THE CHAHAL FAMILY v. THE UNITED KINGDOM
Doc ref: 22414/93 • ECHR ID: 001-45742
Document date: June 27, 1995
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EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 22414/93
The Chahal Family
against
the United Kingdom
REPORT OF THE COMMISSION
(adopted on 27 June 1995)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-19). . . . . . . . . . . . . . . . . . . . . .1
A. The application
(paras. 2-4). . . . . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 5-14) . . . . . . . . . . . . . . . . . . .1
C. The present Report
(paras. 15-19). . . . . . . . . . . . . . . . . . .2
II. ESTABLISHMENT OF THE FACTS
(paras. 20-78) . . . . . . . . . . . . . . . . . . . . .4
A. The particular circumstances of the case
(paras. 20-47). . . . . . . . . . . . . . . . . . .4
B. The relevant domestic law
(paras. 48-61). . . . . . . . . . . . . . . . . . .9
C. The Indian background to the present case,
as described by the Government
(paras. 62-65). . . . . . . . . . . . . . . . . . 11
D. The effects of Sikh extremism outside India
and particularly in the United Kingdom,
as described by the Government
(paras. 66-69). . . . . . . . . . . . . . . . . . 12
E. The Government's case of the first applicant's
involvement in Sikh extremism and terrorism
(paras. 70-71). . . . . . . . . . . . . . . . . . 13
F. The first applicant's response to the
Government's allegations
(paras. 72-78). . . . . . . . . . . . . . . . . . 14
III. OPINION OF THE COMMISSION
(paras. 79-158). . . . . . . . . . . . . . . . . . . . 17
A. Complaints declared admissible
(paras. 79-80). . . . . . . . . . . . . . . . . . 17
B. Points at issue
(para. 81). . . . . . . . . . . . . . . . . . . . 17
TABLE OF CONTENTS
Page
C. As regards Article 3 of the Convention
(paras. 82-115) . . . . . . . . . . . . . . . . . 17
Conclusion
(para. 115) . . . . . . . . . . . . . . . . . . . 25
D. As regards Article 5 para. 1 of the Convention
(paras. 116-123). . . . . . . . . . . . . . . . . 25
Conclusion
(para. 123) . . . . . . . . . . . . . . . . . . . 27
E. As regards Article 5 para. 4 of the Convention
(paras. 124-129). . . . . . . . . . . . . . . . . 27
Conclusion
(para. 129) . . . . . . . . . . . . . . . . . . . 28
F. As regards Article 8 of the Convention
(paras. 130-140). . . . . . . . . . . . . . . . . 28
Conclusion
(para. 140) . . . . . . . . . . . . . . . . . . . 29
G. As regards Article 13 of the Convention
(paras. 141-153). . . . . . . . . . . . . . . . . 30
Conclusion
(para. 153) . . . . . . . . . . . . . . . . . . . 31
H. Recapitulation
(paras. 154-158). . . . . . . . . . . . . . . . . 31
PARTIALLY DISSENTING OPINION OF MR. TRECHSEL. . . . . . . . 33
APPENDIX I : HISTORY OF THE PROCEEDINGS . . . . . . . . . 34
APPENDIX II : DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION . . . . . . 35
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The first applicant, Karamjit Chahal, is an Indian citizen, born
in 1948, and presently detained for deportation purposes in H.M. Prison
Bedford. The second applicant, Darshan Kaur Chahal, his wife, is an
Indian citizen, who was born in 1956. She resides in Luton with the
two children of the family, a daughter called Kiranpreet Kaur Chahal,
the third applicant, born in 1977, and a son called Bikaramjit Singh
Chahal, the fourth applicant, born in 1978. By virtue of their birth
in the United Kingdom, the two children have British nationality. The
applicants were represented before the Commission by Mr. D. Burgess,
Solicitor, Messrs. Winstanley-Burgess, Solicitors, London.
3. The application is directed against the United Kingdom. The
respondent Government were represented by their Agent, Mr. I. Christie.
4. The case concerns the proposed deportation of the first
applicant, an Indian Sikh militant, from the United Kingdom on national
security grounds. He has been detained for nearly five years pending
the enforcement of the deportation order and the outcome of the
domestic and Strasbourg proceedings. The first applicant invokes
Article 3, Article 5 paras. 1 and 4, Article 8 and Article 13 of the
Convention. (A complaint he originally made under Article 6 para. 1
of the Convention concerning the fairness of certain remedies was
declared inadmissible by the Commission on 1 September 1994; see
Appendix II to this Report.) The other applicants invoke Articles 8 and
13 of the Convention.
B. The proceedings
5. The application was introduced on 27 July 1993 and registered on
4 August 1993.
6. On 30 July 1993 the Commission was requested to indicate a stay
of the first applicant's deportation under Rule 36 of the Commission's
Rules of Procedure. This request was notified to the Government of the
United Kingdom.
7. On 2 August 1993 the Government informed the Commission that the
Home Office had no immediate plans to deport the first applicant whilst
proceedings were still pending. They undertook to provide the
Commission with at least two weeks' notice of any intended deportation
of the applicant.
8. On 8 September 1993 the Commission decided, pursuant to Rule 48
para. 2 (b) of its Rules of Procedure, to communicate the application
to the respondent Government and to invite the parties to submit their
written observations on admissibility and merits.
9. The Government's observations were submitted, after an extension
of the time-limit set for this purpose, on 23 December 1993. The
applicants' observations were submitted, after two extensions of the
time-limit, on 7 April 1994.
10. On 16 May 1994 the Commission decided to invite the parties to
make oral submissions at a hearing, which was fixed for
1 September 1994. The President of the Commission granted the
applicants legal aid on 22 July 1994. Prior to the hearing the parties
submitted additional documents: the Government submitted various press
cuttings on 17 August 1994, and on 23 August 1994 the applicants
submitted a decision of an Immigration Appeal Tribunal.
11. At the hearing on 1 September 1994 the Government were
represented by Mr. I. Christie, Agent, Foreign and Commonwealth Office,
Mr. M. Beloff, QC, Counsel, Mr. R. Jay, Counsel, Miss T. Callman,
Counsel, and MM. D. Seymour, D. Cooke, and A. Cunningham, Advisers.
The applicants were represented by Mr. N. Blake, QC, Counsel,
Mr. D. Burgess, Solicitor, Messrs. Winstanley-Burgess. The second,
third and fourth applicants also attended the hearing.
12. On 1 September 1994 the Commission declared inadmissible the
first applicant's complaint under Article 6 of the Convention about the
fairness of remedies. It declared the remainder of the application
admissible.
13. The text of the Commission's decision on admissibility was sent
to the parties on 12 September 1994 and they were invited to submit
such further information or observations on the merits as they wished.
The applicants submitted further evidence and additional observations
on 28 October 1994. After two extensions of the time-limit, the
Government also submitted further evidence and additional observations
on 23 December 1994. In view of the new information contained in the
latter materials, the applicants submitted comments, after an extension
of the time-limit, on 31 March 1995.
14. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties' reaction, the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
15. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:
MM. C.A. NØRGAARD, President
C.L. ROZAKIS
E. BUSUTTIL
G. JÖRUNDSSON
S. TRECHSEL
A.S. GÖZÜBÜYÜK
H.G. SCHERMERS
MM. F. MARTINEZ
Mrs. J. LIDDY
MM. J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
D. SVÁBY
16. The text of this Report was adopted on 27 June 1995 by the
Commission and is now transmitted to the Committee of Ministers of the
Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
17. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
(i) to establish the facts, and
(ii) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.
18. A schedule setting out the history of the proceedings before the
Commission is attached hereto as Appendix I and the Commission's
decision on the admissibility of the application as Appendix II.
19. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
20. The first applicant entered the United Kingdom in 1971 without
seeking leave to do so from British immigration authorities. In 1974
he applied to the Home Office to regularise his stay and on 10 December
1974 was granted indefinite leave to remain under the terms of an
amnesty for illegal entrants who arrived before 1 January 1973.
21. The second applicant settled in the United Kingdom in 1975 and
the third and fourth applicants have been resident there since
their birth.
22. From 1 January to 27 May 1984 the first applicant was in India
and whilst there met prominent Sikh religious and political leaders.
Since 1984 the applicant has propagated a belief in a purer form of
Sikh religious practices and supported the movement for a Sikh
independent homeland (Khalistan). He has been a prominent religious
figure in the affairs of British Sikhs since 1984, a member of the
governing committees of a number of Sikh temples (gurdwaras) and has
toured the United Kingdom with other militants, baptising and
counselling Sikhs. He has supported the International Sikh Youth
Federation (ISYF), which in turn supports the All Indian Sikh Student
Federation.
23. The first applicant has been arrested by the British police in
connection with his activities and associates in the United Kingdom.
He has twice been charged with criminal offences of a violent order
relating to disputes in the affairs of two gurdwaras. He has been
acquitted by a jury in one case. The other case resulted in his
conviction in May 1987, but it was quashed by the Court of Appeal on
27 July 1992 after the applicant had served the nine month prison
sentence which had been imposed at first instance. He has never been
charged with offences relating to conspiracy to injure or kill, or with
similar offences, whether in the United Kingdom or India, despite the
provisions of British criminal law that enable agreements to commit
violence in India to be prosecuted in the United Kingdom if the
agreement is intended in part to be executed in the United Kingdom.
24. A request by the first applicant for British nationality was
refused on 4 April 1989.
25. On 14 August 1990 the Home Secretary decided that the first
applicant should be deported from the United Kingdom because his
continued presence there was deemed unconducive to the public good for
reasons of national security and other reasons of a political nature,
namely the international fight against terrorism. A notice was issued
to this effect. On 16 August 1990 the first applicant was detained for
deportation purposes and has remained in custody since, pursuant to
para. 2 (2) of Schedule III of the Immigration Act 1971.
