any person who—

1. enters or remains in Sri Lanka in contravention of any provision of this Act or of any order or regulation made thereunder;
2. leaves Sri Lanka in contravention of any provision of this Act or of any order or regulation made thereunder; … (Sri Lanka 1948, bold in original).

A report by Australia's Department of Foreign Affairs and Trade (DFAT) indicates that "returnees who departed Sri Lanka irregularly by boat are considered to have committed an offence" under the 1948 Immigrants and Emigrants Act punishable by "imprisonment of up to five years and a fine" (2024-05-02, para. 5.36, 5.48). According to the same source, seeking asylum abroad for citizens of Sri Lanka is "not a crime" (Australia 2024-05-02, para. 5.36). Furthermore, the same source mentions that "while passengers of illegal maritime ventures are bailed and released, those identified as being complicit in the organisation of a venture are charged with more serious offences and typically refused bail and remanded in custody" (Australia 2024-05-02, para. 5.48).

2.2 The Prevention of Terrorism Act (PTA)

According to sources, Sri Lanka's PTA was initially "passed" (Amnesty International 2022-02) or "enacted" (HRW 2022-02-07, 1) in 1979 (Amnesty International 2022-02; HRW 2022-02-07, 1). Human Rights Watch (HRW) notes that the PTA permits arrests without warrant for "unspecified 'unlawful activities,'" and provides "for up to 18 months on government issued detention orders without a court appearance, or opportunity for bail" (HRW 2022-02-07, 14). Amnesty International indicates that the PTA provides for the following:

• Detainees can be held for up to 18 months without charge.
• Arbitrary orders can be made by the Minister of Defence, restricting freedom of expression and association, with no right of appeal in courts.
• Contains special rules of evidence, allowing for confessions to be admissible in court.
• Places the burden on a suspect to prove to a court that a statement was made under duress.
• Unclear provisions on procedure of granting bail and therefore some detainees are not granted bail due to this lack of clarity. (2022-02)

3. Treatment by Authorities

Australia's DFAT report indicates that it is unaware of cases of "returnees being mistreated" by Sri Lankan authorities in the process of "identify[ing] someone trying to conceal a criminal or terrorist background, or trying to avoid court orders or arrest warrants" (2024-05-02, para. 5.39). The same source notes that failed asylum seekers "may face further questioning" from the authorities depending on whether they left the country legally or not, whether they are travelling on a temporary travel document, or whether they have a criminal background (Australia 2024-05-02, para. 5.39). Australia's DFAT report adds that failed asylum seekers may face further questioning from Sri Lankan Immigration, the State Intelligence Service (SIS), Navy Intelligence (SLNI) and the Criminal Investigation Department (CID) (2024-05-02, para. 5.39).

In correspondence with the Research Directorate, a senior lecturer with the Department of Economics at the University of Jaffna in Sri Lanka mentioned that "if immigration authorities are aware" that a Sri Lankan person, including a failed asylum seeker, "had left the country with forged documents or through alleged human traffickers," they "could" "questio[n]" such returnees to learn about human traffickers "in order to deter such irregular migration in the future" (Senior Lecturer 2024-06-29). The same source added that unless returnees are suspected of "criminal or terrorism activities," they are "unlikely" to face legal consequences (Senior Lecturer 2024-06-29). The Senior Lecturer, when asked if the treatment of returnees varies across different ethnic, political, or socioeconomic profiles, stated that there is "not much discrimination" faced by returnees on the grounds of their "ethnicity, religion, etc." (2024-06-29). For information on entry and exit procedures at international airports, including security screening and documentation required for citizens to enter and leave the country, see Response to Information Request LKA201969 of July 2024.

3.1 Treatment of Returnees Upon Arrival

The information in the following paragraph was provided by Australia's 2024 DFAT report:

At the Colombo airport, returning failed asylum seekers with valid passports are processed "swift[ly]" by immigration, while the process takes longer for those returning on a temporary travel document. "[O]rganisers and facilitators of people smuggling ventures," such as captains and their crews, and persons who have outstanding court orders or arrest warrants are remanded in custody and tried in accordance with the law. Failed asylum seekers who departed Sri Lanka "illegally" undergo further questioning by immigration officers after which they get "transferred to the SIS and SLNI for questioning." Once the SIS and SLNI are done, the CID will also question the returnee and charge them with "breaking immigration law." Furthermore, large groups of returning failed asylum seekers can spend up to eight hours at the airport as all the group members must be processed before exiting, while the questioning of smaller groups or returning individuals lasts between three to four hours. Children are not questioned and stay with their parents during this process. Citing sources in Sri Lanka, Australia's DFAT report mentions that Tamil individuals in Jaffna and Batticaloa, who voluntarily returned from Australia between 2019 and 2024, have reported receiving "simple" and "less extensive" questioning by the authorities at the airport, after which "most returnees were presented before a magistrate in Negombo, charged with breaking immigration law and bailed within 24 hours." Also citing sources in Sri Lanka, the same report adds that "at the discretion of individual immigration officers," returnees in Batticaloa, including in 2023 and 2022, were not questioned by intelligence services or the police once they passed immigration, nor were they charged for leaving the country illegally. Australia's DFAT is "not aware of failed asylum seekers being subjected to mistreatment during processing at Colombo Airport and subsequent court hearings" (Australia 2024-05-02, para. 5.38, 5.40, 5.41, 5.42, 5.44, 5.45, 5.47).

