Impact case study database

Nadarajah’s work had wide and significant impact on, first, asylum protection in the UK for Tamils from Sri Lanka, by influencing directly a key change in UK asylum law and Home Office policy guidance in 2013–2014, which influenced the submission, assessment, and Tribunal determinations on claims by thousands of Tamil asylum seekers thereafter. Second, the protection extended by this change in asylum law and policy enabled the continued participation of Tamil asylum seekers and other non-resident Tamils in lawful political advocacy and democratic life in the UK. The change in UK law and Home Office policy, which remains in place in July 2020, has influenced Sri Lankan Tamils’ asylum claims in other countries, in particular Australia and France.

Nadarajah’s research, provided as expert evidence in a written report [3.2] and oral testimony to the UK’s immigration and asylum Upper Tribunal (UKUT), directly influenced its landmark determination in July 2013 on a designated Sri Lanka Country Guidance case [5.1]. To the co-lead advocate for the appellants at the hearing, it was ‘clear from a comparison of Dr Nadarajah’s evidence with the conclusions reached by the Upper Tribunal . . . that the Tribunal relied heavily on his evidence for many of the key features of its conclusions . . . All of these were key features of the guidance which the Tribunal gave [in its determination] and which continue to shape the way in which asylum claims by Sri Lankan Tamils are assessed’ [5.3 pp2–3].

By identifying and explaining important but hitherto unrecognized shifts in post-war Sri Lankan national security policy and practices, the analysis presented in Nadarajah’s expert evidence challenged key assumptions underpinning the UK’s asylum policy, and directly influenced the Tribunal’s hugely consequential finding that participation in lawful Tamil diaspora political activism in the UK could put individuals at risk of harm from the Sri Lankan authorities. The UKUT’s recognition of this distinct and novel ‘at risk’ category in its determination, which extensively cited Nadarajah’s expert report and oral testimony [3.1, paras 148–164 & Appendix K, paras 22–56], was described by legal experts as producing a ‘radical change’ in the UK Home Office’s and asylum Tribunals’ assessment of risk of return to Sri Lanka [5.6 p3].

This recognition was of very high significance because a Country Guidance (CG) determination by the UKUT becomes the authoritative finding on the ‘country guidance issues’ specified in the determination, unless superseded by a subsequent CG determination. A Tribunal determination that fails to follow the country guidance or to show why it does not apply to the case in question can be appealed on a point of law. The Home Office publishes the CG findings in policy guidance for its decision makers, who are expected to apply them when assessing asylum claims. [5.3].

The key, and novel, ‘country guidance issue’ identified in the 2013 CG determination was that “individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they are, or are perceived to have a significant role in relation to post-conflict Tamil separatism within the diaspora” were “at real risk of persecution or serious harm on return to Sri Lanka”, as “the [Sri Lanka] government’s present objective is to identify Tamil activists in the diaspora who are working for Tamil separatism and to destabilise the unitary Sri Lankan state” [5.1 p2, emphasis added]. The co-lead advocate for the appellants considered “Dr Nadarajah’s contribution to [this finding] as absolutely crucial in assisting the Tribunal to understand the attitudes of the Sri Lankan government, the dynamics of the Tamil diaspora, and the risks to those perceived as [Tamil] separatists in the event of a return to Sri Lanka” [5.3 p3].

After the 2013 CG determination was upheld by the Court of Appeal, in August 2014, the CG was published by the Home Office in new policy guidance for asylum decision-makers, titled ‘Sri Lanka: Tamil Separatism’ [5.2]. Nadarajah’s analysis of the country context in his 2013 expert evidence to the Upper Tribunal proved prescient, as in April 2014 the Sri Lankan authorities proscribed almost all the leading Tamil diaspora advocacy groups as terrorists, invoking UN anti-terrorism instruments. While these bans were summarily rejected by western states as lacking any evidentiary basis [3.1], the most direct protection for politically active non-resident Tamils in the UK is that provided by the 2013 ‘at risk’ category changes in asylum law and policy [5.7 p6].

In December 2020, the 2013 CG determination remained the authoritative legal guidance on Sri Lanka for asylum Tribunals, and current Home Office policy guidance, though revised, remained largely consistent with that issued in 2014 [5.5, 5.6]. In April 2020, Nadarajah was commissioned to provide extensive written and oral evidence to assist the UKUT to update its authoritative guidance on Sri Lanka. The determination of the new Country Guidance case, heard in September, is awaited. Whereas in 2013 a Tribunal-recognised ‘Interested Party’, Tamils Against Genocide (TAG) [5.4], instructed Nadarajah’s expert evidence, in 2020 he was jointly instructed by legal representatives of the main parties, the Home Office and the appellants [5.5 p3].