26. The first applicant applied for political asylum, claiming to be
a victim of threatened torture and persecution in India on the
following basis:
a) his personal experiences in India between January and
May 1984, during which time it is accepted that he was detained
for over three weeks and tortured by a number of Indian police
officers in two different police stations;
b) the consistent evidence of a real risk of torture, murder,
and detention at the hands of the Indian authorities,
particularly the police, faced by those who either are, or are
perceived to be, Sikh militants and adherents to the cause of a
Sikh state in India. The evidence extends throughout the period
1984 to 1992 and is continuing. It is most comprehensively
expressed in the reports of Amnesty International, their letters
to the Secretary of State in the present case, the evidence of
other experts, and the evidence relied on by the Home Office,
namely a report prepared by the British Foreign Office;
c) the evidence of a certain Kharnail Singh Khaira, who
visited India in 1989, was detained and tortured there after
visiting the first applicant's relatives, and was questioned
about the applicant by his torturers;
d) evidence relating to the fate of other relatives or
acquaintances of the first applicant, eg. the deaths at the hands
of the police of his cousin's son-in-law (1983), his cousin's son
(October 1989), a relative by marriage (February 1990), and his
second cousin (March 1990), and the arrest and torture of his
sister, brother-in-law and two nephews (October 1989), by the
police;
e) the arrest and detention, with or without charge, of the
family and acquaintances of the first applicant on suspicion of
supporting Sikh separatist militants, many of whom, including his
parents, having been tortured and questioned about the first
applicant;
f) the accounts given by the first applicant's village headman
and family in India as to the interest in the applicant shown by
the security forces;
g) the interest in the first applicant's proposed expulsion
from the United Kingdom on national security grounds and his Sikh
militancy expressed by the national press in India, including
misrepresentations as to the extent of and reasons for the police
interest in the applicant in India;
h) the circulation by the Indian national press and some pro-
government agency in the United Kingdom (which the applicants
believe to be the Indian High Commission) of inaccurate
speculation purporting to come from an identified British senior
police officer that the first applicant had been found in
possession of explosives and had targeted prominent Sikhs in the
United Kingdom;
i) a warning on behalf of the Canadian police, given to the
first applicant before the deportation proceedings began, that
he was in danger in India;
j) the fact that the first applicant's former associate,
Jasbir Singh Rode, was detained without trial or charge for four
years upon his expulsion to India;
k) evidence relating to the general events in the Punjab, the
scale of the problems, the inadequacy of the response of the
authorities or their inability to respond;
l) the decisions of judicial authorities in the United Kingdom
and elsewhere considering the application of the relevant legal
criteria of risk of persecution to credible accounts of fears of
persecution given by Sikh militants with respect to their
treatment in India.
27. On 27 March 1991 the Home Secretary refused the first applicant's
request for asylum. Given the national security elements in the case,
the first applicant had no right of appeal to an independent tribunal
against the Home Secretary's notice of intention to deport him.
However, the matter was considered by an advisory panel on
10 July 1991.
28. The Home Secretary expressed the following views about the first
applicant throughout the domestic proceedings:
a) the first applicant has a public history of violent
involvement in Sikh terrorism, including involvement in the
financing of terrorism in India by the supply of money and
equipment to terrorists in the Punjab since 1985, which
equipment has been used for actual terrorist operations;
b) he has been involved in the planning and directing of
terrorist attacks in India, the United Kingdom and
elsewhere; and
c) in his leading role in a faction of the ISYF, he was
involved in that faction's programme of intimidation
directed against members of other groups within the United
Kingdom Sikh community.
29. The applicant was not informed of the basis for these views which
were put to the advisory panel. He was not allowed to be represented
by a lawyer and he was not informed of the advice which the panel gave
to the Home Secretary. The latter subsequently signed a deportation
order against the first applicant on 25 July 1991.
30. The applicant sought judicial review of the Home Secretary's
decision. Leave was granted by the High Court on 2 September 1991 and
the asylum refusal quashed on 2 December 1991 because the reasoning
behind it was considered inadequate. Mr. Justice Popplewell expressed
"enormous anxiety" about the case.
31. After further consideration of the first applicant's situation,
the Home Secretary adhered to his previous decision (renewed decision
1 June 1992).
32. Part of the first applicant's case was based on reports by
Amnesty International and other material showing that a great number
of Sikhs have been persecuted in India. Amnesty International,
convinced that the first applicant, if sent to India against his will,
would be at risk of torture, "disappearance" or extrajudicial
execution, made representations about the present case to the Home
Secretary. The latter examined Amnesty's documentation, but stated,
"... that the emergency powers in force in the Punjab, including
the Terrorist and Disruptive Activities Act 1985 (TADA), are
lawful powers, properly enacted by the Indian Parliament, which
have been instituted in response to the very serious threat to
the life and safety of the community posed by the activities of
Sikh terrorists in the Punjab. He (noted) that the judiciary in
India is independent of the Government and that there is an
effective system of appeals in criminal matters ranging from
District Courts to the Supreme Court."
33. Concerning human rights violations by the Indian security forces
in the Punjab, the Home Secretary commented as follows:
"... he considers that these actions arise from failures of
discipline and supervision and not from any concerted policy on
the part of the Indian authorities. Moreover, he considers that
the breakdown of law and order of which these violations are a
part results directly from the activities of Sikh terrorists and
in particular their strategy of intimidation and provocation of
members of the security forces. He does not accept that they are
evidence of persecution within the terms of the UN Refugee
Convention against Sikhs generally in the Punjab, nor against
supporters of an independent Sikh homeland, nor against alleged
Sikh terrorists ... [he] notes that these violations have not
been condoned by the Indian or state Governments ...".
34. The Home Secretary also examined what might happen to the first
applicant on his return to India. He accepted that the first applicant
might be arrested and charged with terrorist offences in India, under
the TADA or other provisions of Indian criminal law. However, were he
to be charged, the Secretary of State believed that he would be subject
to prosecution for alleged criminal activities, not for his political
beliefs or expressions, and that he would receive full protection by
the Indian Government from mistreatment while held in custody.
35. If the first applicant were not arrested by the Indian
authorities, the Home Secretary accepted that he or indeed any other
person visiting or living in the Punjab at that time faced some risk
of violence, both from being caught up in a terrorist outrage or from
the activities of members of the security forces acting outside the
law. However, the Home Secretary did not regard this as persecution
within the meaning of the 1951 United Nations Convention on the Status
of Refugees. He noted that Sikhs live safely in most parts of India
outside the Punjab and that the first applicant was not obliged to
return to the Punjab itself. He would be returned to any international
airport of his choice within India.
36. In a letter of 18 June 1992, the applicants' solicitors stated
that the first applicant did not regard a location in India outside the
Punjab as an area in which he would not face a real risk of persecution
for a Refugee Convention reason. Furthermore he did not regard any
point of re-entry to India as safe for him.
37. In his reply by letter of 2 July 1992, the Home Secretary
reiterated that the first applicant would be deported to any
international airport of his choice within India and informed the
solicitors that he had
"... sought and received assurances from the Indian Government
a copy of which is attached and which further satisfy him as to
this matter. The Secretary of State therefore remains of the
view that Mr. Chahal would be safe from ill-treatment if taken
into custody by the Indian authorities wherever he might be held
in custody."
38. The assurances mentioned are contained in a letter dated
29 June 1992 from the Indian High Commission to the Under-Secretary of
State at the Foreign Office:
"... if Mr. Chahal were to be deported to India, he would enjoy
the same legal protection as any other Indian citizen, and ...
he would have no reason to expect to suffer ill-treatment of any
kind at the hands of the Indian authorities."
39. Subsequent to this correspondence, further material (in
particular from Amnesty International) was made available to the Home
Secretary. In response he stated that he did not substantially dispute
Amnesty's reports insofar as they related in a limited way to the
general situation in the Punjab, but he commented that he did not
accept that the material used in the compilation of these reports was
necessarily independent or objective. Nor did he draw the same
inferences as the applicants' solicitors from those reports.
40. The quashing of the first applicant's conviction by the Court of
Appeal on 27 July 1992 did not significantly change the Home
Secretary's evaluation of the substantial security risk posed by the
first applicant. Because of this assessment, he also considered that
the first applicant could not benefit from the protection of
Articles 32(1) and 33 of the United Nations Refugee Convention even if
he had had a satisfactory claim to refugee status.
41. The first applicant applied for judicial review to challenge the
Home Secretary's second refusal of asylum and the maintenance of the
deportation decision. He also applied for bail, which was refused on
23 July 1992.
42. On 12 February 1993 the judicial review application and a renewed
bail request were refused, the High Court holding that the Home
Secretary's decisions had not been irrational. A renewed application
for judicial review to the Court of Appeal was heard on 28 July 1993
and dismissed on 22 October 1993.
43. The Court of Appeal noted that, whilst it had before it massive
evidence as to whether the life or freedom of the first applicant would
be threatened if he were returned to India, it did not have the
evidence on which the Home Secretary considered the applicant to be a
risk to national security. So the Court could not balance the threat
on the one hand against the risk on the other. Its function was to
consider the first applicant's evidence regarding the threat to his
life and to examine whether the Home Secretary's decision on grounds
of national security was irrational, perverse or based on a
misdirection. It was also required to examine whether there was
sufficient evidence that the Home Secretary balanced the gravity of the
national security risk against all other circumstances, including the
likely risk of persecution if the person were deported. The Court
pointed out that the scrutiny of the claim that a person should be
deported in the interests of national security may in practice be
defective or incomplete if all the relevant facts are not before the
it. Furthermore, even when the relevant facts are before the Court, it
is not empowered to carry out its own assessment of the respective
risks.