In an interview with the Research Directorate, a human rights lawyer and former Human Rights Commissioner in Sri Lanka stated that failed asylum seekers and people who exited the country without the required documentation will "most likely" be interrogated by the Terrorism Investigation Division (TID), the CID, or both at international points of entry upon their return (Lawyer 2024-07-02). According to the same source, the process could take several hours after which such persons could either be:

• Released with, "often[times]," no consequent charges;
• Detained on a detention order under the PTA;
• Presented to a magistrate and remanded in prison (Lawyer 2024-07-02).

3.2 Court Proceedings and State Protection

The information in the following paragraph was provided by Australia's 2024 DFAT report:

Following processing and questioning by the authorities at Colombo airport, failed asylum seekers who departed Sri Lanka illegally are presented to a court in Negombo, which is near Colombo Airport, and are bailed with no "payment required to secure the bail." Families are not separated during the court process. The whole process, from questioning at the airport to the bail and release, "generally" takes between 12 to 24 hours to complete. People charged under the 1948 Immigrants and Emigrants Act "appear in court for bail hearings every three months for the first 12 months," after which time the frequency decreases. Court cases for those charged with illegally departing the country "typically take between 12 and 24 months" to complete, and defendants cannot travel abroad throughout the process. Defendants may also be "summoned as witnesses" in cases involving the organisers and facilitators of "illegal maritime ventures." While people convicted of illegal departure "may theoretically face a custodial sentence," as of May 2024 they are, "in practice," issued a fine of LKR 50,000 [C$228]—which can be paid in up to three installments—and are banned from travel for 5 years. In addition, children under the age of 12, or who "were younger than 12 at the time of the alleged offence," are not charged with breaking the 1948 Immigrants and Emigrants Act since the age of "criminal responsibility" in Sri Lanka is 12 years of age (Australia 2024-05-02, para. 5.43, 5.49, 5.50, 5.51).

According to the Senior Lecturer, because Sri Lankan courts are "overwhelmed by hundreds of thousands of pending cases," as they have been for decades, authorities do not "overburden" the courts with cases as "mundane" as those of returnees (2024-06-29). According to the Lawyer, the legal process in Sri Lanka is time consuming and persons can remain in remand for several weeks or months before being granted bail (2024-07-02).

The Lawyer mentioned that there are three mechanisms of state protection for returning failed asylum seekers and people who exited the country without the required documentation:

• The constitution, which protects fundamental rights;
• The Human Rights Commission, which has proven to be effective in the past, but not "currently";
• The Victim and Witness Protection Authority, which entails the involvement of the police and has, to date, been "quite ineffective" and "rarely" used by victims (2024-07-02).

The Senior Lecturer noted that part of the mandate of the Human Rights Commission of Sri Lanka is to assist returnees who might be "victimiz[ed]" by law enforcement authorities (2024-06-29).

According to the Lawyer, there have been instances of returning failed asylum seekers and people who exited the country without the required documentation who were detained for one to two days for interrogation before being released, and of others who have been detained on a detention order issued under the PTA (2024-07-02). The same source noted that if the police produce a person before the magistrate, they will file a "B report," which will contain the facts of the case, the reason for the arrest, and the law under which the arrest was made; the "B report" will also include a request to hold that person on remand where they could stay for up to 14 days before being bailed and released (Lawyer 2024-07-02).