CG determinations directly shape subsequent assessments of asylum claims by the Home Office and the Tribunals. The senior asylum lawyer and barrister who was co-lead advocate for the appellants at the 2013 CG Sri Lanka hearing stated the determination was “of crucial significance in identifying the categories of Tamil applicants now adjudged entitled to be granted asylum in the UK” [5.3 p.2]. A senior lawyer specialising in Sri Lankan cases stated “in the past seven years thousands of Tamils who have sought asylum in the UK and Europe and in several common law jurisdictions … have had their claims assessed using [the 2013 CG] as the guidance case. Many are among those who have participated in Tamil diaspora political activities. Others have given evidence to international human rights groups and UN investigations,” [5.6 p3] (see below).

Given the standing asylum law and policy guidance, Home Office rejections, claimants’ appeals and tribunal decisions since 2013 often centre on whether the applicant meets the standard set (but not specified) by the 2013 CG determination of ‘a significant role’ in ‘Tamil separatism’ (as perceived by the Sri Lankan authorities) in relation to Tamil diaspora activism [5.5]. In this regard, Nadarajah was regularly commissioned by lawyers representing Tamil asylum seekers to provide the courts with expert reports explaining how risk to the individual in the country context at the time of the hearing related to that recognised in the 2013 CG determination. From 2014 to July 2020, he provided over 40 expert reports to asylum Tribunals based on his research. Many of his expert reports were relied on by the Tribunal for their decisions. A lawyer specialising in Sri Lankan cases stated “Dr Nadarajah’s reports have not only been central to positive determinations of asylum appeals, but also played a key role in stopping deportations, obtaining rights to appeal negative decisions through judicial review, and immigration bail.” [5.5 p2].

Nadarajah’s research also directly influenced the work of UK asylum law practitioners representing Tamil asylum seekers from Sri Lanka. One senior asylum lawyer described Nadarajah’s 2018 article [3.1] as “excellent”, explaining that “legal practitioners would definitely benefit from this being publicly available. We struggle to get legal aid granted for country expert reports at times and so this would be a great alternative for initial asylum applications relying on the political issues in Sri Lanka” [5.9]. Based on such feedback, the article was published open access with SOAS’s funding in August 2018 and has been downloaded over 3,000 times as of July 2020. The article, along with Nadarajah’s newly commissioned expert report was included in the evidence jointly submitted by the Home Office’s and appellant’s lawyers to the Upper Tribunal hearing of the 2020 Country Guidance (Sri Lanka) case.

Nadarajah’s research also influenced asylum lawyers’ case preparation and arguments made before Tribunals, both via expert reports he produced (including for the 2013 and 2020 CG cases, and dozens of individuals’ cases from 2015 to July 2020 **[5.4, 5.5, 5.6]**), and via training courses he conducted for 50 UK immigration lawyers specialising in Tamil cases. A public statement of appreciation by Duncan Lewis, a leading UK law firm, described Nadarajah’s training as ‘much needed and very welcome’ for their staff, and the research he presented as “of the utmost importance to any legal practitioner representing Sri Lankan asylum seekers” [5.8 p3].

Through his direct impact on UK asylum law and policy, Nadarajah’s work significantly influenced the ability of non-resident Tamils in the UK to participate in democratic life here. Recognition of Tamil diaspora political activists as an ‘at risk on return’ category from 2013 to July 2020, has encouraged individuals who previously may have been dissuaded by fear of reprisals from the Sri Lankan authorities after being deported to participate in a range of lawful political activities.

A senior editor with Tamil Guardian (the leading English-language Tamil diaspora news website), stated that within a year of the 2013 CG determination “the significant protections from harm by the Sri Lankan authorities provided in [it] had far reaching effects on Tamil diaspora political activity by encouraging several hundred Tamils awaiting decisions on their asylum claims to join major Tamil diaspora advocacy groups, and hundreds of others to participate in demonstrations and other public activities,” [5.7 p7]. This is despite such events routinely being videoed and photographed by Sri Lankan embassy officials, and in 2014 the Sri Lankan government banning these Tamil diaspora groups as terrorists. [5.7, 3.1].

Similarly, the Director of TAG (Together Against Genocide, a prominent Tamil human rights and transitional justice NGO) Janani Jananayagam stated “due to the increased sense of protection provided by [the 2013 CG determination]” Tamil asylum seekers who had witnessed war crimes by Sri Lankan security forces and “who previously had been reluctant, were persuaded to now come forward and give evidence” [5.4 p9]; Dozens of witnesses gave evidence to TAG and many more others to other international human rights groups and the landmark UN investigation (2014–2015) by the Office of the High Commissioner for Human Rights. [5.4, pp8-10].

The 2013 change in UK asylum law and policy guidance on Sri Lanka has influenced Tamils’ asylum claims in other countries. A senior UK lawyer stated “Dr Nadarajah’s research, which the UKUT relied on for its country guidance in the [2013 CG] determination, has also contributed to increasing international protection for politically active individuals in the Tamil diaspora in many countries including Australia, France, and Luxembourg.” [5.6 p4]. An analysis in 2016 of the influence of the UKUT’s CG determinations on Australia’s asylum courts showed that the 2013 determination on Sri Lanka had been “by far the most frequently-used country guidance decision in Australia . . . No other decision of the UKUT . . . has enjoyed similar currency” [5.10 p5, p8].