44. As to the particular facts of the case, one member of the Court
of Appeal considered that much of the evidence about the
first applicant's past was second-hand, or even more remote, and could
in part be said to be evidence of impression rather than fact. Another
judge considered that there was a clear case to consider that the first
applicant had a well-founded fear of being persecuted, within the
meaning of Article 1 of the 1951 Convention on the Status of Refugees,
if returned to India. It was deemed irrelevant that some of the victims
of police violence in India were guilty of terrorist acts. The
possibility that the first applicant would suffer unauthorised ill-
treatment in the hands of Indian security forces was left open.
45. Nevertheless, the Court of Appeal was impressed by the assurance
given by the Indian Government that the first applicant's rights would
be protected on return to India. The Court was informed that such
assurances are seldom sought or given.
46. The Court thus held that it had power to examine the grounds on
which a deportation order was made, even where the interests of
national security are relied upon, although in practice its scrutiny
is limited. As regards the facts of the present case, the Court
concluded that the grounds of national security could not be challenged
and there was sufficient evidence that the Home Secretary had carried
out the necessary balancing exercise.
47. The first applicant's petition to the House of Lords for leave
to appeal was rejected on 2 March 1994.
B. The relevant domestic law
48. By section 3(5)(b) of the Immigration Act 1973 ("the Act"), the
Home Secretary has the power to deport persons who are not British
citizens, including those such as the first applicant who have
indefinite leave to remain in the United Kingdom, on the ground that
their deportation is conducive to the public good. The first applicant
was granted indefinite leave to remain in the United Kingdom on
10 November 1974, but he had arrived there clandestinely in 1971 and
is not able to benefit from the immunity accorded to Commonwealth
citizens ordinarily resident in the United Kingdom on 1 January 1973
as bestowed by section 7 of the Act.
49. By section 15(1) of the Act, there is a right of appeal to an
independent tribunal against a decision to deport, but by
section 15(3):
"A person shall not be entitled to appeal against a decision to
make a Deportation Order against him if the ground of the
decision was that his deportation is conducive to the public good
as being in the interests of national security or of the
relations between the United Kingdom and any other country or for
other reasons of a political nature."
50. This exception was maintained in the Asylum and Immigration
Appeals Act 1993, which came into force in July 1993. It provides a
right of appeal to an independent adjudicator in all but national
security cases where expulsion would be contrary to the United
Kingdom's obligations under the 1951 Convention on the Status of
Refugees.
51. The first applicant's case was considered by a non-statutory
advisory panel (presided over by a Lord Justice of Appeal, now a Law
Lord) instituted in 1971 for national security cases of this type. The
existence of this procedure is vouchsafed by paragraph 157 of the
Statement of Changes in Immigration Rules (House of Commons Paper 251).
52. By paragraphs 161 and 173 of the Home Secretary's current Rules
governing immigration control and practice in the United Kingdom (HC
251), deportation orders may not be made in breach of the United
Kingdom's obligations under the 1951 Convention and Protocol Relating
to the Status of Refugees.
53. The relevant Articles of the Refugee Convention are Articles 32
and 33. Article 33 provides:
"1. No contracting state shall expel or return a refugee in any
manner whatsoever to the frontiers of territories where his life
or freedom would be threatened on account of his race, religion,
nationality, membership of a particular social group or political
opinion.
2. The benefit of the present provision may not, however, be
claimed by a refugee whom there are reasonable grounds for
regarding as a danger to the security of the country in which he
is, or who, having been convicted by a final judgment of a
particularly serious crime, constitutes a danger to the community
of that country."
54. The first applicant was detained following the service on him of
the Home Secretary's notice of intention to deport. The power to
detain, pending the making of an order, derives from paragraph 2(2) of
Schedule III to the Act, which reads as follows:
"Where notice has been given to a person in accordance with
Regulations under Section 18 of this Act of a decision to make
a Deportation Order against him, and he is neither detained in
pursuance of the sentence or order of a Court nor for the time
being released on bail by a Court having power so to release him,
he may be detained under the authority of the Secretary of State
pending the making of the Deportation Order."
55. The power to detain after the making of an order derives from
paragraph 2(3), which provides:
"Where a Deportation Order is in force against any person, he may
be detained under the authority of the Secretary of State pending
his removal or departure from the United Kingdom (and if already
detained by virtue of sub-paragraph (1) or (2) above when the
order is made, shall continue to be detained unless the Secretary
of State directs otherwise)."
56. The Home Secretary has a practice of not removing asylum seekers
from the United Kingdom pending the resolution of any judicial review
proceedings they might bring (Muboyayi case [1992] IQB 244 at 259C).
57. The High Court has power to review the Home Secretary's decision
to maintain an asylum seeker in detention (R v. Governor of Durham
Prison, Ex-Parte Hardial Singh [1984] IWLR 704), but it is incumbent
on an applicant to demonstrate that the Home Secretary was acting for
a collateral purpose or irrationally.
58. The decisions of the Home Secretary are liable to challenge by
way of judicial review and may be quashed by reference to the ordinary
principles of English public law. This remedy was explained before the
European Court of Human Rights in the case of Vilvarajah and Others
(Eur. Court H.R., Vilvarajah and Others judgment of 30 October 1991,
Series A no. 215, pp. 29-31, paras. 89-93, and pp. 38-40, paras. 117-
127).
59. The High Court's supervisory function in relation to the
lawfulness of an asylum decision is not displaced merely because
national security issues are also engaged. However, judicial review in
this field is limited because "the decision on whether the requirements
of national security outweigh the duty of fairness in a particular case
is a matter for the Government to decide, not for the courts; the
Government alone has access to the necessary information and in any
event the judicial process is unsuitable for reaching decisions on
national security" (Council of Civil Service Unions v. Minister for the
Civil Service [1985] AC. 374, Lord Fraser at 402). Nevertheless, the
fairness of the procedure by which the Government have reached their
decision is justiciable and it is for the courts to determine whether
the Government have in fact balanced any conflicting interests between
national security and the individual.
60. Any person in detention is entitled to seek bail or challenge the
lawfulness of his detention by way of a writ of habeas corpus.
61. Reciprocal extradition arrangements between India and the United
Kingdom are possible under the Extradition Act 1989, India being a
Commonwealth country. Previous restrictions preventing the return of
political offenders were modified by an extradition treaty concluded
with India in 1993, and in which were integrated certain notions
contained in the Suppression of Terrorism Act 1978. The treaty thus
allows extradition for certain serious offences hitherto deemed to have
a political character, provided that the extradition request discloses
no ulterior elements of a racial, religious, national or political
nature. The matters with which the first applicant is reproached, such
as conspiracy to supply funds, would not fall within any of the
offences defined in the 1978 Act.
C. The Indian background to the present case, as described by the
Government
62. In their observations of 23 December 1994, the Government portray
the following background to the present case. Since the partition of
India in 1947, many Sikhs have been engaged in a political campaign for
an independent homeland (Khalistan), based on the Indian province of
Punjab. In the late 1970s an increasingly violent group emerged under
the leadership of Sant Jarnail Singh Bhindranwale, which was prepared
to challenge both the central Indian authorities and moderate Sikhs.
Following the killing in 1983 of a senior police officer in the Golden
Temple in Amritsar, which Bhindranwale and his followers were using as
a base, the situation in the Punjab deteriorated rapidly. On 6 June
1984, the Indian army stormed the Golden Temple ("Operation Blue
Star"). A thousand Sikhs were killed, including Bhindranwale. This
operation caused domestic and international outrage. Four months later,
the Indian Prime Minister, Indira Gandhi, was assassinated in revenge
by two Sikh members of her bodyguard. The Hindu backlash after her
murder resulted in anti-Sikh riots in Delhi in which over 2000 Sikhs
were killed.
63. Since 1984, the terrorist campaign for an independent Khalistan
has claimed over 20,000 lives. Sikh unrest in India peaked in 1992,
when apparently around 4000 lives were lost in terrorist related
incidents mainly in the Punjab. Since then it has considerably
declined; in 1994, only 51 such deaths had been reported by autumn of
that year. There are signs that normal life is being restored, with the
reassertion of the electoral and judicial processes, after years of
acquiescence in the face of police intimidation and militant activity.
64. Standards still need to be improved, and there is national and
local commitment to that. For example, the Chief Minister of the Punjab
has agreed to give favourable consideration to setting up a state human
rights commission. Whilst abuse of detainees (irrespective of religion
or political opinion) by law enforcement authorities has been a
widespread problem throughout India, the Indian Government's attitude
has now changed, with international criticism of its human rights
record being taken seriously. A National Human Rights Commission has
been established to monitor developments. It visited the Punjab in 1994
and reported that terrorism had been contained and that normal life was
being resumed, thus paving the way to normalising the role and function
of the police and re-establishing District Magistrate authority over
them, hitherto lacking.
65. The Terrorist and Disruptive Activities (Prevention) Act (TADA),
first introduced in 1985 to deal with the exceptional situation in the
Punjab (but enforced throughout the country), has not helped to
strengthen the accountability of the security agencies. However, the
Central Government are showing some signs of recognising the need to
prevent abuses of the TADA, and its operation is now under high level
Government review.
D. The effects of Sikh extremism outside India and particularly in
the United Kingdom, as described by the Government
66. According to the information of the respondent Government as of
23 December 1994, the few remaining extremist Sikh leaders have taken
refuge in a neighbouring country from where they direct operations in
India. Although most Sikh terrorist attacks have taken place in India,
there have been attacks elsewhere in Canada, Rumania and
the United Kingdom.
67. In the 1980s Sikh terrorist groups organised themselves into so-
called Panthic Committees, amongst which there was considerable
rivalry. This rivalry spilled over into the United Kingdom.
