Amid conflicting court orders, former LTTE man faces threat of deportation, loss of refugee status

Bhaskaran Kumarasamy, a Sri Lankan Tamil refugee, currently housed in the Tiruchirappalli special camp, who fears he will be imminently deported. COURTESY Jaya Bathuri
20 August, 2021

“I am scared they can deport me any day now, and if I am sent to Sri Lanka, the only future, I have is death,” Bhaskaran Kumarasamy, a Sri Lankan Tamil refugee who had fled to India in 2004, told me on 16 August. While Kumarasamy has spent 17 years on Indian soil, a series of conflicting court orders and actions of the Q Branch of the Tamil Nadu Police’s Criminal Investigation Department—a police outfit created to investigate terrorism and organised violence—have put a question mark on his status as a refugee, with the threat of deportation looming large. Kumarasamy is a former member of the Liberation Tigers of Tamil Eelam, a separatist militant group fighting for an independent state for Tamils in Sri Lanka. Former LTTE members deported to Sri Lanka have previously disappeared. Human Rights Watch notes that thousands of Tamils are believed to have “disappeared” in Sri Lanka—the second highest enforced disappearances in the world.

Kumarasamy fled war-torn Sri Lanka in 2004 along with his wife, Sakuntala, and his two daughters, Sobana and Sobiha, then aged eight and six respectively. He had given up arms and left his home in Jaffna’s Nalloor area. The family had arrived in Rameshwaram, on the coast of Tamil Nadu, and were lodged in the Mandapam refugee camp. An Indian-government issued refugee identity card, a copy of which The Caravan has, shows that Kumarasamy and the three members of his family were recognised as refugees on 5 June 2004.

But on 23 June 2021, the Madras High Court ruled that Kumarasamy should cease to be recognised as a refugee. The court was hearing a plea he had submitted, requesting permission to visit the Swiss embassy in Delhi. Kumarasamy told me he was attempting to gain asylum in Switzerland because officials of the Q Branch had been threatening him with deportation for over two years—it had issued an official deportation order in November 2019. During the hearing, the high court accepted the Q Branch’s argument that Sri Lanka was safe for Tamil refugees, and opined that Indian refugees lose the limited protections they have if they ever leave the country. The 23 June judgement eased the process by which India can deport Kumarasamy to Sri Lanka.

The high court’s 23 June order came less than a year after the same court had ruled that Kumarasamy faced a credible threat to his life in Sri Lanka and should not be deported. The court’s judgement had come in response to another plea by Kumarasamy, to stay the 2019 deportation order. On 20 November that year, Kumarasamy had received an order signed by the Q Branch’s superintendent of police and also by the Sri Lankan deputy high commissioner in Chennai. The document, a copy of which The Caravan has, did not specify any reason for his deportation. Along with the deportation order, Kumarasamy was also given a paper passport—with a different passport number from the one he previously possessed—by the Sri Lankan High Commission in Chennai. It is unclear which government or agency took the initiative to deport Kumarasamy but the documents suggest that the Q Branch were working alongside the Sri Lankan government. 

Kumarasamy filed a plea against the deportation order on the same day, and the order was stayed on 26 August 2020. In the stay order, the Madras High Court took cognisance of the fact that returning to Sri Lanka poses a credible threat to Kumarasamy. “For the past 13 years, he is in India. Moreover … his family members viz., father, brother, brother’s wife and daughter were murdered by the Srilankan Army,” the judgement noted. “Taking into consideration the above fact, it may not be in the interest of detenu to deport him at this point of time. Interest of justice would be achieved by granting interim direction to keep the deportation order in abeyance until further orders.”

India has not signed the United Nations Convention Relating to the Status of Refugees, and thus the laws that apply to refugees in India are unclear. Till date, the Indian government decides on whether to treat a person or a group of persons as refugees based on the merits and circumstances of their appeals, on a case-to-case basis. There have been official policies followed for specific groups, such as Sri Lankan Tamils and Tibetans, and recently, the Citizenship Amendment Act of 2019. But even within these cases, there have been instances where those granted refugee status have been later prosecuted for illegal entry or overstay. India has no laws that stipulate the government’s obligations towards refugees.

Sri Lankan Tamil refugees have been entering India from the late 1980s following a series of anti-Tamil pogroms in Sri Lanka. Those refugees without passports and visas were put in one of the 132 Sri Lankan Tamil refugee camps, a majority of which are in Tamil Nadu. Most former militants were interned in the special camp in Tiruchirappalli. All camps are overseen by the Q Branch. After his arrival in India in 2004, over the next ten years, Kumarasamy and his family were interned in three refugee camps, in Mandapam, Samugarangapuram and Bagayam.