The Lawyer indicated that, in most cases—with the exception of those suspected of terrorism—individuals who are caught trying to leave Sri Lanka via boat to Australia and are produced before the magistrate will receive a fine (2024-07-02). The same source added that Tamil failed asylum seekers, and particularly those from the north and east of the country, are "more likely" to be arrested and detained under the PTA upon their return (Lawyer 2024-07-02). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

3.3 Monitoring

According to the Swiss Refugee Council (Organisation suisse d'aide aux réfugiés, OSAR), a politically and religiously independent non-profit public benefit organization with its head office in Berne, Switzerland (OSAR n.d.a), civil society organizations and human rights activists face surveillance and harassment by security forces and intelligence services in the northern part of the country (OSAR n.d.b). Freedom House reports that "Tamil areas remain under surveillance" and "NGOs and activists—particularly those in the north and east that focus on sensitive topics such as military impunity—have been subjected to denial of registration, surveillance, harassment, and assaults" (2024-02-29, Sec. G1, E2). According to Groundviews, a "citize[n] journalism website based in Sri Lanka" (Groundviews 2008-04-10), human rights defenders, journalists, and families of those who were disappeared are "continually being harassed and monitored" by intelligence services, military and police in the north (Groundviews 2022-11-23). The Lawyer stated that the security agencies carry out "surveill[ance] and harass journalists, former combatants, persons released after being detained under the PTA, families of the disappeared and human rights activists" (2024-07-02). The same source noted that returning failed asylum seekers and people who exited the country without the required documentation and were released after interrogation or on bail, may face further questioning, surveillance, and harassment by security agencies after their release (Lawyer 2024-07-02).

Without providing further details on the sources consulted, Australia's DFAT reports that the sources it consulted in Sri Lanka on "the lived experience of recent failed asylum seekers from Jaffna and Batticaloa" had "no evidence of official harassment or threats to their security, including state surveillance or visits to their homes," nor "evidence of societal discrimination after returning to their communities" (2024-05-02, para. 5.55). The same report, citing "[i]n-country sources," states that "while failed asylum seekers could not discount the possibility of visits by the TID or CID in the past, including for suspected [Liberation Tigers of Tamil Eelam (LTTE)] links, such visits were very rare today, and recent returnees had not experienced this" (Australia 2024-05-02, para. 5.55). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

Australia's DFAT report, citing "[i]n-country sources," notes that returning failed asylum seekers may be monitored if they have a criminal history (2024-05-02, para. 5.57).

4. Treatment of Family Members of Persons Who Have Left Sri Lanka and Have Claimed Refugee Status

Citing sources in Sri Lanka, Australia's DFAT report mentions that close relatives of "individuals living abroad who are suspected of previous involvement with the LTTE and/or who openly promote separatism and glorify the LTTE, including online," could be "monitored and questioned" (2024-05-02, para. 3.95). According to Groundviews, the family of an "ex combatant" who left Sri Lanka for three months, was questioned by intelligence officers who "visited her parents' home regularly," even after her return (2022-11-23). According to the Lawyer, if returning failed asylum seekers and people who exited the country without the required documentation were already under surveillance before leaving the country, then "some security agencies might question or harass their families if those persons suddenly disappear" (2024-07-02). When asked about the treatment of the family members of failed asylum seekers and people who exited the country without the required documentation, by both the authorities and society, the Senior Lecturer stated that they had "never heard" of such families being targeted by law enforcement authorities or wider society (2024-06-29).

According to HRW, the authorities "have continued" to use the PTA to "threaten, detain and prosecute Tamils predominantly, as well as activists and victims' families" (HRW 2023-09-18). Amnesty International notes that the PTA has been used "to suppress dissent" (2024-05-20).

According to HRW, an Anti-Terrorism Bill before Sri Lanka's parliament as of June 2024, which is intended to replace the PTA, provides for the "president, police, and military broad scope to detain people without evidence" (2024-06-21). HRW also states that this Bill would "empower the authorities to systematically violate fundamental human rights" (2023-04-07).

5. Reintegration of Returnees

Sources stated that failed asylum seekers [including Tamil people (Lawyer 2024-07-02)] who return to the country are not "stigmatized" by their families or communities (Lawyer 2024-07-02; Senior Lecturer 2024-06-29). The Lawyer added that those returnees "might face challenges" in accessing employment in Colombo, as some employers "might" request a police report (2024-07-02). According to Australia's DFAT report, returning failed asylum seekers "can often" receive support from their families and community networks to access employment and housing, if needed (2024-05-02, para. 5.54).

According to the US Department of State's Country Reports on Human Rights Practices for 2023, the government of Sri Lanka has cooperated with UNHCR and other humanitarian organizations to provide protection and assistance to returning refugees or asylum seekers (US 2024-04-22, 34). The IOM also mentions that it "provides reintegration support to all returning migrants, including cash and/or in-kind assistance" (UN 2024-01-16). UNHCR notes that it has been providing support and assistance to "vulnerable" Sri Lankan refugees and facilitates the "voluntary repatriation" of Sri Lankan refugees living in India and elsewhere (UN n.d.).