68. In August 1984 Jasvir Singh Rode, the nephew and spiritual
successor of Bhindranwale who had been killed during "Operation Blue
Star", arrived in the United Kingdom to establish branches of the
International Sikh Youth Federation (ISYF) which would support the
terrorist organisations operating in the Punjab. During his visits to
gurdwaras throughout the United Kingdom, Rode made speeches urging
Sikhs to return to the Punjab to fight the Indian army. At the Luton
gurdwara he stated that he would be keeping £1000 of donations to buy
firearms for use in the Punjab. He was expelled in December 1984
because of such public advocacy. Meanwhile Harpal Sing Ghuman,
described by the Government as the leader of the military element of
Sikh extremism, had also arrived in the United Kingdom, whilst keeping
a lower profile.
69. The Government state that in 1988 the ISYF in the United Kingdom
began to split into two distinct factions, reflecting the formation of
the Panthic Committees in the Punjab. The southern branch sought to
take over the organisation and to redirect misappropriated funds to
another Panthic Committee. Having failed to bring about a change of
leadership by constitutional means, violence and litigation ensued,
involving in particular the Havelock Road Gurdwara in Southall, London,
and plots were formulated to assassinate leading characters in the
conflict which, according to the Government, included the applicant.
The conflict ended with an injunction banning certain southern ISYF
people from the Havelock Road Gurdwara. The injunction was enforced by
the London Metropolitan Police.
E. The Government's case of the first applicant's involvement in
Sikh extremism and terrorism
70. In their observations of 23 December 1994, the Government, in
addition to what was publicly relied on in the domestic proceedings
(para. 28 above) make, inter alia, the following allegations:
a) When the first applicant was in the Punjab in January 1984,
he had regular contacts with the militant, Bhindranwale, at
the Golden Temple.
b) The leader of the military element of Sikh extremism,
Ghuman, stayed at the applicant's home in 1984 when they
toured the United Kingdom together in the wake of Rode,
recruiting ISYF activists.
c) As a result of these associations, the first applicant
emerged as the dominant figure in the United Kingdom ISYF
and had considerable contacts with the Sikh terrorist
leadership in India and Pakistan.
d) He was detained under the Prevention of Terrorism
(Temporary Provisions) Act 1984 (the PTA) in October 1985
on suspicion of involvement in a conspiracy to assassinate
Rajiv Gandhi during an official visit to the United
Kingdom, but he was released for lack of evidence.
e) The first applicant was believed to be involved in an ISYF
conspiracy to murder moderate Sikhs in the United Kingdom
in 1985/1986. He was arrested under the PTA and later
released without charge.
f) In April 1986 he threatened to use his ceremonial sword
against a police officer if he were visited at home.
g) Reliance is again placed on the first applicant's
conviction in May 1987, albeit subsequently quashed on
appeal, concerning disturbances at the Belvedere Gurdwara
in Kent.
h) In 1988 the first applicant was deemed to be the de facto
leader of a hard line of southern ISYF members who
supported the Second Panthic Committee. He played a
significant leading role in organising the intimidation of
rival groups by the use of force.
i) In July 1990 close associates of the first applicant were
arrested, charged and convicted of conspiracy to cause
explosions in the United Kingdom. He attended one of the
accused's remand hearing and other close associates of his
(also called Chahal) stood surety for that person.
j) The second applicant has participated in the intimidation
of her husband's opponents and their families, including an
attempted assault on someone with a ceremonial sword.
k) In 1992 threats were made against the families of British
officials in India in connection with the first applicant's
deportation proceedings.
l) The first applicant has misappropriated and controlled
gurdwara funds using threats of violence.
m) Under the first applicant's leadership, the southern
faction of the ISYF was a secure and effective group. Since
his detention, this faction has virtually ceased to exist
and moderate control of the Havelock Road Gurdwara has been
restored. The loss of influence and control over funds has
led to a loss of standing within the Second Panthic
Committee. Sikh violence has also diminished in the United
Kingdom.
71. The Government emphasise that this does not represent the full
national security case against the first applicant. The full case
cannot be disclosed because intelligence sources require protection.
None of these sources came from the Indian Government. For the same
reason, it has not proved possible to prosecute the first applicant
further in the United Kingdom.
F. The first applicant's response to the Government's allegations
72. The first applicant categorically denies all the Government's
allegations and insinuations of guilt by association. He submits, inter
alia, the following:
a) The first applicant only once met Bhindranwale personally
during his stay in the Punjab in 1984, and he was then
accompanied by his family.
b) Ghuman is not a leader of the military element of Sikh
extremism, but an intellectual deemed friendly to the
Indian Government.
c) Rode did not say that he would keep donations for terrorist
purposes. Money was collected to help the widows and
orphans of the Golden Temple massacre.
d) The first applicant toured the United Kingdom with Rode,
and later Ghuman, teaching on spiritual matters.
e) There are no terrorist implications behind the first
applicant's contacts with Bhindranwale, Ghuman and Rode. He
has had no contact with Sikh extremists. The Government
have been misled.
f) There has never been an inner core of ISYF activists and
the first applicant has not been a dominant figure in that
organisation, although he has been a leading spiritual
member of the Sikh community.
g) The Government's understanding of Sikh events in the United
Kingdom is incorrect. The split in the ISYF came after Rode
abandoned his support for an independent Khalistan.
h) The ISYF has been recognised by the Government as an
important and constructive organisation for the United
Kingdom Sikh community.
i) The southern faction of the ISYF was not the originator of
the disturbances at the Havelock Road Gurdwara. The ISYF
did not seek funds from gurdwaras. There has been neither
fund raising for arms or equipment, nor misappropriation of
funds. Such matters could easily have been the subject of
criminal investigation and prosecution, if need be. An
examination of the Havelock Road Gurdwara's finances
reveals that its funds were largely committed to
maintenance costs.
j) Whilst it is true that the first applicant has occasionally
been arrested and detained, as part of the police focus on
migrant communities, he has been found innocent every time.
The quashing of his conviction by the Court of Appeal in
July 1992 was not a mere procedural matter, but a
condemnation of the kind of prejudice upon which the
Government's present allegations are based.
k) He denies involvement in any conspiracy to assassinate
Rajiv Gandhi or any moderate Sikhs in the United Kingdom.
l) Neither he nor his wife have used, or threatened to use, a
ceremonial sword against anyone. Neither of them have
intimidated members of the Sikh community or their
families. There has been no police questioning of the
applicants concerning such allegations.
m) The first applicant had no association, other than minor
social contact, with the people who were convicted of
conspiracy to cause explosions or those who helped them
obtain bail. The fact that the latter were called Chahal
merely reflects the commonplace nature of the name.
n) The first applicant refutes the "Godfather" image
propounded by the Government and denies any intimidation of
British families in India on his behalf.
73. The applicants reject the Government's description of the
background events in India and their effects elsewhere (paras. 62-69
above) as being simplistic and laden with value judgments in using such
terms as "terrorist", "Sikh extremists", "hard line", "Sikh moderates"
and "terrorist related incidents". It should not be forgotten that many
of the reported deaths were perpetrated by the police, and included
people killed in false encounters staged by the security forces. A
major component of the violence in India may thus be attributed to
State terrorism.
74. Reliance for this claim is placed, inter alia, on the report of
the National Human Rights Commission concerning its Punjab visit in
1994, in which it recorded complaints against the police of arbitrary
arrests, disappearances, custodial deaths and fake encounters resulting
in killings. The view was also expressed that District Magistrates were
not at present in a position to inquire into complaints of human rights
violations by the police and that there was still a prevailing feeling
of the police being above the law and answerable to none. The report
further recorded that detention under the Terrorist and Disruptive
Activities (Prevention) Act 1985 was severely criticised by the public,
allegations of arbitrariness being made.
75. The applicants consider that the United Kingdom Government do not
understand Sikh politics in either the United Kingdom or India. They
do not seem to be aware of the divisive personal splits within the
United Kingdom Sikh community and the opportunity thereby created to
convey false information from apparently independent individuals who
may support or be supported by the Indian Government. Furthermore, the
struggle within local United Kingdom gurdwaras is not a terrorist based
conflict, but the normal fight for power and influence to be found in
any political group. It is certainly not a struggle concerning the
release of funds for terrorist purposes.
76. The applicants contend that the sub-text of the Government's
submissions is that the first applicant's return to the Punjab is
desirable as a warning to others, however flawed the evidence. It is
therefore suggested that the reasons for the drop in Sikh militancy
could be the changing situation in the Punjab, now that one side has
been crushed, and fear for the consequences of speaking out in the
United Kingdom in view of what has happened to the first applicant.
This effect would have been achieved with a threat to deport any other
Sikh and is not unique to the first applicant.
77. The applicants submit that the Government have been wrongly
influenced by defamatory newspaper articles and statements from
critics in the Sikh community, with the result that they have
unacceptably and pejoratively labelled the first applicant as a
terrorist. As the Government have not disclosed their sources of
information, it is difficult to modify this erroneous picture of him,
which in any event does not raise a national security issue. The
applicants warn against the tendency to assume that what is secret is
true.
78. With this undisclosed background to the case, the applicants can
only speculate on what may have influenced the Government's decision.
They point to the huge investments made, and aid given by, the United
Kingdom to India, and the intense international competition for India's
capital projects. India is the only State outside the European Union
and the United States of America to benefit from special anti-terrorist
measures in extradition arrangements. The applicants suggest that the
Government's view may be blinkered by this special relationship with
India.
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
79. The Commission has declared admissible the first applicant's
complaints that his deportation to India would expose him to a real
risk of torture or inhuman or degrading treatment, that his detention
pending deportation has been too long, that the judicial control
thereof has been ineffective and slow, and that he has no effective
domestic remedy for his Convention claims because of the national
security elements in his case.
80. The Commission has also declared admissible the complaint of all
the applicants that the deportation of the first applicant would breach
their right to respect for family life, for which Convention claim they
have no effective domestic remedy.