Despite the high court order of August 2020, which clearly stated that Kumarasamy should not be deported to Sri Lanka, officials of the Q Branch have continued to threaten him with deportation—The Caravan is in possession of audio recordings of conversations between him and Q Branch officials. The Q Branch has also tried to scuttle Kumarasamy’s attempts to gain asylum in Switzerland, and implicated him in a dubious criminal case.

On 27 June 2016, the Q Branch filed a case against Kumarasamy and 18 other Sri Lankan Tamils, and they were charged under several provisions of The Passport Act, 1967, The Foreigners Act, 1946, and sections 120 B, 370 and 420 of the Indian Penal Code—which pertain to criminal conspiracy, human trafficking and cheating. On 11 August that year, Kumarasamy was transferred from the Bagayam refugee camp, to the Tiruchirappalli special camp and after that to Puzhal Central Jail in Chennai. On 15 March 2019, Kumarasamy and the 18 others were acquitted of all charges but continued to be detained in the special camp. P Kannammal, the Q Branch’s superintendent of police, did not respond to questions about the case.

Q Branch officials have also prevented Kumarasamy from attempting to find asylum in countries that are safer for Tamil refugees. In October 2020, Kumarasamy had applied for asylum in Switzerland, which has a considerable population of Sri Lankan Tamil refugees. The Swiss embassy in Delhi had asked Kumarasamy to appear before them for an interview so that his asylum process could continue. However, Kumarasamy told me that Q Branch and Tamil Nadu government officials were preventing him from visiting the Swiss embassy. For special-camp residents to leave the camp, they need written permission from revenue officials such as the district collector and the local revenue inspector. Kumarasamy said that both officers had refused to grant him permission to go to Delhi despite him submitting copies of emails he had received from the Swiss embassy. Both the Swiss embassy in Delhi and S Sivarasu, Tiruchirappalli’s district collector, did not respond to questions emailed to them.

On 18 February 2021, Kumarasamy submitted a plea to the Madras High Court asking that he be allowed to visit the embassy. On 23 June 2021, the court issued its verdict which not only failed to order that Kumarasamy be allowed to visit the embassy but also argued that he did not have refugee status in India.

The court referred to Gurunathan and others vs. The Government of India and others, a case from 1994, that no Sri Lankan Tamil refugee can be forcefully sent back to Sri Lanka because the country poses a credible threat to their lives and freedoms. In court said that, “the aforesaid undertaking was given in 1994 when the Sri Lankan problem was at its peak and much water has flown under the bridge thereafter.” The court also accepted the Q Branch’s argument that Kumarasamy was not entitled to refugee status because he was a human smuggler, despite him being acquitted on all charges in the human-trafficking case the Q Branch had filed against him.

The court also accepted the Q Branch’s argument that Kumarasamy could not be given refugee status because in 2014 he had briefly gone to Sri Lanka and returned. In 2014, Kumarasamy had to undergo eye surgery, and felt he would not be able to take care of his children during that period. He decided to drop them off with his extended family who were still in Sri Lanka. “He had to go once because of a family emergency, but that doesn’t mean that Sri Lanka is safe for him,” Sankarasubbu, who was then Kumarasamy’s lawyer, told me. When he was in Sri Lanka, Kumarasamy also applied for and received a passport. He, however, had to return to India soon after because staying for long in Sri Lanka was not safe for a former militant.

“Those who go there will either be abducted in white vans, or will return to India because they are constantly harassed by the army and intelligence there,” Sankarasubbu told me. “We have seen so many refugees who went back to Sri Lanka but had to return to India because they faced daily threats there from the Sinhalese government.” Kumarasamy returned soon after he dropped off his daughters. The Q Branch claimed in their court filings that he returned by flight to Madurai on 16 December 2014 with a valid Sri Lankan passport, while Kumarasamy claimed he came back by boat.

There are no rules that mention that leaving Indian territory makes a person lose refugee status, but the high court accepted this argument. “People assume that just because the war is over it is safe for Tamils in Sri Lanka,” Kovai Ramakrishnan, a Periyarist activist from Coimbatore, told me. “That can’t be further from the truth. Yes, everybody who goes back doesn’t get killed immediately, but it’s only a matter of time for former militants, and many are harassed and threatened by their army so much they are forced to return. The Indian government has to be sensitive to this when they are inventing new rules for refugees in India.” 

One such case was that of Ramesh Kandasamy, another former-militant refugee who had been deported from India to Sri Lanka in late 2019. Sri Lankan police arrested Kandasamy in February 2020, in the city of Kilinochchi, in Sri Lanka’s northern province. “After he was arrested several people petitioned courts in Sri Lanka to find out where he was held, but they have gotten no replies,” Maria Johnson, his lawyer, told me. “It wasn’t an arrest at all, but a white van abduction, what happens to anyone who the Sri Lankan government opposes there.”