Australia's DFAT report notes that at Colombo airport, the IOM provides cash and transportation assistance for those who have returned voluntarily (2024-05-02, para. 5.46). Sources indicate that the Legal Aid Commission of Sri Lanka provides legal support for those charged with illegal departure (Australia 2024-05-02, para. 5.46; Senior Lecturer 2024-06-29). According to Australia's DFAT report, "involuntary returnees who lack Sri Lankan legal documentation" face administrative challenges in obtaining documentation, which obstructs their "ability to access to social welfare programs and open bank accounts" (2024-05-02, para. 5.54).

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

References

Amnesty International. 2024-05-20. "Sri Lanka: Amnesty International's Secretary General Concludes Five-Day Visit." [Accessed 2024-06-26]

Amnesty International. 2022-02. "End the Use of and Repeal the Draconian PTA." [Accessed 2024-06-26]

Australia. 2024-05-02. Department of Foreign Affairs and Trade. "Sri Lanka." DFAT Country Information Report. [Accessed 2024-06-17]

Freedom House. 2024-02-29. "Sri Lanka." Freedom in the World 2024. [Accessed 2024-06-18]

Groundviews. 2022-11-23. Minoli De Soysa. "The Enduring Cost of a Long and Brutal War." [Accessed 2024-06-26]

Groundviews. 2008-04-10. "About." [Accessed 2024-06-26]

The Guardian. 2022-06-25. Devana Senanayake, Aliyar Mohammed Geeth, & Ben Doherty. "Exploited in a Crisis: Why Are Sri Lankans Getting on Boats Bound for Australia?" [Accessed 2024-06-21]

Human Rights Watch. (HRW) 2024-06-21. "Human Rights Watch Briefing Note on Human Rights in Sri Lanka." [Accessed 2024-06-26]

Human Rights Watch (HRW). 2023-09-18. "'If We Raise Our Voice They Arrest Us': Sri Lanka's Proposed Truth and Reconciliation Commission." [Accessed 2024-06-26]

Human Rights Watch (HRW). 2023-04-07. "Sri Lanka: Reject New Counterterrorism Bill. Proposed Law Breaks Government Pledge to End Abuse." [Accessed 2024-06-26]

Human Rights Watch (HRW). 2022-02-07. "'In a Legal Black Hole': Sri Lanka's Failure to Reform the Prevention of Terrorism Act." [Accessed 2024-08-12]

Lawyer. 2024-07-02. Interview with the Research Directorate.

Organisation suisse d'aide aux réfugiés (OSAR). N.d.a. "Organisation." [Accessed 2024-06-24]

Organisation suisse d'aide aux réfugiés (OSAR). N.d.b. "Sri Lanka." [Accessed 2024-06-24]

Senior Lecturer, University of Jaffna, Sri Lanka. 2024-06-29. Correspondence with the Research Directorate.

Sri Lanka. 1948 (amended 2021). Immigrants and Emigrants Act. Consolidation published by Blackhall Publishing. [Accessed 2024-06-04]

United Nations (UN). 2024-01-16. International Organization for Migration (IOM) "Adrift at Sea for 28 Days, Sri Lankan Migrants Struggle With Memories, Debts." By Anushma Shrestha. [Accessed 2024-06-20]

United Nations (UN). N.d. Office of the High Commissioner for Refugees (UNHCR). "Sri Lanka." [Accessed 2024-06-20]

United States (US). 2024-04-22. Department of State. "Sri Lanka." Country Reports on Human Rights Practices for 2023. [Accessed 2024-06-18]

Additional Sources Consulted

Oral sources: Adayaalam Centre for Policy Research; Centre for Policy Alternatives; Human Rights Commission of Sri Lanka; human rights lawyer and writer in Sri Lanka; International Crisis Group; Law and Society Trust; lawyer at a university in the UK who specializes in constitutional law and international human rights law; lawyer at a university in the UK who specializes in refugee law, sexual and gender-based violence, torture prevention, policing and international criminal law; National Peace Council of Sri Lanka; People for Equality and Relief in Lanka; professor at a university in Canada who specializes in human rights law, global governance, and international law; teaching professor who specializes in human rights, international environmental law and climate change.

Internet sites, including: Al Jazeera; Asylum Information Database; Asylum Research Centre; Australian Broadcasting Corporation; Austrian Red Cross – ecoi.net; CBC; The Conversation; Deutsche Welle; European Council on Refugees and Exiles; European Union Agency for Asylum; Factiva; Information Database; International Crisis Group; Le Monde; Minority Rights Group; The New Humanitarian; The New York Times; Radio-Canada; Refworld; Switzerland – State Secretariat for Migration; Tamil Guardian; UK – Home Office; Voice of America.