B. Points at issue
81. The points at issue in the present case are as follows:
- whether there would be a violation of Article 3 (Art. 3) of the
Convention in the first applicant's case if he were to be
deported to India;
- whether there has been a violation of Article 5 para. 1 (Art. 5-
1) of the Convention in the first applicant's case as regards the
lawfulness and length of his detention;
- whether there has been a violation of Article 5 para. 4 (Art. 5-
4) of the Convention in the first applicant's case, both as
regards the nature of the judicial controls in his case and their
speed;
- whether there would be a violation of Article 8 (Art. 8) of the
Convention for all the applicants if the first applicant were to
be deported to India; and, finally,
- whether there has been a violation of Article 13 (Art. 13) of the
Convention.
C. As regards Article 3 (Art. 3) of the Convention
82. Article 3 (Art. 3) of the Convention provides as follows:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
83. The first applicant contends that he has adequately shown that
he runs a real risk of death or torture in custody if returned to
India, contrary to Article 3 (Art. 3) of the Convention. He refers to
the elements listed above (para. 26 above). He submits that he cannot
be expected to prove such a prediction.
84. It seems likely that the first applicant would be arrested if
returned to India. Whilst the assurances of the Indian Government are
to be taken into account, they are, according to the first applicant,
of little value. The fact is that the Indian Government have been and
continue to be unable to keep in check abuses by their security forces
in the Punjab and elsewhere. No special precautionary measures or
protection have been proposed for him.
85. Neither the Indian legal system nor the Indian Constitution,
given the emergency legislation in force, can offer sufficient
protection against death and torture in custody in cases of terrorist
suspects. For example, the Terrorist and Disruptive Activities
(Prevention) Act 1985, permits police custody without access to family
members or lawyers for up to 60 days, during which time human rights
abuses are rife. The Armed Forces (Special Powers) Act (in force since
1958) provides broadly defined powers to shoot to kill, with virtual
immunity from prosecution. The National Security Act 1980 permits
indefinite detention without trial for preventive purposes on loosely
defined grounds of national security. The first applicant underlines
that, unlike the applicants in the Vilvarajah case, he does not fear
persecution from random terrorist violence in India, but from the State
security forces (cf. Eur. Court H.R., Vilvarajah and Others judgment
of 30 October 1991, Series A no. 215). The situation is unlikely to
improve, given the absence of enduring political initiatives in India.
86. The Home Secretary appears to accept the broad picture of deaths
in custody and torture disclosed by Amnesty International reports on
India. However he concluded that such security force abuses had been
provoked by terrorists. The first applicant disputes this reasoning and
contends that the motives of the torturers are irrelevant to the
Article 3 (Art. 3) issue. Moreover he was unable to challenge this
reasoning before the domestic courts, despite the concerns expressed
by the judges dealing with the case. These concerns were not assuaged
by a mere finding that the United Kingdom Government was not acting
illegally overall in deciding to deport the first applicant.
87. The first applicant contends that it is almost cynical to suggest
that the situation in the Punjab has now greatly improved, when the
decision to deport him was taken, and was to be enforced, at a time
which the Government now concede was highly dangerous (see paras. 63-65
above). Thousands of people were killed annually and there were
notorious human rights abuses, including torture and disappearances,
perpetrated by the security forces and the police especially, towards
people whose custody was frequently not even recorded. If it had not
been for the judicial review and Strasbourg proceedings, the first
applicant would have been sent back to a similar fate. He asserts that
the relevant date for the assessment of the risk he would suffer under
Article 3 (Art. 3) of the Convention was 1 June 1992, the date of the
renewed decision to refuse asylum and to deport him to India,
irrespective of the merits of his asylum claim. This was the period
upon which the domestic courts focused during the judicial review
proceedings.
88. If the Commission considers that it should examine present day
conditions, the first applicant submits that it is too early to say
that the situation in the Punjab is without risk for him, and far too
early to write off the past years of intense violence as if they have
no implications for the present. The creation of the National Human
Rights Commission is to be welcomed, but its effects are not yet felt.
It is noteworthy that in 1994 it was investigating hundreds of
complaints against the Punjab police, and that it had expressed serious
reservations about the unaccountability of the police and the arbitrary
operation of the emergency laws. That Commission's powers are also
severely limited and its membership apparently lacks objective
independence. It cannot replace an independent, impartial, adequately
resourced and accessible judiciary. However, there is no evidence that
the judiciary are yet in a position to control the police and end the
impunity of their operations. As an example of the latter, it is
alleged that certain Sikhs, who have been recently returned by Canada
to India, have been arrested and have either disappeared or have been
detained without charge or trial.
89. Not only does the first applicant assert that he faces a real
risk of treatment contrary to Article 3 (Art. 3) of the Convention, but
he also asserts that the disputed national security question is
irrelevant to the Article 3 (Art. 3) issue. In his view Article 3
(Art. 3) of the Convention, unlike the 1951 United Nations Convention
on the Status of Refugees examined by the domestic courts in the
present case, provides absolute protection against being sent to a
country where such a real risk exists. This absolute protection is not
subject to a qualification of proportionality.
90. Reliance for these propositions is placed, inter alia, on a
comparison with Article 3 (Art. 3) of the 1984 United Nations
Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, the absence of reciprocal obligations in
asylum matters and the fact that the first applicant is not an alien
in the United Kingdom but a Commonwealth citizen with strong ties to
that country and, who, prior to 1971, would have had a right of abode
there.
91. If there is a proportionality issue, the first applicant states
that he has not violated English rules or regulations. He categorically
denies the Government's allegations of terrorist activity. The first
applicant points out that he has not been offered an opportunity to
clear his name and there is evidence that he has been the victim of
misinformation. He contends that none of the elements raised by the
Government constitute a threat to the national security of the United
Kingdom. Certain allegations, such as that involving a ceremonial sword
or misappropriation of funds, are matters which could have been dealt
with by the criminal process. The Government have been unduly
influenced by their reciprocal relations with India and the general
desire to discourage Sikh militancy in the United Kingdom. Such matters
have no relevance to the latter's national security and cannot justify
exposing the first applicant to severe ill-treatment and separation
from his family.
92. The Government deny that the first applicant could be a victim
of a violation of Article 3 (Art. 3) of the Convention. They contend
that, contrary to the view of the Court in the Soering and Vilvarajah
cases, Article 3 (Art. 3) of the Convention has no extra-territorial
effect, but should be construed as a prohibition on a Member State
exposing persons within its own jurisdiction to torture or to inhuman
or degrading treatment (cf. Eur. Court H.R., Soering judgment of 7 July
1989, Series A no. 161, pp. 32-36, paras. 81-91, and Vilvarajah and
Others judgment of 30 October 1991, Series A no. 215, p. 34,
paras. 102-103).
93. Alternatively, the Government contend that, even if Article 3
(Art. 3) of the Convention has extra-territorial effect, the first
applicant's return to India would not involve a breach of the Article.
They place particular reliance on the assurances provided by the Indian
High Commission (para. 38 above) and on the view of one Court of Appeal
judge that much of the evidence of persecution and torture in the past
provided by the applicant was second-hand or even more remote, and
could in part be said to be evidence of impression rather than fact.
They assert that the Sikh troubles have considerably declined and that
this applicant could avoid involvement in possible future incidents by
living outside the Punjab.
94. The Government stress that the first applicant's case has been
considered at the highest level and with extreme care. The Home
Secretary personally took the decision to deport him after considering
the opinion of a panel of qualified advisers, which included a senior
judge. That panel had before it sensitive material which could not be
disclosed to the applicants. Furthermore, there have been two series
of judicial review proceedings following the decision to deport. The
Government refute the applicants' claim that they have been unduly
influenced by false, defamatory reports in the Indian press. This did
not form any part of the Government's information. For the Government,
the first applicant is not merely a threat to public order, but a
terrorist, whose deportation is fully justified on grounds of national
security.
95. The revocation of the deportation order and the release of the
first applicant back into the community would seriously undermine
national security, with the revitalisation of the southern faction of
the ISYF, the recurrence of intimidation of moderate Sikhs in the
United Kingdom, the commission of further terrorist acts there, the
increase in the financing, direction and control of terrorist
operations outside the United Kingdom, especially in India, and the
encouragement of Sikh terrorists to regard the United Kingdom as a safe
haven from which they can continue their terrorist activities.
Moreover, the negative effect on the general fight against terrorism
cannot be ignored.
96. On the basis of the test laid down in the Vilvarajah judgment
(Eur. Court H.R., Vilvarajah and Others judgment of 30 October 1991,
Series A no. 215, p. 34, paras. 102-103), the Government contend that
the first applicant does not face a real risk of torture or persecution
in the Punjab or elsewhere in India for the following reasons:
a) Sikhs are not a persecuted group per se; India has a
secular constitution which guarantees freedom of religious
belief and practice to all, as well as an independent
judiciary;
b) the principal events upon which the first applicant based
his claim for asylum occurred in India before 1985;
c) the events of early 1984 should be viewed in the context of
a significant increase of terrorist activity in the Punjab
in 1984, heightened tension in that region and ill-
discipline on the part of the members of the Indian
security forces;
d) whilst the Amnesty International reports were substantially
accurate in demonstrating that serious human rights
violations had been committed by individual members and
groups within the Indian security forces in the Punjab, it
was not accepted that each and every aspect of those
reports was true; the majority of the alleged incidents
were not capable of independent or objective verification;
e) furthermore, the Amnesty International reports failed to
recognise what, in the Government's view, was the principal
reason for the presence of the Indian security forces in
the Punjab, namely the combating of serious terrorist
activity and the maintenance of law and order;
f) the situation in the Punjab has been positively transformed
over the last 18 months, the number of reported deaths in
terrorist related incidents having been reduced to a
minimum and the democratic processes having been restored;
therefore, the material relied on by the applicants,
including Amnesty reports, is out of date and no
conclusions can be drawn, in relation to the first
applicant's present position, from uncorroborated details
of cases of individual abuse which occurred before the
situation improved;
g) the international criticism of the abuse of detainees and
other human rights abuses by law enforcement authorities is
now being taken seriously by the Indian Government, which
has demonstrated a clear change in attitude, with the
creation, for example, of the National Human Rights
Commission (see para. 64 above);
h) the Canadian High Commission have followed up recent cases
of people returned to India who claimed terrorist
involvement and likely ill-treatment as a result, but in no
case have such claims been borne out;
i) if the first applicant were returned to India, there is a
prospect that he would be arrested and charged with
terrorist offences according to Indian law;
j) if so charged, the first applicant would receive full
protection by the Indian Government from mistreatment while
held in custody; given his profile, there is bound to be
considerable press and public interest in him, which
reduces the risk of abuse;
k) if the first applicant were not arrested by the Indian
authorities on his return to India, but remained at
liberty, then he faces a risk (as does any other person in
the Punjab) of violence from terrorist outrage;
l) insofar as the first applicant faces a risk from the
activities of members of the security forces acting outside
the law, such violations of Indian law have not been
condoned by the Indian or state Governments, and the first
applicant will benefit from the High Commissioner's
assurance.