Kumarasamy told me, “Despite the order saying that I couldn’t be deported officials here in the camp continued to threaten me.” He added, “The Q Branch’s sub-inspector and constable here, Loganathan and Sivakumar, have continuously threatened to deport me to Sri Lanka despite the High Court stay.” Kumarasamy recorded some of these conversations. In one such recording, Loganathan can be heard saying, “I told you what I have an order to send you there [Sri Lanka]. I helped the government already book tickets to send you there.” Kumarasamy is heard replying, “I will not go there, I will be hanged and die here.” Loganathan denied threatening Kumarasamy even after I mentioned that we had an audio recording of the incident.

Kumarasamy told me that since the 23 June order, he feared being eminently deported. He said that his relatives in Sri Lanka had been visited by Sri Lankan intelligence officers who had asked about him. He also said that officials in his camp had again threatened to deport him. In August 2021, two government officials had visited him, Kumarasamy said, and asked him if he was receiving any money from abroad and if he was willing to return to Sri Lanka. “They kept asking about whether we are trying reform the LTTE even though I had left that organisation in 2004 itself,” he told me. “This is just an attempt by the Sri Lankan government to create fear about the LTTE so that they can prosecute former militants like me.”

Sri Lankan Tamil refugees hold up a sign demanding their release in a protest in the Tiruchirappalli special camp. Many fear they too will be deported to Sri Lanka where they face an uncertain future. Courtesy Jaya Bathuri

Following the 23 June ruling, the 78 Sri Lankan Tamil refugees in the Tiruchirappalli camp organised a relay protest demanding that they be released unless they have been convicted of a crime. Kumarasamy told me that others feared they too could face deportation under similar circumstances. “Many people here have the same story as me stuck in legal limbo,” he said. “We haven’t committed any crime and yet we can’t leave this country, we can’t work or travel, and we have to constantly live under the fear of being deported to a country that will kill us.”

The legal limbo that refugees are in is worsened by the fact that those in special camps are not allowed to meet their legal counsels. “The authorities allow only our wives and children to visit us,” Kumarasamy said. “No one, including lawyers, social activists and charities, is allowed to visit us, so there is no other way to express our grievances.” Johnson, a Madras High Court lawyer who currently represents Kumarasamy, told me that Q Branch officials had prevented him from meeting his client. Kannammal, the Q Branch’s SP, did not respond to questions about the treatment of refugees. This piece will be updated if and when she responds.

On the other hand, several government officials have visited the protesting refugees, including Jacintha Lazarus, the Tamil Nadu government’s director of rehabilitation and welfare of non-resident Tamils, and several members of the Tamil Nadu human-rights commission. Kumarasamy claimed that none of these officials spoke to protesting refugees about their demands. He said he had also written letters to Lazarus and MK Stalin, Tamil Nadu’s chief minister about his case, but received no replies. Both Lazarus and Stalin did not respond to questions emailed to them. S Baskaran, the chairperson of Tamil Nadu’s human-rights commission, did not reply to questions either.

Kumarasamy told me that after the visiting officials had left, the Q Branch filed fresh cases against several of the protesting refugees. “We were simply fighting for our rights in a peaceful way,” he said. “The police are intimidating us with the help of the law. Twenty-four refugees are currently being prosecuted for this struggle, which is a blatant violation of human rights.” He added that they had escalated the protest following the arrests. “Two Eelam Tamil refugees have been on hunger strike for the past ten days, and on 17 August night, 15 people here tried to commit suicide by taking lots of sleeping pills,” he told me. “Two others also tried to commit suicide that day, one by hanging himself from a tree and the other by cutting open his stomach. All 17 are now in hospital and the last two are in a critical condition.” The Caravan has access to video footage that confirms these attempted suicides. Pa Moorthy, Tiruchirappalli’s SP, did not respond to questions about the cases filed against the protesting refugees.

“Simply being in the special camp is akin to torture,” Thirumurugan Gandhi, the coordinator of the May 17 Movement, a Tamil Nadu-based organisation that advocates justice for victims of the genocide of Tamils by the Sri Lankan armed forces in 2009, told me. “Special camps are already deadly prisons, surrounded by electric fences, under 24-hour surveillance and guarded by more than 250 guards.” He added, “The government says these special camps were set up to reduce the LTTE’s presence but all they have done is remove the rights of refugees and kept them in a position where they can be constantly threatened with deportation which will surely lead to their death or disappearance.”

“Since India has not signed the UN convention on refugees, the Indian government represses refugees as it wishes,” Gandhi continued. “Not only is it impossible to legally ask for the rights of Eelam refugees, but the UN cannot interfere in the injustices being done to refugees in India. They live everyday not knowing if they will be handed to another government that is determined to annihilate them.”