97. An alien on British territory enjoys absolute protection from
ill-treatment contrary to Article 3 (Art. 3) of the Convention. However
it is argued that Article 3 (Art. 3) is subject to implied limitations,
qualifications or derogations, where it is proposed to deport an alien
outside the jurisdiction of the Convention for reasons of national
security.
98. The Government contend that it has been a constant theme in
international jurisprudence over the centuries that the right of an
alien to refuge is subject to necessary qualifications. Asylum is to
be enjoyed by people "who suffer from undeserved enmity, not those who
have done something that is injurious to human society or to other men"
(Hugo Grotius "De Jure Belli ac Pacis" (1623)). This is reflected in
Articles 32 and 33 of the 1951 Convention Relating to the Status of
Refugees.
99. The Government submit that Article 3 (Art. 3) was never intended
to cover cases of the present kind. Contracting Parties have a right
and duty to weigh the risk of torture against the harm caused to
national security by the continued presence of an alien on its
territory. However this balancing exercise is non-justiciable. It
cannot be the role of the national courts or the Convention organs to
make any searching judicial scrutiny of national security matters, once
raised by the Member State in good faith. It is not possible to
evaluate the evidence on which the executive bases its decisions on
national security.
100. The Government aver that their decision on national security in
relation to the first applicant has been made in good faith and
possesses substance. It has been weighed against his personal
circumstances.
101. The Commission rejects the Government's challenge to the constant
case-law of the Convention organs under Article 3 (Art. 3) of the
Convention and reaffirms the following principles:
"103. ... (the) expulsion by a Contracting State of an asylum
seeker may give rise to an issue under Article 3 (Art. 3), and
hence engage the responsibility of that State under the
Convention, where substantial grounds have been shown for
believing that the person concerned faced a real risk of being
subjected to torture or to inhuman or degrading treatment or
punishment in the country to which he was returned. ...
107. ... (2) Further, since the nature of the Contracting
State's responsibility under Article 3 (Art. 3) in cases of this
kind lies in the act of exposing an individual to the risk of
ill-treatment, 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 the
expulsion; the [Convention organs are] not precluded, however,
from having regard to information which comes to light subsequent
to the expulsion. ...
... (3) Ill-treatment must attain a minimum level of
severity if it is to fall within the scope of Article 3 (Art. 3).
The assessment of this minimum is, in the nature of things,
relative; it depends on all the circumstances of the case.
108. The [Convention organs'] examination of the existence of a
risk of ill-treatment in breach of Article 3 (Art. 3) at the
relevant time must necessarily be a rigorous one in view of the
absolute character of this provision and the fact that it
enshrines one of the fundamental values of the democratic
societies making up the Council of Europe." (Eur. Court H.R.,
Vilvarajah and Others judgment of 30 October 1991, Series A no.
215, p.34, para. 103, and p.36, paras. 107-108.)
102. The Commission is further unable to accept the Government's
submission that Article 3 (Art. 3) of the Convention may have implied
limitations entitling the State to expel a person because of the
requirements of national security, notwithstanding the existence of a
real risk that the person concerned would be subjected to torture or
to inhuman or degrading treatment in the receiving State. As appears
from the above passage in the Vilvarajah and Others judgment, the
guarantees of Article 3 (Art. 3) of the Convention are of an absolute
character, permitting no exception.
103. For the same reason, the Commission cannot accept the
Government's submission that under Article 3 (Art. 3) of the Convention
the risk of ill-treatment, if the person is to be returned, is to be
weighed against the threat to national security if he remains in the
deporting State. It is true that in its Soering judgment (Eur. Court
H.R., Soering judgment of 7 July 1989, Series A no. 161, p. 35,
para. 89), the Court observed that "inherent in the whole of the
Convention is a search for a fair balance between the demands of the
general interest of the community and the requirements of the
protection of the individual's fundamental rights." The Court moreover
noted that the danger for a State obliged to harbour a fugitive was a
consideration which must "be included among the factors to be taken
into account in the interpretation and application of the notions of
inhuman and degrading treatment or punishment in extradition cases."
104. Nevertheless, once the risk to the individual of being subjected
to such treatment has been established, it is not the case, in the
Commission's view, that the individual's background, or the threat
posed by him to the national security of the deporting State, can be
weighed in the balance so as to reduce the level of protection afforded
by the Convention. To this extent the Convention provides wider
guarantees than Articles 32 and 33 of the 1951 United Nations
Convention Relating to the Status of Refugees. While it is accepted
that this may result in undesirable individuals finding a safe haven
in a Contracting State, the Commission observes that the State is not
without means of dealing with any threats posed thereby, the individual
being subject to the ordinary criminal laws of the country concerned.
105. Accordingly, even if the Commission were in a position to assess
for itself the strength of the Government's untested allegations about
the first applicant's terrorist activities and the threat posed by him
to national security, this could not affect the central question which
requires determination under Article 3 (Art. 3) of the Convention,
namely whether the first applicant has shown substantial grounds for
believing that he faces a real risk of being subjected to torture or
inhuman or degrading treatment or punishment if returned to India.
106. A further issue is raised as to the point of time at which this
risk is to be assessed. It is submitted by the first applicant that his
complaint under Article 3 (Art. 3) of the Convention must principally
focus on the foreseeable consequences of his deportation to India in
June 1992, when the Home Secretary expressed his renewed determination
to proceed with the deportation measure. It is pointed out that it was
this period which was under scrutiny before the domestic courts.
Reliance is placed in this regard on the observations of the Court in
the Vilvarajah and Others judgment that 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
the expulsion, even though regard may also be had to information which
comes to light thereafter (para. 101 above).
107. The Commission cannot accept this argument. The Convention
organs are required to determine whether, if returned, an applicant
faces a real risk of treatment contrary to Article 3 (Art. 3) of the
Convention. It follows that this assessment must be made at the time,
and on the basis of information available, when the deportation is to
take place. In this respect the case of Vilvarajah and Others is to be
distinguished from the present case since the expulsion had already
occurred when the Court was considering those applications. In the
present case, although it was the intention to deport the first
applicant in June 1992, the deportation did not take place and he
continues to remain in custody awaiting deportation. In these
circumstances, the Commission must consider whether, on the information
currently available, there are substantial grounds to believe that, if
deported, the first applicant would face a real risk of being subjected
to treatment contrary to Article 3 (Art. 3). In making this assessment,
the Commission has nevertheless had regard to all the information made
available to it by the parties as to the conditions prevailing in
India, and as to the gravity of the risk posed to the first applicant,
throughout the period in which he has been threatened with deportation.
108. The Commission notes that the Government now concede that 1992
was a particularly violent year in India, with 4000 deaths having been
recorded in terrorist related incidents, mainly in the Punjab. They
have also implicitly recognised that human rights abuses by the Indian
police were widespread, and that the police were relatively
unaccountable for their unlawful acts, a fact which was not helped by
the broad powers conferred by the Terrorist and Disruptive Activities
(Prevention) Act 1985. This view is strongly reinforced by Amnesty
International reports, which are both detailed and specific in their
evidence of serious human rights violations against Sikhs by individual
members and groups within the Indian security forces. As a prominent
Sikh militant, the risk to the first applicant was likely to be more
serious than that posed to other members of the Sikh community, a view
confirmed by the representations made by Amnesty International to the
Home Secretary to the effect that, if sent to India against his will,
the first applicant would be at risk of torture, "disappearance" or
extrajudicial execution.
109. The Government argue that, whatever the risk posed to the first
applicant in 1991 and 1992 when the reports relied on by him were
prepared, conditions in the Punjab have improved considerably and the
security situation has been transformed, thereby substantially reducing
the risk of ill-treatment if the first applicant were now to be
returned to India. In particular, reliance is placed on the fact that
the number of terrorist related deaths in the Punjab has fallen from
4000 in 1992 to 394 in 1993, and to 51 by the autumn of 1994. Reliance
is also placed on what is said to be a definitive change in the Indian
Government's attitude towards human rights and to the creation of the
National Human Rights Commission ("NHRC"), which had reported
positively on the improvement of the situation in the Punjab in 1994.
110. As regards the particular position of the first applicant, the
Government submit that, given his high profile, there is bound to be
considerable press and public interest in him should he be deported to
India, and that this may, in itself, serve to limit any risk of
custodial abuse. This is reinforced by the specific undertaking of the
Indian Government of June 1992 (para. 38 above) and by the agreement
of the United Kingdom Government to return the first applicant to any
international airport of his choice in India.
111. On the basis of the material before it, the Commission accepts
that there has been an improvement in the conditions prevailing in
India and, more especially, in the Punjab. The establishment of the
NHRC represents, in the view of the Commission, a particularly
significant development for the proper protection of human rights.
Nevertheless, the Commission is unable to find in the recent material
provided by the Government any solid evidence that the police are now
under democratic control or that the judiciary has been able fully to
reassert its own independent authority in the Punjab. In this
connection, the Commission recalls the complaints recorded in 1994 by
the NHRC against the police of arbitrary arrests, disappearances,
custodial deaths, fake encounters resulting in killings and the
continuing unaccountability of the police, reinforced by their powers
under the Terrorist and Disruptive Activities (Prevention) Act 1985
(para. 74 above).
112. As to the specific position of the first applicant, the
Commission notes the uncontested claims made by him as to his past
experiences in India and the grounds for believing that his return to
India in 1992 would have been likely to expose him to serious ill-
treatment (para. 26 above). The Commission sees no reason to doubt the
continuing validity of those grounds. Further, the Commission is unable
to accept the Government's argument that the first applicant's high
public profile would be likely to reduce the risk, particularly if he
were to return to a part of India other than the Punjab. As a leading
Sikh militant, who is suspected of involvement in acts of terrorism,
and who is to be deported because of the threat he poses to the
security of the United Kingdom, the first applicant is likely to be a
person of special interest to the security forces, irrespective of the
part of India to which he is returned.
113. As to the express assurance given by the Indian Government that
the first applicant would enjoy the same legal protection as any other
Indian citizen and would have no reason to expect to suffer ill-
treatment of any kind at the hands of the Indian authorities, the
Commission is impressed by the good faith shown by the Indian
Government in providing such an assurance. Nevertheless, having regard
to the current conditions referred to above, the Commission is not
satisfied that the assurance provides an effective guarantee for the
safety of the first applicant if returned to India.
114. In the light of these considerations, the Commission is of the
opinion that substantial grounds have been established for believing
that the first applicant would be exposed to a real risk of ill-
treatment, contrary to Article 3 (Art. 3) of the Convention, if
deported to India.
Conclusion
115. The Commission unanimously concludes that there would be a
violation of Article 3 (Art. 3) of the Convention if the first
applicant were to be deported to India.
D. As regards Article 5 para. 1 (Art. 5-1) of the Convention
116. Article 5 para. 1 (Art. 5-1) of the Convention, as far as
relevant, provides as follows:
"1. Everyone has the right to liberty and security of person.
No one shall be deprived of his liberty save in the following
cases and in accordance with a procedure prescribed by law:
...
f. the lawful arrest or detention ... of a person against
whom action is being taken with a view to deportation ...".
117. The first applicant submits that he has suffered a breach of this
provision because for much of the period since 14 August 1990 his
detention has not been "with a view to deportation". Instead the
proceedings have involved consideration of his asylum applications and
judicial review. These proceedings have been ineffective because of the
Government's tactics of minimum disclosure. The first applicant also
claims that the proceedings were not determined speedily since he has
been detained now for nearly five years, a period which is the
equivalent of a substantial sentence for a serious crime. He states
that it has never been alleged that he would abscond or not answer his
bail if released from detention. His substantial family ties in the
United Kingdom indicate that he would have no interest in doing so.
118. The Government contend that the first applicant has been lawfully
detained since 14 August 1990 under Article 5 para. 1 (f) (Art. 5-1-f)
of the Convention pending the deportation proceedings. In the light of
the national security considerations in the case, his release on bail
was inappropriate. The Government maintain that the case received
speedy judicial determination at the domestic level, the judicial
review proceedings being dealt with faster than usual.
119. As to the former complaint, the Commission considers that, in
principle, the first applicant has been lawfully detained under
Article 5 para. 1 (f) (Art. 5-1-f) of the Convention as a "person
against whom action is being taken with a view to deportation". It
would be unduly narrow to interpret Article 5 para. 1 (f) (Art. 5-1-f)
as confined to cases where the person is detained solely to enable the
deportation order to be implemented. The words of the provision are
broad enough to cover the case where the person is originally detained
with a view to deportation, but challenges that decision or claims
asylum, and continues to be detained pending determination of that
challenge or claim. The first applicant was detained with a view to
deportation in August 1990. The deportation order was made in July
1991. The applicant continues to be detained for the purpose of giving
effect to that order. The fact that implementation of the decision to
deport was suspended while the Secretary of State considered the asylum
request and reconsidered the request after the judicial review
proceedings, does not affect the purpose or lawfulness of the
detention.
120. The complaint concerning the length of the first applicant's
detention was originally made under Article 5 para. 4 (Art. 5-4) of the
Convention, but the Commission considers it appropriate to examine it
first under Article 5 para. 1. (Art. 5-1) The issue which arises is
whether the first applicant's detention has ceased to be justified
because the proceedings have not been pursued with the requisite speed
(cf. Eur. Court H.R., Kolompar judgment of 24 September 1992, Series
A no. 235, p. 55, para. 36). The first applicant has been detained now
for nearly five years, albeit partly awaiting the outcome of the
Strasbourg proceedings. Nevertheless, an examination of the domestic
proceedings does not demonstrate particular diligence: three months
elapsed between the grant of leave and the first judicial review
proceedings; six months elapsed between the quashing of the first
deportation decision and the taking of the second decision; seven
months elapsed between the second grant of leave and the second
judicial review proceedings, and eight months elapsed between the
second judicial review proceedings and the determination of the first
applicant's appeal. Therefore the judicial review proceedings alone
resulted in a delay of some eighteen months, during the whole of which
period the first applicant remained in detention.
121. The Government's submission that, by comparison with the norm,
the case was dealt with expeditiously is unconvincing when the person
is detained pending deportation, unconvicted and without charge. It
is important that proceedings to challenge the decision to deport
should be handled with the utmost expedition. It is true that in one
sense the first applicant profited from the delay in returning him to
India, in the same way as any person profits who is facing deportation
or extradition. However, the Commission notes that his complaint is not
that he was not sent back more quickly, but rather that he was kept in
detention pending the decision being taken as to whether he should or
should not be deported. Moreover, it cannot be said that there was any
abuse of the judicial review process by the first applicant in order
to delay his deportation.
122. In these circumstances, the Commission is of the opinion that the
proceedings in the present case were not pursued with the requisite
speed and that, therefore, the first applicant's detention ceased to
be justified.
Conclusion
123. The Commission unanimously concludes that there has been a
violation of Article 5 para. 1 (Art. 5-1) of the Convention by reason
of the length of the first applicant's detention.
E. As regards Article 5 para. 4 (Art. 5-4) of the Convention
124. Article 5 para. 4 (Art. 5-4) of the Convention reads as follows:
"Everyone who is deprived of his liberty by arrest or detention
shall be entitled to take proceedings by which the lawfulness of
his detention shall be decided speedily by a court and his
release ordered if the detention is not lawful."
125. The first applicant claims under Article 5 para. 4 (Art. 5-4) of
the Convention to have been denied an opportunity effectively to
contest the lawfulness of his detention before the domestic courts,
because of the broad effect of the untested national security
allegations against him. This is confirmed by the change in the
evidential basis of the case, only put to the Commission in December
1994 and previously not known to the applicants. Hence it could not be
challenged and tested by the domestic courts. The first applicant also
claims that the judicial review proceedings were not determined
speedily.
126. The Government contend that the first applicant had adequate
judicial control of the lawfulness of his detention in his two bail
applications, which were dealt with by the High Court, and that the
proceedings were handled speedily.
127. As to the former complaint, the Commission notes that the issue
of the adequacy of the remedies at the disposal of the first applicant
was principally addressed by the parties under Article 13 (Art. 13) of
the Convention and generally limited to argument about the remedy of
judicial review. The Commission is of the opinion that it is more
appropriate to consider this issue under Article 13 (Art. 13) of the
Convention (see paras. 141-151 below).
128. As to the complaint concerning the speediness of the proceedings,
the Commission considers that in view of its conclusion that the
duration of the first applicant's detention gave rise to a violation
of Article 5 para. 1 (Art. 5-1) of the Convention, it is not necessary
to examine this complaint separately under Article 5 para. 4 (Art. 5-
4).
Conclusion
129. The Commission concludes, by 16 votes to 1, that it is not
necessary to examine the complaints under Article 5 para. 4 (Art. 5-4)
of the Convention.
F. As regards Article 8 (Art. 8) of the Convention
130. Article 8 (Art. 8) of the Convention, as far as relevant,
provides as follows:
"1. Everyone has the right to respect for his private and
family life ... .
2. There shall be no interference by a public authority with
the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests
of national security ...".
131. The applicants allege that the deportation of the first applicant
would breach their right to respect for private and family life. They
underline the fact that, if there was any cogent evidence against the
first applicant of terrorist activities in the United Kingdom, a
criminal prosecution could have been instituted against him. The
absence of such a prosecution casts grave doubts on the allegations and
the material upon which the Home Secretary has based his decisions.
This shows that the national security reasons are not serious or
compelling. The first applicant is a victim of a sophisticated
distortion of information perpetrated by or on behalf of the Indian
Government and by untrue Indian newspaper reports. Information which
is short of admissible evidence in a criminal case should not form the
basis of a decision to expose someone to a risk of torture.
132. The applicants deny that the first applicant's deportation is
justified on national security grounds. They rely on the same reasons
as those put forward by the first applicant in refuting the national
security allegations under Article 3 (Art. 3) of the Convention. The
applicants point out that the first applicant has strong, settled ties
in the United Kingdom, having lived there for 19 years and founded a
family. He should therefore not be treated differently from other
Commonwealth citizens who, not so long ago, had a common law right of
abode in that country. Reliance is placed on the Beljoudi judgment
(Eur. Court H.R., Beldjoudi judgment of 26 March 1992, Series A
no. 234-A).
133. The Government accept that the deportation of the first applicant
would constitute an interference with the applicants' rights to respect
for family life. However, the Government submit that the interference
is necessary in the interests of national security, within the meaning
of the second paragraph of Article 8 (Art. 8). The Government consider
that the Commission is not in a position to evaluate the extreme
seriousness of the national security risk posed by the first applicant
in the present case. It is further submitted that the strength of the
national security case is by no means undermined by the absence of any
successful criminal prosecution against the first applicant: much of
the material upon which the Home Secretary has been acting is of a
confidential nature and could not be deployed in criminal proceedings.
134. The Commission notes that the interference with the applicants'
right to respect for private and family life was in accordance with the
law and pursued the legitimate aim of protecting the interests of
national security. The only remaining issue, therefore, is whether the
deportation of the first applicant would be proportionate to that aim
and, therefore, "necessary in a democratic society" within the meaning
of Article 8 para. 2 (Art. 8-2) of the Convention.
135. The Commission considers that the interference with the Article
8 (Art. 8) rights of the applicants is a serious one. The first
applicant has lived lawfully in the United Kingdom for some 19 ½ years
and his wife 19 years; their two children were born and brought up in
the United Kingdom and are United Kingdom's citizens. Both are still
teenagers. The deportation of the first applicant would almost
certainly lead to a permanent break up of the family. While the first
applicant clearly still has close family links in India, there is a
strong risk that if returned he would be arrested and detained, quite
possibly for a substantial period without charge or trial and, on any
view, with some risk that he would be ill-treated.
136. Whilst the Commission acknowledges that States enjoy a wide
margin of appreciation under the Convention where matters of national
security are concerned, with possibly lower standards of proof being
required under Article 8 (Art. 8) compared to Article 3 (Art. 3), it
remains ultimately for the Government to satisfy the Commission that
the grave recourse of deportation is in all the circumstances both
necessary and proportionate.
137. The Commission is struck by the fact that the first applicant has
no criminal record. He has not been convicted of any terrorist crime
or indeed of any serious crime, even though it is clear that the
allegations made against him would, if proved, constitute serious
offences in both the United Kingdom and India. It may be true that
terrorist offences are difficult to prove because of the problems of
obtaining admissible and usable evidence. Nevertheless, it is apparent
from the experience in the United Kingdom that successful prosecutions
for terrorist offences are possible.
138. Further, the Commission observes that the matters which are now
relied on by the Government, in support of their claim that the first
applicant poses a threat to national security, were not placed before
the domestic courts, and that the allegations against him remain
untested.
139. Having regard to these various considerations, the Commission is
of the opinion that, even allowing for the wide margin of appreciation
afforded to the Government, the decision to deport the first applicant,
if put into effect, would not be proportionate to the legitimate aim
pursued, and would not therefore be necessary within the meaning of
Article 8 para. 2 (Art. 8-2) of the Convention.
Conclusion
140. The Commission unanimously concludes that there would be a
violation of Article 8 (Art. 8) of the Convention if the first
applicant is deported to India.
G. As regards Article 13 (Art. 13) of the Convention
141. Article 13 (Art. 13) of the Convention reads as follows:
"Everyone whose rights and freedoms as set forth in this
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."
142. The applicants maintain that they had no effective remedy for
their Convention claims. They contend that the evaluation by the
European Court of Human Rights of the efficacy of judicial review in
the Vilvarajah case is flawed, but that anyway their application is
distinguishable.
143. It is contended that English courts have no jurisdiction to
establish the existence of a risk of torture in the receiving State.
The courts may not go beyond the terms of the immigration rules which
make no reference to the Convention or the UN Convention against
Torture. The national security allegations reduce even further the
review which could be made by the domestic courts. Significantly, since
the Vilvarajah case, a right of appeal to an independent adjudicator
has been created by the Asylum and Immigration Appeals Act 1993 for
those refused asylum, except in national security cases of the present
kind.
144. The amplified national security case presented to the Commission
by the Government in their observations on 23 December 1994,
demonstrates even further the need for a fair and effective hearing at
which allegations are made and substantiated, and an opportunity given
to rebut them. In the United Kingdom where the "public good" in removal
is relied on, the whole process of investigating and determining asylum
claims under any humanitarian obligation, and determining the existence
of reasons of national security and other reasons of public good, are
dealt with as a matter of unchallengeable executive discretion.
145. The Commission has been given data which was not before the
national courts. In the applicants' submission, it cannot be said that
the Members of the Commission could be trusted with material not
suitable for disclosure to such courts. The nature of the material
disproves any overriding question of confidentiality. The national
courts and the applicants appear to have been misled as to the limits
of disclosure and deprived of material which could have been considered
domestically.
146. The Government rely on the Court's jurisprudence in the case of
Soering and Vilvarajah for the proposition that judicial review
provides an adequate remedy in cases of the present kind (Eur. Court
H.R., Soering judgment of 7 July 1989, Series A no. 161, and Vilvarajah
and Others judgment of 30 October 1991, Series A no. 215).
147. The Commission is required to consider whether the applicants had
an effective remedy, by way of judicial review, in respect of their
claims under the Convention, that is, the first applicant's claims
under Articles 3 and 5 (Art. 3-5) of the Convention, and all the
applicants' claims under Article 8 (Art. 8).
148. The Commission notes that in its Vilvarajah and Others judgment,
the Court held that the scope of the domestic courts' review of the
Home Secretary's refusal to grant asylum was sufficiently wide to
satisfy the requirements of Article 13 (Art. 13) of the Convention
(above mentioned Vilvarajah and Others judgment, pp. 39-40, paras. 123-
127).
149. However, the present case is distinguishable from that of
Vilvarajah and others, having regard to the national security claim.
As appears from the Court of Appeal's judgment (paras. 43-46 above),
where national security considerations are invoked as a ground for the
deportation decision, the powers of review of domestic courts are
limited to determining, first, whether the decision of the Home
Secretary that the deportation was required for reasons of national
security was irrational, perverse or based on a misdirection and,
secondly, whether there was sufficient evidence that the Home Secretary
balanced the gravity of the national security risk against all other
circumstances, including the likely risk of persecution if the person
were deported.
150. As the Court of Appeal pointed out, the scrutiny of the claim
that a person should be deported in the interests of national security
may in practice be defective or incomplete if all the relevant facts
are not before the courts. This deficiency is illustrated by the facts
of the present case, in that the domestic courts did not even have
available to them the further information which has been put before the
Commission concerning the perceived threat posed by the first applicant
to the national security of the United Kingdom.
151. Furthermore, even when the relevant facts are before the courts,
they are not empowered to carry out their own assessment of the
respective risks, but are confined to reviewing whether there is
sufficient evidence that the necessary balancing exercise has been
carried out by the Home Secretary. Provided there is such evidence, the
courts are powerless to interfere, however strong the risk of treatment
contrary to Article 3 (Art. 3) of the Convention which is faced by the
applicant if returned to the country in question.
152. In the Commission's opinion, the power of review by United
Kingdom courts when national security is invoked is too restrictive to
satisfy the requirements of Article 13 (Art. 13) of the Convention.
Conclusion
153. The Commission unanimously concludes that there has been a
violation of Article 13 (Art. 13) of the Convention.
H. Recapitulation
154. The Commission unanimously concludes that there would be a
violation of Article 3 (Art. 3) of the Convention if the first
applicant is deported to India (para. 115 above).
155. The Commission unanimously concludes that there has been a
violation of Article 5 para. 1 (Art. 5-1) of the Convention by reason
of the length of the first applicant's detention (para. 123 above).
156. The Commission concludes, by 16 votes to 1, that it is not
necessary to examine the complaints under Article 5 para. 4 (Art. 5-4)
of the Convention (para. 129 above).
157. The Commission unanimously concludes that there would be a
violation of Article 8 (Art. 8) of the Convention if the first
applicant is deported to India (para. 140 above).
158. The Commission unanimously concludes that there has been a
violation of Article 13 (Art. 13) of the Convention (para. 151 above).
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
PARTIALLY DISSENTING OPINION OF MR. TRECHSEL
While I am generally in agreement with the majority of the
Commission, I voted against the conclusion set out in para. 129,
according to which it was not necessary to examine the complaints under
Article 5 para. 4 of the Convention.
In my view the finding that the first applicant's detention was
not in conformity with the requirements of Article 5 para.1 of the
Convention does not cover the issue of habeas corpus proceedings. The
need for such a control is particularly acute whenever problems arise
under the first paragraph of Article 5.
I also note that the opinion expressed by the majority is hardly
in conformity with the Court's case-law. In this respect I refer to the
Bouamar judgment (Eur. Court H.R., Bouamar judgment of
29 February 1988, Series A no. 129) where violations both of Article 5
paras. 1 and 4 of the Convention were found.
Having regard to the facts of the present case, it must be that
Article 5 para. 4 was violated for the same reasons as those put
forward in this Report with regard to the violation of Article 13 of
the Convention.
APPENDIX I
HISTORY OF THE PROCEEDINGS
Date Item
_________________________________________________________________
27.07.93 Introduction of application
04.08.93 Registration of application
Examination of admissibility
30.07.93 Rule 36 granted
08.09.93 Commission's decision to communicate the
case to the respondent Government and to
invite the parties to submit observations
on admissibility and merits
23.12.93 Government's observations
07.04.94 Applicants' observations in reply
16.05.94 Commission's decision to hold a hearing
22.07.94 President's grant of legal aid
01.09.94 Hearing on admissibility and merits.
Commission's decision to declare
application in part admissible and in part
inadmissible
Examination of the merits
12.09.94 Decision on admissibility transmitted to
parties. Invitation to parties to submit
further observations on the merits
28.10.94 Applicants' observations
23.12.94 Government's observations
14.01.95 Commission's consideration of state of
proceedings
31.03.95 Applicants' further observations
20.05.95 Commission's consideration of state of
proceedings
27.06.95 Commission's deliberations on the merits,
final vote and consideration of text of
the Report. Adoption of Report